Massachusetts Trial Court Mass.Gov/Courts

SEMINAR

Practicing with Professionalism Program Materials

FACULTY

Kendra L. Berardi, Esq. Heather L. LaVigne, Esq. Robinson + Cole LLP, Boston Board of Bar Overseers, Commonwealth of Massachusetts

Alissa Brill, Esq. Susan Letterman White, J.D., M.S. Volunteer Lawyers Project of the Boston Bar Massachusetts Law Office Management Assistance Association (VLP), Boston Program (LOMAP), Boston

Scott D. Burke, Esq. Patricia A. Levesh, Esq. Morrison Mahoney LLP, Boston Greater Boston Legal Services, Boston

Gabriel Cheong, Esq. Jack Marshall, Esq. Infinity Law Group LLC, Quincy ProEthics, Ltd., Alexandria, VA

Hon. Dennis J. Curran Donna Jalbert Patalano, Esq. Superior Court, Commonwealth of Massachusetts Suffolk District Attorney's Office, Commonwealth of Massachusetts Manmeet K. Desai, Esq. Charles River Associates, Boston Kathryn D. Stone, Esq. Prince Lobel Tye LLP, Boston Dr. Jeffrey Fortgang, Ph.D. Lawyers Concerned for Lawyers, Inc., Boston Sara Ann K. Supple, Esq. Chicago and Commonwealth Title Insurance Companies Steven E. Gurdin, Esq. Fitch Law Partners LLP, Boston Jessica P. Thrall, Esq. Federal Public Defender Office, Boston Melissa Langa, Esq. Bove & Langa, PC, Boston Peter Wittenborg, Esq. Real Estate Bar Association for Massachusetts, Boston

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iii Massachusetts Continuing Legal Education, Inc.

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iv About the Faculty

KENDRA L. BERARDI is an associate with the real estate litigation and title insurance practice group at Robinson & Cole LLP in Boston. She focuses her practice on real estate litigation, zoning appeals, representation of title insurance companies and their insureds, and condominiums. Prior to joining Robinson & Cole, Ms. Berardi served as a law clerk for Chief Justice Karyn Scheier of the Massachusetts Land Court. Ms. Berardi is currently a member of the Boston Bar Association, the cochair of the ABA young lawyers subcommittee of the real estate litigation committee, the cochair of the young lawyers committee of the Massachusetts Real Estate Bar Association (REBA), and a member of the REBA board of directors. Ms. Berardi is a graduate of Butler University and a cum laude graduate of Western New England University School of Law.

ALISSA BRILL is a staff attorney at the Volunteer Lawyers Project of the Boston Bar Associa- tion, where she represents and assists low-income clients in the greater Boston area in family law and guardianship matters. She is a graduate of the University of Rochester and Northeastern University School of Law.

SCOTT D. BURKE is the managing partner of Morrison Mahoney LLP, a firm with over 170 attorneys in eleven offices. He has been with the firm since 1990, and a partner since 1995. Mr. Burke formerly chaired the firm’s professional liability department (non-medical) and concentrated in the defense of professionals (legal, financial services, directors and officers, real estate, etc.) against claims of malpractice and improper employment practices before state and federal trial and appellate courts and administrative agencies. In that position, he directly supervised and managed a staff of twelve attorneys in the Boston office, and coordinated the non- medical professional liability practice of the firm’s regional branches. Mr. Burke is a member of the Massachusetts Bar Association committee on professional ethics and is a frequent presenter to national, regional, and state professional groups and law firms on a variety of subjects including ethics, risk management, data breach, electronic discovery, and litigation strategy. He also serves as in-house ethics counsel at his firm. He is admitted to practice in Massachusetts, New York, and New Hampshire. Prior to joining Morrison Mahoney, he served as an assistant district attorney in Manhattan, NY, in the office of Robert M. Morgenthau. Mr. Burke graduated cum laude from the Georgetown University Law Center in 1987, where he was a member of and published in The American Criminal Law Review, and cum laude in 1984 from the University of Massachusetts at Amherst with a B.S. in psychology.

GABRIEL CHEONG is the owner of Infinity Law Group LLC in Quincy. He holds a J.D. from Northeastern University School of Law, a B.S. in computer science, and a B.A. in mathematics from Binghamton University. Mr. Cheong started his own firm straight out of law school. His firm grew steadily for the first year until he had the opportunity to purchase the law firm where he once interned in law school. In 2008, Mr. Cheong purchased Infinity Law Group LLC and is now running his law firm while blogging, marketing, and giving seminars on marketing and law practice management on a regular basis. His law practice is primarily focused on divorce and family law litigation and mediation. Mr. Cheong currently serves on the board of trustees of

v MCLE and also as the president of Starting Out Solo, Inc., a bar association devoted to helping attorneys who start a private practice after law school succeed. In his spare time, Mr. Cheong enjoys the company of his house rabbit.

HON. DENNIS J. CURRAN is an associate justice of the Massachusetts Superior Court. He received his law degree from the University of Virginia School of Law. At the University of Penn- sylvania, he graduated magna cum laude, earning both his bachelor and master’s degrees in an accelerated four-year program. A native of Boston, Justice Curran graduated from Boston Latin School. He serves as an adjunct professor of law at the Roger Williams University School of Law, where he also serves on the law school’s board of advisors. In 2015, Justice Curran was awarded the Massachusetts Bar Association's Chief Justice Edward F. Hennessey Award for "having demonstrated extraordinary leadership and dedication to improving the administration of justice and upholding the highest traditions for public service.” The award has been bestowed only seven times in the past twenty-eight years. In 2016, Justice Curran received the President’s Award for Judicial Excellence, granted by the Massachusetts Academy of Trial Attorneys, for “his deep commitment and belief in the civil justice system, his many contributions to society, and his continued dedication to the law.” On May 7, 2017, Justice Curran received the Judiciary Award bestowed by the Sons of Italy Commission for Social Justice. On May 16, 2017, he will receive the William Whiting Judicial Courage Award, so honored by the Massachusetts chapter of the American Board of Trial Advocates. Before his judgeship, he served as first assistant legal counsel to the governor and as an assistant district attorney in a career criminal prosecution unit in Suffolk County. He was a Boston trial attorney for over twenty years, having achieved an “AV” rating (the highest possible rating for professional excellence and ethical standards) from Martindale-Hubbell. He has achieved board-certification as a civil trial advocate by the National Board of Trial Advocacy, and has also been elected for admission into the American Board of Trial Advocates. The governor first nominated Justice Curran in 2002 as an associate justice to the District Court; he served in the newly-constructed Boston Municipal Court in 2003, and just three years later, the governor nominated him as an associate justice of the Superior Court, where he has served for over a decade. He serves on the board of directors for the Justinian Law Socie- ty, the board of advisors for the Roger Williams School of Law, and the board of directors of the Lincoln Forum. Justice Curran has a strong public policy interest in civil case flow management and (alternative) dispute resolution. As a trial judge, he has presided over 445 civil and criminal trials.

MANMEET K. DESAI is an associate at Charles River Associates International, Inc. in Boston, where she specializes in immigration and global mobility as well as general employment matters. She received her undergraduate and graduate degrees from Texas A&M University and her law degree from New England Law | Boston, with a specialized concentration in immigration law. Ms. Desai is the vice president of the South Asian Bar Association of Greater Boston (SABA GB) and has served on the SABA GB board for nearly three years. She was previously a liaison for the new members division for the New England chapter of the American Immigra- tion Lawyers Association and sat on the women’s initiative committee for the Association of Corporate Counsel.

vi DR. JEFFREY FORTGANG is a licensed psychologist and licensed alcohol and drug counselor at Lawyers Concerned for Lawyers, Inc. (LCL) in Boston, as well as a former clinical instructor in psychology at Harvard Medical School. His career has included working in and directing both inpatient and outpatient programs in the greater Boston area. He has become well acquainted with the lives and stresses of lawyers throughout his nineteen years on LCL’s staff. Dr. Fortgang provides clinical consultations to lawyers and runs an online group for solo practitioners dealing with professional stress. He also maintains a half-time private practice in Newton and Boston.

STEVEN E. GURDIN is a partner in the Boston law firm of Fitch Law Partners LLP (formerly known as Sally & Fitch LLP). His practice is concentrated in the areas of family law and probate litigation. He is a graduate of Emory University and Albany Law School of Union University, and a member of the Massachusetts and Boston Bar Associations. He is former cochair of both the family law section and the fiduciary litigation committee of the Boston Bar Association. Mr. Gurdin is a member of the New England advisory board of the American Academy of Certified Financial Litigators. He contributes regularly to MCLE programs and has served on the family law curriculum advisory committee. He was the chair of MCLE's Divorce Law BasicsPlus! seminar from 2004–2016 and the moderator of MCLE's Family Court Judicial Forum from 2003– 2016. He also coauthored “An Overview of Alimony” in Effectively Handling the Alimony Case (MCLE, Inc. 2000) and participated in authoring the chapter on discovery in the Massachusetts Divorce Law Practice Manual (MCLE, Inc. 2000 & Supp. 2003, 2005). Mr. Gurdin also regularly volunteers at the annual MCLE Family Law Trial Advocacy Workshop. In MCLE’s 2008– 2009 annual report, he was among ten persons recognized as a “top volunteering individual” out of the 2,431 individuals who volunteered their time, expertise, and enthusiasm as MCLE advisors, faculty, authors, and editors. Mr. Gurdin has repeatedly been named a “Top 100 Massachu- setts Super Lawyer” and a “Top 100 New England Super Lawyer.” He has also been named a “New England Super Lawyer” each year since 2008 and a “Massachusetts Rising Star” in 2005, 2006, and 2007 in Massachusetts Super Lawyers, published by the Thomson-Reuters rating service in Boston magazine. He is ranked at the highest level of legal ability, “AV,” in the bench- mark Martindale-Hubbell Law Directory. Mr. Gurdin is also listed in the 2013–2017 editions of Best Lawyers in America, a highly esteemed national peer review guide of attorneys. He is rated a “10,” or “superb,” by AVVO—the highest score.

MELISSA LANGA is of Bove & Langa, PC, in Boston. Her practice includes guiding individuals, families, businesses, and charitable organizations in designing and implementing customized tax-efficient structures to meet their estate planning, asset protection planning, business, and charitable needs. She is a fellow of the American College of Trust and Estate Counsel, cofounder and cochair of the Boston chapter of the Society of Trust and Estate Practitioners, cochair of the American Bar Association asset protection planning committee, and a member of the Interna- tional Tax Planning Association and the Massachusetts Bar Association. Ms. Langa is a graduate of Boston University School of Law, the American University Washington College of Law, and Rutgers University.

vii HEATHER L. LAVIGNE is assistant bar counsel at the Massachusetts Board of Bar Overseers. Prior to this, she was a hearing officer at the Massachusetts Department of Public Utilities; before that, she was an attorney at the Boston-based law firm of Choate Hall & Stewart LLP. Ms. LaVigne is a 2003 graduate of Clark University and a 2006 graduate of Boston College Law School.

SUSAN LETTERMAN WHITE is a practice advisor at Massachusetts LCL/LOMAP, where she works with lawyers and law firms to improve leadership and management, organizational and team performance, and marketing and business development. She is also an adjunct professor at Northeastern University, where she teaches leadership, strategic change, and communication skills. Before joining LOMAP, she led Letterman White Consulting as its founder and managing partner for ten years; before that, she practiced employment law for more than twenty years and was the managing partner of a law firm. She received a master’s degree in organization development with academic distinction from American University, a J.D. from Loyola Law School, and a B.A. in philosophy from Brandeis University. Ms. Letterman White has designed and facilitated training and coaching programs for law firms, consulting firms, government agencies, uni- versities, and chemical and pharmaceutical companies. She has received advance group facilita- tion training from NTL Institute and coaching training from Harvard Medical School, and is certified in the MBTI, Korn Ferry Leadership Architect, and Korn Ferry Voice 360ᴼ assessments. She uses her expertise to identify strategy problems and solutions and to facilitate group discussions among organizational stakeholders that have the power to cause a strategic change initiative to succeed or fail. Ms. Letterman White regularly publishes and speaks nationally and inter- nationally on topics of strategy, change, and leadership. She is the chair of the Massachusetts Bar law practice management section and past chair of ABA Women Rainmakers.

PATRICIA A. LEVESH is the managing attorney of the family law unit at Greater Boston Legal Services in Boston. She is a 1985 graduate of New England School of Law and has spent her entire legal career representing low-income, disabled, and elderly individuals in a variety of substantive areas as an attorney for nonprofit legal services organizations. Her practice is concentrated on representing victims of domestic violence in custody and visitation disputes in Probate and Family Court and before the legislature. Ms. Levesh also provides training and education to legal and lay professionals in the areas of domestic violence and domestic relations. She has participated as a panelist and author in continuing legal education programs and publications for MCLE.

JACK MARSHALL is the president and founder of ProEthics, Ltd. in Alexandria, Virginia, and the primary writer and editor of the ethics commentary blog Ethics Alarms (www.ethicsalarms.com). He has taken the experience gleaned from a diverse career in law, public policy, academia, and theater and applied it to the field of legal, business, and organizational ethics. Over eighteen years he has developed more than 180 programs and seminars for bar associations, law firms, Fortune 500 companies, non-profit organizations, and government agencies. He has worked to develop rules of professional responsibility for attorneys in emerging African democracies through the International Bar Association and for the new judiciary of the Republic of Mongolia through USAID. With Pulitzer

viii Prize-winning historian Edward Larson, he compiled and edited The Essential Words and Writing of Clarence Darrow (Random House, 2007). Mr. Marshall also served on the adjunct faculty of the Washington College of Law at the American University in Washington, DC. He is a graduate of Harvard College and Georgetown University Law Center, and is licensed to practice in Massachu- setts and the District of Columbia. Like many who are interested in the nature of good, evil, justice, and chaos, Mr. Marshall is a lifetime fan of the Boston Red Sox.

DONNA JALBERT PATALANO is a candidate for Middlesex District Attorney. She is a member of the Massachusetts Bar Association’s criminal justice section council and the SJC’s committee on grand jury practice. She served most recently as chief of professional integrity and ethics for Suffolk County District Attorney Daniel F. Conley. In that capacity, Ms. Patalano co- chaired the office’s Conviction Integrity Program, which handles post-conviction claims of actual innocence. She served as chief of the office’s training program and appeared regularly in the SJC, Appeals Court, and Suffolk Superior Court. From 2013–17, Ms. Patalano served on the Massachusetts Board of Bar Overseers; she was chair from 2015–17. For twelve years, she served as a member of the Town of Winchester’s zoning board of appeals and recently served as chair of the Town Counsel search advisory committee. Prior to rejoining the Suffolk County Dis- trict Attorney’s Office in 2011, Ms. Patalano served as appellate and post-judgment counsel for private clients as well as for the CPCS post-conviction appellate panel and the First Circuit Court of Appeals Criminal Justice Act panel. After graduating from Boston College Law School, she served as a law clerk to the Honorable Elspeth Cypher for the Appeals Court.

KATHRYN D. STONE is an associate at Prince Lobel Tye LLP in Boston. She maintains a diverse practice representing clients on intellectual property and media matters, as well as various areas including advertising, marketing, and sponsorship issues, digital and social media agreements, sports and entertainment law, FOIA requests, and reporter’s privilege. Before joining Prince Lobel Tye, Ms. Stone worked at Nelson Mullins Riley & Scarborough LLP as well as Ce- trulo Capone LLP, where, in addition to her privacy and media law practice, she represented For- tune 500 companies in business litigation, product liability disputes, and general civil litigation defense. Ms. Stone is a graduate of Suffolk University Law School and Boston College.

SARA ANN K. SUPPLE is vice president agency counsel at Chicago/Commonwealth Land Title Insurance Company in Boston. Previously, Ms. Supple was Massachusetts associate state counsel and senior underwriter at First American Title Insurance Company and was a partner and ran the conveyancing department at a Brookline law firm. She has extensive knowledge of real estate conveyancing and title insurance underwriting and claims handling. Ms. Supple received her BS/BA in accounting from Boston University and her JD from Suffolk University Law School. She is an active member of REBA, the Boston Bar Association, and the Massachusetts Bar Association, and sits on the board of the New England Institutional Review Board.

ix JESSICA P. THRALL is currently an attorney in the Federal Public Defender Office for the Dis- trict of Massachusetts, New Hampshire, and Rhode Island. From 2007 to 2014, she worked as a staff attorney for the Committee for Public Counsel Services in Salem, and between 1999 and 2007, she was a compliance officer and investigator at the Massachusetts Commission Against Discrimination. Ms. Thrall graduated from the University of Massachusetts Amherst and New England School of Law.

PETER WITTENBORG has served as executive director of the Real Estate Bar Association (REBA) in Boston for more than ten years. He is also the founder of REBA’s successful dispute resolution affiliate, REBA Dispute Resolution. Prior to joining the REBA staff, he was the East- ern Massachusetts branch manager for CATIC. During his years in the practice of law, Mr. Wit- tenborg was a partner in the Boston law firm of Kaye, Fialkow, Richmond & Rothstein and, later, a partner in the Boston office of Stroock & Stroock & Lavan LLP, headquartered in New York City. He has a B.A. from Lawrence University and a J.D. from Vanderbilt University School of Law. He began his legal career as law clerk to the Honorable William I. Randall, chief justice of the Land Court.

x Table of Contents

Section 1: Professionalism and Being a Massachusetts Lawyer ...... 1 Hon. Dennis J. Curran

 Quote of the Day ...... 3  Words of Wisdom ...... 5  Discovery Abuse ...... 9  Regrettable Things Lawyers Say ...... 23  Regrettable Pleadings ...... 51  Ever-Shifting Pleadings ...... 69  Lawyer Overreaching ...... 81  Chutzpah ...... 87  Unusual Cases...... 101  Interesting Cases ...... 119  And Remember ...... 139  So, Which Type of Lawyer Do You Want to Be? ...... 141  An Introduction to the Massachusetts Court System ...... 143  Abraham Lincoln: A Model for Today’s Trial Lawyers ...... 145  Annual Report on the State of the Massachusetts Court System FY2016 ...... 153  Annual State of the Judiciary Address, October 26, 2017 Chief Justice Ralph D. Gants’ Remarks ...... 217 Chief Justice Paula M. Carey’s Remarks ...... 231 Court Administrator Jonathan Williams’ Remarks ...... 237  Chapter 254 of the Acts of 2014 ...... 243  Standing Order 1-15 ...... 245

Section 2: Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules ...... 251 Jack Marshall

 Synopsis of Hypotheticals, Issues and Rules...... 251 Hypothetical One: “Goony Universe” ...... 251 Hypothetical Two: “Hedda Cabbage” ...... 253 Hypothetical Three: “I Love Luca” ...... 255 Hypothetical Four: “Dinner of Doom” ...... 257 Hypothetical Five: “Techno-Hell” ...... 259

xi Section 3: Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts ...... 261 Scott D. Burke Materials provided by James S. Bolan, Esq., Brecher, Wyner, Simons, Fox & Bolan LLP, Newton—  Prospective Client ...... 263  Documentation...... 264  Telephone Procedures ...... 265  Confidentiality ...... 266  Conflict Checks ...... 267 Conflicts Check Form ...... 268 Boston Bar Association Ethics Committee Opinion 2004-1 ...... 269  Outline of Massachusetts Legal Malpractice Law ...... 275  24 Top Ten Rules of the Road ...... 276  I Never “Met A Data” I Didn’t Like...... 279  Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition) ...... 286  Ethics, Risk and Malpractice Avoidance (Excerpts) ...... 288 Current Events Issues in Ethics and Professional Responsibility ...... 288 The Bounds of Zealous Advocacy ...... 297 Managing a Law Practice ...... 300 Creating the Attorney/Client Relationship and Communicating with Clients ...... 303 Conflict Management ...... 307 Maintaining Files ...... 307 Financial Management ...... 308 Billing and Collecting ...... 310  Loss Prevention/Malpractice Prevention/Bar Complaint—Review, Response, and Audit (Excerpts) ...... 316 Audit Procedures ...... 316 Substantive Issues and Approaches ...... 319 Lawyer Support Systems/Ancillary Matters ...... 319 Taking Steps to Prevent Malpractice and BBO Claims ...... 321  You Mail, I Mail, We All Send Email ...... 325  “In-House” and “Out-House” ...... 328  Fee Agreements and Related Administrative Documents ...... 331 Client’s Fee Agreement (Litigation) ...... 332 Records Management Policy ...... 336

xii Sample Agreements and Documents from LOMAP: Client’s Fee Agreement (Litigation) ...... 337 Client’s Fee Agreement (Transactional Engagement) ...... 341 Client’s Fee Agreement (Engagement with Possible Litigation to Follow) ...... 345 Contingent Fee Agreement, Form A ...... 349 Contingent Fee Agreement, Form B ...... 351 Flat Fee Agreement ...... 353 Non-Engagement Letter ...... 355 Disengagement Letter (Closing Letter) ...... 356 Fee Agreement—Document Retention/Destruction at the End of the Representation Under 1.15[f] and 1.16[d] and [e] ...... 357 Fee Agreement—Special Provision for Internet/Cloud Services ...... 358

Materials provided by Christa A. Arcos, Esq. of Stoneham—  Multiple Party Representation and the New Conflict Rules: What You Need to Know ...... 359  Revisions to the Rules of Professional Conduct: What You Need to Know ...... 360  Sample Potential Conflict Disclosure Letter—Civil Litigation ...... 361  Sample Potential Conflict Disclosure Letter—Joint Estate Plan...... 365  CJE Opinion No. 2016-01 (Facebook: Using Social Networking Site) ...... 368  CJE Opinion No. 2016-08 (LinkedIn: Using Social Networking Site) ...... 373  CJE Opinion No. 2016-09 (Twitter: Using Social Networking Site) ...... 375  What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents ...... 380  Wearing Two Hats: Dual Practices and Ancillary Businesses ...... 383  Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012) ...... 388  Getting Ahead in the Cloud ...... 401  MBA Ethics Opinion 12-03 (Using Cloud Storage—Google Docs) ...... 406  Revised Massachusetts Rules of Professional Conduct ...... 410 SJC Announcement of Revised Rules ...... 411 Report of the Standing Advisory Committee ...... 413

Materials provided by Scott D. Burke, Esq., Morrison Mahoney LLP, Boston—  MBA Ethics Opinion 2014-5 (“Friending” an Unrepresented Adversary) ...... 418  Sample Engagement Letter/Agreement ...... 420  Sample Non-Engagement Letter ...... 427

xiii Section 4: Overview of the Bar Discipline System & Common Ethical Issues ...... 429 Heather L. LaVigne

 Overview of the Bar Discipline System & Common Ethical Issues ...... 431  Presentation Slides ...... 439

Section 5: Why Every Lawyer Should Be Interested in Cultural Competency ...... 447 Articles by Ronald E. Wheeler Jr., Fineman & Pappas Law Libraries, Boston University School of Law—  Helping Courts Address Implicit Bias ...... 449  Michael Brown, Eric Garner, and Law Librarianship ...... 473  Soft Skills ...... 483  We All Do It: Unconscious Behavior, Bias, and Diversity ...... 489

Section 6: General and Affinity Bar Associations and Mentoring Programs ...... 497 Gabriel Cheong, Manmeet K. Desai, & Peter Wittenborg

 Welcome Letter (November 14, 2011) from Chief Justice Roderick L. Ireland ...... 497  Mentoring Programs for Newly Admitted Lawyers in Massachusetts ...... 498  Starting Out Solo History, Benefits, and Membership Information ...... 501

Section 7: The Importance and Rewards of Pro Bono Work ...... 503  Presentation Outline ...... 503  Volunteer Lawyers Project of the Boston Bar Association ...... 505

Section 8: Law Office Management ...... 507 Susan Letterman White

 Presentation Slides ...... 509

Section 9: Lawyers Concerned for Lawyers...... 519 Dr. Jeffrey Fortgang

 How Lawyers Concerned for Lawyers Can Help with Your Concerns About a Fellow Attorney ...... 521  Lawyers Concerned for Lawyers Contact Information ...... 522

xiv Program Agenda

Monday, November 13, 2017

8:00 a.m. – 9:00 a.m. Check in (breakfast provided by MCLE)

9:00 a.m. – 9:05 a.m. Introductory Remarks

9:05 a.m. – 9:15 a.m. Practicing with Professionalism Video Montage

9:15 a.m. – 9:45 a.m. Professionalism and Being a Massachusetts Lawyer, with an Overview of the Massachusetts Court System Hon. Dennis J. Curran, Superior Court, Commonwealth of Massachusetts

9:45 a.m. – 10:45 a.m. Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules, Part I Jack Marshall, Esq., ProEthics, Ltd., Alexandria, VA

10:45 a.m. – 11:00 a.m. Refreshment Break

11:00 a.m. – 11:45 a.m. Massachusetts Rules of Professional Conduct, Part II

11:45 a.m. – 12:20 p.m. Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts Scott D. Burke, Esq., Morrison Mahoney LLP, Boston

12:20 p.m. – 1:40 p.m. Lunch Break (box lunch provided by MCLE)

Grab a lunch and join a discussion group in one of three classrooms for a Q&A session and the opportunity to meet with experienced practitioners from across several key practice areas

Business Law & Real Estate Kendra L. Berardi, Esq., Robinson + Cole LLP, Boston Kathryn D. Stone, Esq., Prince Lobel Tye LLP, Boston Sara Ann K. Supple, Esq., Chicago and Commonwealth Title Insurance Companies, Boston

Family Law & Estate Planning Gabriel Cheong, Esq., Infinity Law Group LLC, Boston Steven E. Gurdin, Esq., Fitch Law Partners LLP, Boston Melissa Langa, Esq., Bove & Langa, PC, Boston Patricia A. Levesh, Esq., Greater Boston Legal Services, Boston

Litigation (Civil & Criminal) Donna Jalbert Patalano, Esq., Suffolk District Attorney's Office, Commonwealth of Massachusetts Jessica P. Thrall, Esq., Federal Public Defender Office, Boston

1:40 p.m. – 1:50 p.m. In the Court’s Own Words (SJC video)

1:50 p.m. – 2:25 p.m. Overview of the Bar Discipline System & Common Ethical Issues Heather L. LaVigne, Esq., Board of Bar Overseers, Common- wealth of Massachusetts

2:25 p.m. – 2:50 p.m. Why Every Lawyer Should Be Interested in Cultural Competency

2:50 p.m. – 3:10 p.m. General and Affinity Bar Associations and Mentoring Programs Gabriel Cheong, Esq., Infinity Law Group LLC, Quincy (Starting Out Solo) Manmeet K. Desai, Esq., Charles River Associates, Boston (South Asian Bar Association of Greater Boston) Peter Wittenborg, Esq., Real Estate Bar Association for Massachu- setts, Boston

3:10 p.m. – 3:25 p.m. Refreshment Break

3:25 p.m. – 3:45 p.m. The Importance and Rewards of Pro Bono Work

3:45 p.m. – 4:30 pm. Law Office Management Susan Letterman White, JD, MS, Massachusetts Law Office Management Assistance Program (LOMAP), Boston

4:30 p.m. – 4:50 p.m. Lawyers Concerned for Lawyers Jeffrey Fortgang, Ph.D., Lawyers Concerned for Lawyers, Inc., Boston

4:50 p.m. – 5:00 p.m. Closing Remarks/Completion of Program Evaluation

xvi SECTION 1 Professionalism and Being a Massachusetts Lawyer

A Quote of the Day ...... 3

B Words of Wisdom ...... 5

C Discovery Abuse ...... 9

D Regrettable Things Lawyers Say ...... 23

E Regrettable Pleadings...... 51

F Ever-Shifting Pleadings ...... 69

G Lawyer Overreaching ...... 81

H Chutzpah ...... 87

I Unusual Cases ...... 101

J Interesting Cases ...... 119

K And Remember ...... 139

L So, Which Type of Lawyer Do You Want to Be? ...... 141

M An Introduction to the Massachusetts Court System ...... 143

N Abraham Lincoln: A Model for Today’s Trial Lawyers ...... 145

Additional Materials

Annual Report on the State of the Massachusetts Court System FY2016 ...... 153

Annual State of the Judiciary Address, October 26, 2017

Chief Justice Ralph D. Gants’ Remarks ...... 217

Chief Justice Paula M. Carey’s Remarks ...... 231

Court Administrator Jonathan Williams’ Remarks ...... 237

Chapter 254 of the Acts of 2014 ...... 243

Standing Order 1-15 ...... 245

2 Section 1A

Quote of the Day

“It is difficult to live a life of integrity, to be civil, decorous, professional and courteous with so many forces pulling in other directions. But by discussing these issues in the law schools and in the Bar, with the strong hand of the courts setting the moral tone, and by making constant efforts to remind ourselves and each other that every lawyer still is an officer of the court who has been given the privilege—not the right—to practice this noble profession, we may yet stem the tide. Let us hope so. As Chief justice Burger said a quarter of a century ago:

Without civility no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process if not the beginning of blows and combat.”

—Honorable Paul L. Friedman, United States District Court for the District of Columbia. March 13, 1998 before the American Bar Association.

4 Section 1B

Words of Wisdom

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

– Abraham Lincoln (1850) Notes for a Law Lecture, in 2 ROY P. BASLER, COLLECTED WORKS OF ABRAHAM LINCOLN, 81 (Rutgers Univ. Press 1953).

5 6

8 Section 1C

Discovery Abuse

“TO BE [CIVIL], OR NOT TO BE, THAT IS THE QUESTION.”

(Paraphrasing Hamlet, Act III, Scene I)

9 10 11 12 13 14 15 16 17 18 19 20 21

22 Section 1D

Regrettable Things Lawyers Say

Quote of the Day

“Good judgment comes from experience. And experience comes from bad judgment.”

23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49

50 Section 1E

Regrettable Pleadings

51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67

68 Section 1F

Ever-Shifting Pleadings

69 70 71 72 73 74 75 76 77 78 79

80 Section 1G

Lawyer Overreaching

81 82 83 84 85

86 Section 1H

Chutzpah

87 88 89 90 91 92 93 94 95 96 97 98 99

100 Section 1I

Unusual Cases

101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117

118 Section 1J

Interesting Cases

119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137

138 Section 1K

And Remember . . .

139

140 Section 1L

So, Which Type of Lawyer Do You Want to Be?

(Check one)

  Texas Deposition Lawyer Atticus Finch

141

142 Section 1M

An Introduction to the Massachusetts Court System

How many statutory judgeship positions currently exist under the Massachusetts General Laws?

• Supreme Judicial Court – 7 • Land Court – 7 • Appeals Court – 25 • Juvenile Court – 41 • Superior Court – 82 • Probate and Family Court – 51 • Housing Court – 10 • Boston Municipal Court – 30 • District Court – 158

Committees subject SUPREME to SJC oversight JUDICIAL COURT

APPEALS COURT

TRIAL COURT

Office of Office of Jury Commissioner Commissioner of Probate

Boston District Housing Juvenile Land Probate and Superior Municipal Court Court Court Court Family Court Court Court Dep’t Dep’t Dep’t Dep’t Dep’t Dep’t Dep’t

143

144 Section 1N

Abraham Lincoln: A Model for Today’s Trial Lawyers

145

146

147

148

149

150

151

152 Public Information Office ANNUAL REPORT ON THE STATE OF THE John Adams Courthouse, Suite 1100 One Pemberton Square MASSACHUSETTS COURT SYSTEM Boston, MA 02108-1724 Phone: (617)557-1114

FY2016 http://www.mass.gov/courts

153 Courthouses and Year of Construction

Front cover:

Wrentham District Court Barnstable Superior Court Norfolk Superior Court (Dedham) Springfield Juvenile & (1955) (1832) (1831) Housing Courts Berkshire Probate & Family Dorchester Division/Boston (1874) Brockton Trial Court (1999) Court (Pittsfield) (1876) Municipal Court (1925)

Back cover:

Marlborough District Court (1969) Newton District Court (1930) Peabody District Court (1978) Southern Berkshire District Court (1900) Dudley District Court (1972) Framingham District Court (1952) Worcester Trial Court (2007) Essex Superior Court (Lawrence) (1859)

Annual Report on the State of the Massachusetts Court System 154 155 Annual Report on the State of the Massachusetts Court System 156 The Massachusetts Court System As of June 30, 2016

Supreme Judicial Court Chief Justice Ralph D. Gants

Appeals Court Scott L. Kafker

Trial Court Chief Justice Paula M. Carey Court Administrator Harry Spence

Boston Municipal Court Chief Justice Roberto Ronquillo Jr.

District Court Chief Justice Paul C. Dawley

Housing Court Chief Justice Timothy F. Sullivan

Juvenile Court Chief Justice Amy L. Nechtem

Land Court Chief Justice Judith C. Cutler

Probate & Family Court Chief Justice Angela M. Ordoñez

Superior Court Chief Justice Judith Fabricant

Massachusetts Probation Service Edward J. Dolan, Commissioner

Office of Jury Commissioner Pamela J. Wood, Esq., Commissioner

Annual Report on the State of the Massachusetts Court System 157 The Massachusetts Court System

Supreme Judicial Court 1 Chief Justice 6 Associate Justices

Massachusetts Appeals Court 1 Chief Justice 24 Associate Justices

Executive Office of the Trial Court Massachusetts Office of Jury Probation Commissioner Chief Justice Court Service Administrator

Boston Municipal Housing Court Land Court Superior Court Court Department Department Department Department 1 Chief Justice 1 Chief Justice 1 Chief Justice 1 Chief Justice 9 Associate Justices 6 Associate Justices 81 Associate Justices 29 Associate Justices 5 Divisions 14 Counties 8 Divisions

District Court Juvenile Court Probate & Family Department Department Court Department 1 Chief Justice 1 Chief Justice 1 Chief Justice 157 Associate Justices 40 Associate Justices 50 Associate Justices 62 Divisions 11 Divisions 14 Divisions

The number of justices for all courts is the total authorized by law.

Annual Report on the State of the Massachusetts Court System 158 Annual Report on the State of the Massachusetts Court System FY2016

Contents

Supreme Judicial Court 1

Appeals Court 6

Trial Court 10 Recommendations & Plans for Fiscal Year 2017 11 Trial Court Fiscal Year 2016 Highlights 11 Broaden Access to Justice 11 Enhance Public Safety 13 Provide a Safe, Sustainable Infrastructure 16 Improve Operational Effectiveness 17 Engage Local Communities 19 Trial Court by the Numbers 21 Departmental Highlights 23 Excellence Awards 32 Judges & Officials 33

Statistical Appendix Fiscal Data A‐3 Arraignments by Offense Type A‐4 Case Filings by Type A‐6 Case Filings by Department A‐8 Massachusetts Probation Service Caseload A‐10 Case Flow Metrics A‐11 Clearance Rate A‐13 Time to Disposition A‐14 Pending Cases Beyond Time Standards A‐15 Trial Date Certainty A‐16

Annual Report on the State of the Massachusetts Court System 159 Massachusetts Supreme Judicial Court Justices and Officials As of June 30, 2016

Chief Justice Ralph D. Gants

Justices Francis X. Spina Robert J. Cordy Margot G. Botsford Barbara A. Lenk Fernande R.V. Duffly Geraldine S. Hines

Acting Executive Director Carol R. Lev

Clerk for the Commonwealth Francis V. Kenneally

Clerk for The County of Suffolk Maura S. Doyle

Annual Report on the State of the Massachusetts Court System 160 Supreme Judicial Court

Supreme Judicial Court mass.gov/courts

he Supreme Judicial Court (SJC), originally called the Superior Court of Judicature, was established in 1692 and is the oldest appellate Tcourt in continuous existence in the Western Hemisphere. It serves as the leader of the Massachusetts court system, holding final appellate authority regarding the decisions of all lower courts and exercising general superintendence over the administration of the lower courts.

The full Court hears appeals on a broad range of Supreme Judicial Court: criminal and civil cases from September through Fiscal Year 2016 Highlights May. Single justice sessions are held each week throughout the year for certain motions, bail Annual State of the Judiciary Address to reviews, bar discipline proceedings, petitions for the Legal Community admission to the bar, and a variety of other Chief Justice Ralph D. Gants delivered his second statutory proceedings. The full bench renders annual address to the legal community at the approximately 200 written decisions each year; the Massachusetts Bar Association’s Bench‐Bar single justices decide a total of approximately 600 Symposium in October 2015. Chief Justice Gants cases annually. spoke about the collaborative request he made with the Governor, House Speaker, and Senate The SJC also has oversight responsibility in President to the Council of State Governments to varying degrees, according to statutes, with several examine the criminal justice system as part of its affiliated agencies of the judicial branch, including Justice Reinvestment Initiative and to provide data the Board of Bar Examiners, Board of Bar and analysis to assist in shaping criminal justice Overseers, Clientsʹ Security Board, Massachusetts policy and reduce the rate of recidivism. Legal Assistance Corp., and Massachusetts Mental Health Legal Advisorsʹ Committee. Regarding civil courts, Chief Justice Gants discussed the progress made developing a menu of Supreme Judicial Court for Suffolk litigation options appropriate to each case, and County (Single Justice Session) making civil cases more cost‐effective, with the amount of discovery appropriate to the amount at The SJC for Suffolk County is known as the single issue in the case. justice session of the Supreme Judicial Court. An associate justice essentially acts as a trial judge, as Chief Justice Gants also addressed access to justice was the function of the first justices, or as an initiatives focused on the large number of self‐ administrator of the Court’s supervisory power represented litigants who need assistance under G.L. c. 211, § 3. The county court, as it is often navigating the court system, as well as the referred to, has original, concurrent, interlocutory, implementation of attorney voir dire in the and appellate jurisdiction on a statewide basis. In Superior Court. Chief Justice Gants delivered a addition to the single justice caseload, the justice third State of the Judiciary Address in October, sits on bar docket matters. 2016.

Annual Report on the State of the Massachusetts Court System 1 161 Supreme Judicial Court

Court Management Advisory Board Court Management Advisory Board Following the recommendation of the Visiting Members Committee on Management in the Courts (the Monan Committee), the Massachusetts Legislature in 2003 created the Court Management Advisory Lisa C. Goodheart, Chair Board (CMAB) to advise and assist the Justices of Partner, Sugarman, Rogers, Barshak & Cohen, P.C. the Supreme Judicial Court, the Chief Justice of the Trial Court, and the Court Administrator on Randy Chapman, Esq. matters pertaining to judicial administration and Chapman and Chapman, PC management and all matters of judicial reform. Kate Donovan In FY16, the CMAB saw a leadership transition as Manpower Business Solutions Chair Glenn Mangurian stepped down as Chair and Attorney Lisa Goodheart took over. The Hon. Gail Garinger (ret.) CMAB met regularly to support the Trial Court in Office of the Attorney General its pursuit of continuous quality improvement, strategic innovation, and service excellence. In Scott Harshbarger, Esq. particular, the CMAB followed the progress on the Casner & Edwards, LLP four priorities identified in its 2014 report: SJC operational oversight of the Trial Court; talent Richard Johnston, ex officio development; knowledge management and data Office of the Attorney General decision analytics; and the court user experience. In addition, the CMAB chartered an outside review Allen B. Kachalia, MD, JD of the management and use of information Brigham and Womenʹs Hospital technology resources. Liam Lowney, ex officio Court Improvement Program Massachusetts Office for Victim Assistance

The Supreme Judicial Court’s Court Improvement Hon. James McHugh (ret.) Program (CIP) manages a federal grant awarded to Retired from the Massachusetts Appeals Court promote improved processing of child welfare cases in the courts. In FY16, funds continued to Donald Oppenheimer support work on an interdisciplinary guidebook John F. Kennedy School of Government on confidentiality and information sharing for professionals working with children, youth and Denise Squillante, Esq. families. In addition, funds supported a research Denise Squillante PC grant to Boston University’s School of Social Work: “Designing Data Driven Directions for School Kenneth Turner Success of Children in Care,” a multiagency project Massachusetts Port Authority involving the Department of Elementary and Secondary Education, the Department of Children and Families and the courts.

The Child Welfare Data Analyst, funded by CIP of Trial Advocacy and numerous other specialized and working at the direction of the CIP Steering trainings for lawyers representing children and Committee, expanded data reporting initiatives to parents in child welfare cases. CIP also provided include permanency based timeliness measures, as funds to publish guides for parents (in English and well as specialized performance measures to Spanish) involved in Care and Protections and promote improved outcomes for children in state Children Requiring Assistance cases and revised custody. CIP funds supported many opportunities and distributed “The Answer Book,” a guide for for training, including a four‐day intensive trial youth in foster care. advocacy program taught by the National Institute

Annual Report on the State of the Massachusetts Court System 2 162 Supreme Judicial Court

Pro Bono Legal Services news media to include members of the media who are not employed by a news organization, but who The SJC’s Standing Committee on Pro Bono Legal are regularly engaged in the reporting and Services works to promote volunteer legal work to publishing of news or information about matters of help people of limited means who are in need of public interest. The rule requires all news media to legal representation, in accordance with SJC Rule register with the Public Information Office. By the 6:1, Voluntary Pro Bono Publico Service. In end of calendar year 2015, 146 news organizations recognition of outstanding commitment to and 88 news media individuals not employed by a providing volunteer legal services for the poor and news media organization had registered disadvantaged, the Standing Committee presented the 15th annual Adams Pro Bono Publico Awards Massachusetts Guide to Evidence in October 2015 to three Massachusetts attorneys: Elizabeth L. Ennen, John J. Regan, and Archer B. The Massachusetts Guide to Evidence organizes Battista; and a special student award to Shannon and states the law of evidence applied in the courts Johnson, 2015 Graduate, Boston College Law of the Commonwealth. Each year, the Executive School. During the awards ceremony, the Committee of the Supreme Judicial Court Committee also acknowledged those participating Advisory Committee on Massachusetts Evidence in the Courtʹs Pro Bono Honor Roll, a recognition Law monitors judicial decisions and other relevant program for those who have met the program statutory and rule changes concerning the law of criteria by providing significant pro bono legal evidence and prepares a new edition of the Guide services. The Pro Bono Committee also visited that incorporates significant new developments. Boston College Law School and the Massachusetts The eighth annual edition was released in February School of Law in FY16 as part of its ongoing 2016. The Committee also prepares an online commitment to pay regular visits to the supplement, which provides short summaries of Massachusetts law schools to learn about and important opinions of the Supreme Judicial Court promote the pro bono activities of the law students. and the Appeals Court relating to the law of evidence. Access to Justice Commission SJC Standing Advisory Committee on The Commissionʹs goal is to achieve equal justice Professionalism for all persons in the Commonwealth by providing leadership and vision to, and coordination with, The SJC Standing Advisory Committee on the many organizations and interested persons Professionalism is charged with overseeing the involved in providing and improving access to implementation of SJC Rule 3:16 on Practicing with justice for those unable to afford counsel. The Professionalism, which requires a mandatory Commission includes representatives from the course on professionalism for lawyers admitted to courts, the private bar, the legal services bar, the the Massachusetts bar on or after the effective date client community, law schools, business entities, of September 1, 2013. and social service providers, and is organized around committees that reflect an expansive access The Committeeʹs duties and responsibilities to justice agenda, including Delivery of Legal include: designating approved course providers; Services, Access to Lawyers, Administrative making recommendations to the Court regarding Justice, Non‐Lawyer Roles, Revenue Enhance‐ the fees to be charged for the course and any ment, Self‐Represented Litigants, and Social circumstances under which the fees may be Services. waived; evaluating the course providers; reporting to the Court on at least an annual basis on the SJC Rule 1:19 Governing Electronic implementation of the course and an assessment of Access to Courts whether the program is accomplishing its intended The Supreme Judicial Court approved amend‐ goals and outcomes; and overseeing the ments to Rule 1:19 governing cameras in the administration of all aspects of SJC Rule 3:16. courtroom, effective September 2012. Among the changes, the amended rule allows registered news The Massachusetts Bar Association, the Boston Bar media with permission of the judge to use Association, Massachusetts Continuing Legal electronic devices in the courtroom. It defines Education, and the Greater Lynn Bar Association

Annual Report on the State of the Massachusetts Court System 3 163 Supreme Judicial Court were selected by the Standing Committee as comments from members of the bench and bar. approved providers of the courses. During FY16, Following their internal review, the Justices in the approved providers conducted 21 courses at October 2015 adopted a new Massachusetts Code sites in Boston and across the state. of Judicial Conduct, effective January 1, 2016. Committee members spent the last few months of Judicial Evaluation 2015 conducting training sessions on provisions of the new Code for members of each trial court The judicial evaluation program has facilitated the department. The Justices appointed four members collection and processing of judicial evaluations of this Committee to serve on a new Committee on from attorneys, court employees, and jurors since Judicial Ethics, effective January 1, 2016. its introduction in 2001. The program provides narrative comments and aggregated statistical Community Outreach assessments to judges concerning their professional, on‐bench performance in an effort to In keeping with John Adams’ passion for justice, enhance the performance of individual judges and community, and learning, the Supreme Judicial the judiciary as a whole. In FY15, the program Court uses the John Adams Courthouse to provide initiated a revised evaluation questionnaire and free educational opportunities for students, commenced a three‐year pilot program to test the educators, and the public. In FY16, these new version. opportunities included: hosting a traveling exhibit in collaboration with the American Bar Association Three rounds of evaluation were conducted during and Library of Congress ʺMagna Carta: Enduring this fiscal year. In the first round, 47 judges in the Legacy 1215‐2015;ʺ student group visits to the District, Housing, Juvenile, and Probate and courthouse to attend oral arguments, meet with a Family Courts in Middlesex County were justice, or watch a dramatic performance of an evaluated, yielding 4,362 attorney evaluations, 930 historical event; teacher training sessions; and the employee evaluations and 840 juror evaluations. Court’s annual celebrations of Student Government Day and Law Day. In the second round, 34 Superior Court judges in Suffolk and Middlesex Counties were evaluated, The Supreme Judicial Court also entered its yielding 2,654 attorney evaluations, 556 employee eleventh year of successful partnership with evaluations and 258 juror evaluations. Theatre Espresso to perform educational dramas for school children at the John Adams Courthouse. In the third round, 41 judges in the District, The Judiciary website continues to provide easy Juvenile, Housing, Superior, and Probate and access and updated information for litigants, Family Courts in Worcester County were lawyers, educators, and the general public. evaluated yielding 2,203 attorney evaluations, Webcasts of the Court’s oral arguments continue to 1,016 employee evaluations and 439 juror be available on the website through collaboration evaluations. with Suffolk University Law School.

Overall, in FY16, each of the 122 judges evaluated received, on average, feedback from 76 attorneys, 21 employees, and 13 jurors.

Committee to Study the Code of Judicial Conduct

This Committee completed its work and recommended a new Code of Judicial Conduct to the Justices. This Code was the culmination of more than three years of comprehensive study of the ABAʹs Model Code, other states’ codes, statutory and case law, ethics opinions, and legal scholarship by the Committee. After publishing its draft, the Committee reviewed extensive

Annual Report on the State of the Massachusetts Court System 4 164 Supreme Judicial Court

Judicial Youth Corps In FY16, the program was able to have 32 Boston and Worcester students participate in this rich Since 1991, the Supreme Judicial Court has educational experience. The SJC hopes to be able conducted the Judicial Youth Corps (JYC), a legal to make JYC available to Springfield students in education and internship program for high school FY17. students. With the volunteer assistance of judges, lawyers, court employees, bar associations, and other dedicated supporters, the 14‐week program teaches students about the rule of law and the role of the judicial branch. The program has two components: educational sessions in May and June, and summer internships in court offices in July and August. The Public Information Office administers the program, which is funded by foundations and grants.

Supreme Judicial Court Statistics FY2016 Caseload FY2015 FY2016

Direct Entries 83 107 Direct Appellate Review ‐ Applications Allowed 40 53 Direct Appellate Review ‐ Applications Considered 100 126 Further Appellate Review ‐ Applications Allowed 26 39 Further Appellate Review ‐ Applications Considered 697 847 Transferred by SJC on its Motion from Review of 44 30 Entire Appeals Court caseload Gross Entries 193 229 Dismissals 17 19 Net Entries 176 210

Dispositions FY2015 FY2016

Full Opinions 161 152 Rescripts 34 39 Total Opinions 195 191 Total Appeals Decided 201 196

Annual Report on the State of the Massachusetts Court System 5 165 Massachusetts Appeals Court

Massachusetts Appeals Court Justices and Officials As of June 30, 2016

Chief Justice Scott L. Kafker

Justices Peter W. Agnes Jr. Gary S. Katzmann Amy Lyn Blake Diana Maldonado Judd J. Carhart Gregory I. Massing Cynthia J. Cohen William J. Meade Elspeth B. Cypher James R. Milkey Francis R. Fecteau Peter J. Rubin Andrew R. Grainger Mary T. Sullivan Mark V. Green Joseph A. Trainor Sydney Hanlon Ariane D. Vuono R. Marc Kantrowitz Gabrielle R. Wolohojian

Court Administrator Gilbert P. Lima Jr.

Clerk Joseph F. Stanton

Annual Report on the State of the Massachusetts Court System 6 166 Massachusetts Appeals Court mass.gov/courts

he Appeals Court was established in 1972 to serve as the Commonwealth’s intermediate appellate court. It is a court of general T jurisdiction that hears criminal, civil, and administrative matters. All appeals from the Trial Court (with the exception of first‐degree murder cases) are thus initially entered in the Appeals Court. Similarly, the court receives all appeals from the Appellate Tax Board, the Industrial Accident Review Board, and the Employee Relations Board.

Although the Appeals Court is responsible for been argued or had been submitted to panels for deciding all such appeals, every year a small decision without argument. number are taken up by the Supreme Judicial Court for direct appellate review. During FY16, the Massachusetts Appeals Court: Supreme Judicial Court transferred 87 cases of Fiscal Year 2016 Highlights 1,740 appeals filed. The remaining cases must be decided or otherwise resolved (e.g., by settlement Appellate Caseload or dismissal) at the Appeals Court. The Appeals Court caseload for FY16 declined 7.5% from FY15 as 1,740 new appeals were entered. After a case is decided by the Appeals Court, the In FY15, for the first time, criminal entries parties may request further review by the Supreme outnumbered civil ones; this proved to be a single Judicial Court, but such relief is granted in very year aberration as civil cases again predominated few cases. The Appeals Court is thus the court of in FY16. Despite being five justices short of a full last resort for the overwhelming majority of court for most of the sitting year, the court still Massachusetts litigants seeking appellate relief. decided 1,337 cases, which was 144 more cases than the total of net entries. Net entries is the total By statute, the Appeals Court has a chief justice number of cases entered after dismissals, and 24 associate justices. The justices of the court consolidations and transfers to the Supreme sit in panels of three, with the composition of Judicial Court are subtracted. This is the number of judicial panels changing each month. cases that the court actually has to decide. This was achieved through extra sittings and other In addition to its panel jurisdiction, the Appeals improvements and efficiencies. Court also runs a continuous single justice session, with a separate docket. The single justice may review interlocutory orders and orders for Technology Enhancement injunctive relief issued by certain Trial Court The Appeals Court launched an electronic filing departments, as well as requests for review of pilot program in FY16. Attorneys in civil cases are summary process appeal bonds, certain attorneyʹs now able to pay the docket fee and enter civil fee awards, motions for stays of civil proceedings or criminal sentences pending appeal, and motions appeals through e‐filing. As the appeal progresses, to review impoundment orders. During FY16, 549 counsel can e‐file motions, briefs, and record cases were entered on the single justice docket. appendix volumes in digital form only, with no paper original or duplicate required, thus saving The Appeals Court again met the appellate court parties the expense of filing multiple paper copies guideline for the scheduling of cases and by June of briefs and appendices. The program will expand 2016, all cases fully briefed by February 1st had in FY17 to include self‐represented litigants in civil

Annual Report on the State of the Massachusetts Court System 7 167 Massachusetts Appeals Court cases and all types of filings in criminal cases. The Second, the Appeals Court and the Essex Probate expansion of electronic filing to criminal cases will and Family Court engaged in a pilot program for benefit the Offices of the Attorney General, District the transmission of electronic notices between the courts, eliminating paper and postage costs. This Attorneys, and the Committee for Public Counsel latter pilot is expanding to include several Superior Services, by eliminating their paper reproduction Court divisions in FY17. and postage costs for filings in the Appeals Court. Community Outreach Internal Initiatives The court continued to sit in locations behond the In FY16 the Court implemented a number of John Adams courthouse in FY16. Panels traveled to measures designed to enhance case management law schools throughout the state, a local and the timely decision of appeals. Statistical courthouse and a college. At each of those locations analysis of various aspects of case management the justices heard a full oral argument list and formed the basis of a reallocation of resources and reserved time after the completion of oral revision of procedures which improved the timely argument to respond to questions by attending processing of appeals. These efforts will continue students. in the coming year.

Early Identification of Jurisdictional Defects The Clerkʹs Office now screens incoming appeals for jurisdictional and procedural defects; cases are referred for action, including correction of the defect or dismissal of the appeal, at this initial stage. Previously, the identification of such issues awaited the full briefing of the case and review by a panel of the court, which forced parties to undertake unnecessary and expensive briefing.

Pro Bono Assistance Program for Self‐ Represented Litigants During FY16, an appellate pro bono pilot program commenced as a result of collaboration between the Supreme Judicial Courtʹs Access to Justice Commission, the Appeals Court, the Volunteer Lawyers Project, other legal service entities, and multiple law firms. Volunteer pro bono attorneys meet weekly with qualified self‐represented, low‐ income individuals in Appeals Court space and provide legal consultation concerning appellate issues and referrals for possible representation in civil appeals.

Electronic Transmission Pilots with the Trial Court The Appeals Court and Trial Court launched two pilot programs to utilize existing technology to make transmissions between the courts more efficient. First, the Appeals Court and the Springfield division of the District Court launched a pilot program for the electronic transmission of all transcript volumes and appeals in criminal cases, eliminating the need for paper and shipping.

Annual Report on the State of the Massachusetts Court System 8 168 Massachusetts Appeals Court

Appeals Court Statistics FY2016 Sources/Types of Appeals Civil Criminal Total

Superior Court 487 386 873 BMC/District Court 74 387 461 Probate & Family Court 138 0 138 Juvenile Court 82 27 109 Land Court 62 0 62 Housing Court 43 1 44 Appeals Court Single Justice 5 0 5 Industrial Accident Review Board 25 0 25 Appellate Tax Board 20 0 20 Employment Relations Board 3 0 3 SJC Transfer 0 0 0 Total Fiscal Year 2016 939 801 1,740 Total Fiscal Year 2015 918 962 1,880

Dispositions Total

Total Panel Entries 1,740 Transferred to Supreme Judicial Court 87 Dismissed/settled/withdrawn/consolidated 460 Net Annual Entries 1,193

Civil Criminal Total

Total Decisions 609 728 1,337

Decision of lower court affirmed 459 581 1,040 Decision of lower court reversed 87 99 186 Other result reached 63 48 111

Published Opinions 115 87 202 Summary Dispositions 494 641 1,135

Annual Report on the State of the Massachusetts Court System 9 169 Massachusetts Trial Court mass.gov/courts

he Massachusetts Trial Court continued to strive toward its vision of creating a 21st century justice system with the launch in June T2016 of its new Strategic Plan 2.0, One Mission: Justice with Dignity and Speed. The Trial Court also continued to implement the comprehensive initiatives outlined in the Trial Court’s first three‐year Strategic Plan at an aggressive pace, including the expansion of evidence‐based Probation practices and technology to simplify online processing of civil and criminal cases.

The use of videoconferencing grew, with 60 needed operational improvements. The courts scheduling more than 11,000 video‐ Massachusetts Probation Service (MPS) con‐ conferencing events for bail reviews, pre‐trial tinued its focus on workforce development and hearings, discovery compliance and jury election, training, and aligned its efforts with the Judiciary as well as for cross‐departmental meetings and by creating its own strategic plan. MPS also training. implemented evidence‐based practices first identified in FY15 to enhance public safety The National Center for Access to Justice ranked through effective assessment, supervision, sup‐ the Massachusetts Judiciary at the top of its port, and services. national index in FY16, second only to the District of Columbia, for its efforts to ensure Use of the electronic application for criminal equal access to services and resources for all complaint (EACC) expanded from its original court users. Access to justice, a key component of pilot at the Dudley District Court to an additional the Trial Court’s Strategic Plan 2.0, includes a 20 District Courts, in partnership with 50 local Language Access Plan. The plan, developed in police departments. By the end of FY16, over FY15, continues to be implemented, and includes 12,700 EACC Trial Court cases were entered into acquisition of software to improve interpreter MassCourts. More than 200 local police depart‐ scheduling. ments, as well as the Massachusetts State Police, plan to incorporate EACC as part of their The Volunteer Lawyers Project of the Boston Bar incident reporting systems by the end of FY17. Association presented the Trial Court with its 2016 Yvette C. Mendez Award for the role of Implementation of MassCourts, a web‐based case Court Service Centers in increasing access to management platform, was completed through‐ justice for self‐represented litigants. By the end of out the Trial Court in FY16. MassCourts now FY16, more than 40 specialty court sessions took regularly processes more than one million place across the Commonwealth, including the transactions a day. The Trial Court continued its first family drug court in the nation and a new multi‐year effort to install a new digital recording veterans treatment court to serve western system, For The Record, in the state’s 436 Massachusetts. courtrooms. By the end of FY16 the system had been deployed in 133 courtrooms, including all The Legislature approved a FY16 appropriation Superior Court courtrooms across the state, as of $639.7 million, enabling the continued well as in all multi‐court justice centers with expansion of specialty courts to help address the Superior Courts. As part of its commitment to opioid epidemic, and providing for other much‐ training and professional development, the Trial

Annual Report on the State of the Massachusetts Court System 10 170 Massachusetts Trial Court

Court rolled out its internet‐based e‐Learning delivery of justice, the court user experience, and Center. Close to 3,000 Trial Court personnel public trust and confidence. accessed the online system and enrolled in more than 400 separate, live training events. The plan represents the collective expertise of nearly 200 Trial Court employees and external The Chief Justices and Deputy Court stakeholders. Additional internal and external Administrators of the Boston Municipal, District, input was obtained through focus groups, Housing, Juvenile, Land, Probate and Family, surveys, and discussions that ensured a and Superior Court departments, the Probation comprehensive plan that reflects collective Commissioner, the Jury Commissioner, and the priorities. Directors of the Office of Court Management and Executive Office of the Trial Court effectively Ten Trial Court and Probation task forces oversaw statewide court operations. The developed three‐year plans to address priorities professional commitment and dedication of the in the following specific areas: access to justice state’s judges, clerks, probation, and other court and court user experience, case flow staff ensured the Trial Court’s ability to manage management, next generation technology, talent more than 900,000 cases filed. and career development, the judicial experience, organizational decision making, and Probation This report outlines the State of the Court practices, services, and business processes. System, with an overview of FY16 accomplish‐ ments and delineates recommendations and Close to 80 initiatives, or tactics, were identified. plans for FY17, in accordance with G.L. c. 211B § Milestone timelines were developed and tactic 9A. owners and reporters have been identified to track progress on each tactical plan. The plan can This annual report highlights Trial Court be viewed at mass.gov/courts. accomplishments for FY16 in the following priority areas: Broaden Access to Justice

Access to Justice Broaden Access to Justice Milestones reached this year include launching a Enhance Public Safety guided interview and document assembly Provide a Safe, Sustainable Infrastructure program for small claims complaints, piloting Improve Operational Effectiveness interpreter access in Probation, translating over Engage Local Communities 20 forms that affect liberty interests into seven languages and making them accessible online at Recommendations & Plans for mass.gov/courts/language‐access. Fiscal Year 2017

Strategic Plan 2.0 Race & Implicit Bias Work Three years ago, the Trial Court embarked on an To foster more formal ways to address biases in ambitious reform agenda, One Mission: Justice the court system and in society, in FY16 the with Dignity and Speed. Efforts since then have Supreme Judicial Court and the Trial Court co‐ led to completion of the rollout of a single case sponsored an all‐court conference on race and management system, creation of more than 40 implicit bias, with help from the Flaschner specialty court sessions, introduction of a user‐ Judicial Institute. More than 300 judges attended friendly website, expanded professional the conference. A Planning Committee on Race development, and the launch of electronic case and Implicit Bias was formed after the conference filing and an electronic application for criminal to review the judgesʹ evaluations and to seek complaint. volunteers at all levels of the system to help move the conversation forward. The Trial Court Strategic Plan 2.0 continues the work initiated in also appointed a Chief Diversity & Experience 2013 and updates the roadmap to reach the Officer to facilitate training and to further the Vision for 2025. Four themes are embedded in development of race and implicit bias work the plan: continuous improvement, awareness of within the Trial Court. the impact of race and implicit bias on the

Annual Report on the State of the Massachusetts Court System 11 171 Massachusetts Trial Court

Best Practices in Criminal Sentencing and Family Court departments. The Trial Court Four Trial Court departments with criminal has compiled the court‐connected resources into jurisdiction issued comprehensive criminal one comprehensive listing, in collaboration with sentencing reports in FY16, including best the Massachusetts Legal Resource Finder practice principles to assist judges in developing (massLRF.org), to be posted on the Trial Court individualized, evidence‐based sentences that are website and made available in local courthouses. intended to improve offendersʹ chances of success upon release, reduce recidivism, and Translation of Court Forms better secure public safety. The Sentencing Best Trial Court continues to develop translated court Practice principles state that sentences should be forms and information, available in courthouses proportionate to the gravity of the offense, the and on the Trial Court’s language access portal harm done to crime victims, and the role of the (mass.gov/courts/language‐access). The Trial Court offender. A sentence should be no more severe also developed an online tool for court staff to than necessary to achieve its purposes and submit court forms to be added to the queue for special conditions of probation should be future translation work. narrowly tailored to the needs of the defendant, the public, and the victim, because an excessive Language Access number of special conditions may increase rather Language access is a key component in ensuring than decrease the likelihood of recidivism. The dignity for all who come to court. The Trial principles also encourage judges to inform Court’s Language Access Advisory Committee defendants at the time of sentencing that the continues to meet to oversee implementation of court will consider early termination of their the Trial Court’s Language Access Plan. In probation or lift some conditions if they fully addition, the Committee for the Administration comply. of Interpreters reconvened with the intention of revising and updating the Standards and Alternate Dispute Resolution (ADR) Procedures for interpreters. The Office of Court The availability of court‐connected alternative Interpreter Services submitted a Request for dispute resolution services continued to grow in Information for vendors to provide FY16 through the use of ADR in the District, demonstrations of scheduling software Probate and Family and Superior Court capabilities that would improve efficient and Departments. District Courts in Barnstable, effective deployment of interpreters throughout Brockton and Malden created new conciliation the Commonwealth. The Trial Court expects to programs. The Superior Court Department submit an RFP in FY17 to purchase effective approved two new court‐connected ADR software to support the work of OCIS staff programs for its Middlesex and Essex County schedulers. divisions. These new programs provide free conciliation services to litigants at the pre‐trial Plain Language Forms and Self‐Help hearing stage. The Trial Court Standing In keeping with the goals of the Strategic Plan, Committee on Dispute Resolution worked with the Trial Court has undertaken efforts to revise the Housing Court Department to provide an forms and court materials to be more easily read advanced mediation training program for all and understood by court users, in English as well Housing Specialists. The Committee also as in other languages. FY16 projects included provided conciliation training for District Courts forms and instructions for Superior Court civil in Barnstable, Brockton, and Malden; and for matters and administrative appeals; instructions Probate and Family Courts in Norfolk, Berkshire, for domestic relations procedures; Probate and Hampden, Hampshire, and Franklin Counties. Family Court resources; and domestic violence resources. The Trial Court held multiple trainings Volunteer Lawyer Initiatives for court staff on tools to support court users, Departments of the Trial Court collaborated with legal information, and navigation of the court local bar associations to provide pro bono legal system website. services. The Volunteer Lawyer Project and Lawyer for the Day programs provided legal support to self‐represented civil litigants in the Boston Municipal, District, Housing, and Probate

Annual Report on the State of the Massachusetts Court System 12 172 Massachusetts Trial Court

Technology comprised of court staff and judges have defined In May 2016, the Trial Court launched its first the vision for these resource centers that help Guide & File “Q&A Form,” an online question‐ litigants triage their needs, complete forms, learn and‐answer tool that helps litigants fill out court about local resources, and connect to language forms. The first Guide & File form, for small services. Another three sites will be identified to claims complaints, was piloted in a collaborative open in FY17. A virtual Court Service Center on effort between the Central Division of the Boston the Judiciary’s mass.gov/courts website is also in Municipal Court and the Boston Court Service the works. Center. The three Departments that have jurisdiction over small claims – Housing, District, Enhance Public Safety and Boston Municipal Courts – will expand the use of the Guide & File interview, permitting Expanded Specialty Courts court users to fill out their small claims complaint The Trial Court continued to expand the number forms online, and then print the forms to file in of specialty courts to reach its goal of 50 sessions court. By FY17, the Trial Court intends to connect by 2017. At the end of FY16, 41 specialty court the Guide & File tool to e‐filing, enabling litigants sessions operated across the state as follows: to complete the forms and filing process completely online.  26 Adult and Juvenile Drug Courts: New locations in Fall River, Brockton, and Worcester Access to Justice Initiatives Overseen by the District Courts and Taunton Juvenile Court. Office of Court Management: Family Drug Court opened in Franklin County Probate and Family Court. Slated for fall Judicial Response System 2016: Hingham, Taunton, and Pittsfield District This response system provides judicial inter‐ Courts. vention in emergency situations when the courts are closed. Judges participate through an on‐call  7 Mental Health Courts: New location in Third process coordinated with public safety officials in Middlesex District Court. eight regions. In FY16, judges handled 5,406 emergency evening or weekend calls, for an  5 Veterans Treatment Courts: New locations average of 104 calls per week. For the first time, in Framingham, Holyoke, and Lawrence. an electronic Judicial Response handbook is available to judges on the intranet. Several training events were conducted and a certification process developed in collaboration Interpreter Services with the Center of Excellence for Specialty Courts Approximately 97,000 court events received at UMass Medical School macoe.org. In addition, interpretation services in 109 languages. the Trial Court applied for federal grants to integrate specialty courts with the Community Law Libraries Corrections Centers and to expand the case The Trial Court’s 17 law libraries welcomed management MISSION model to additional sites. 37,525 on‐site patrons, recorded 5.2 million website pages viewed, responded to 25,914 legal Drug Courts reference questions, and answered 5,066 questions via chat and text. The Boston Municipal Court, District Court, and Juvenile Court Departments conducted drug Court Service Centers court sessions in collaboration with the Department of Public Health, Bureau of The Trial Court opened new Court Service Substance Abuse Services, and Department of Centers in Brockton, Greenfield, Lawrence, and Public Health, Bureau of Substance Abuse Springfield in FY16. Since first opening in 2014 in Services, and Department of Mental Health. Boston and Greenfield, the Trial Court’s six Leadership of the Franklin County Probate and Court Service Centers have helped more than Family Court created a Family Drug Court to 50,000 people get the help they need to navigate provide services to parents or caregivers needing the court system. Local advisory committees

Annual Report on the State of the Massachusetts Court System 13 173 Massachusetts Trial Court treatment who agree to participate. Research shows that these specialized sessions reduce crime and substance abuse, enhance public safety, and strengthen families. Key elements of this structured approach include intensive probation supervision and therapeutic program‐ ming, frequent testing, and careful monitoring by the supervising judge. Trial Court Goals Strategic Plan 2.0, 2016 Mental Health Sessions The Boston Municipal Court’s Mental Health Preserve and enhance the quality of Diversion Initiative (MHDI) serves criminal defendants (primarily charged with misde‐ judicial decision‐making. meanors and non‐violent felonies) by offering a pre‐trial diversion or post‐conviction program of Deliver justice with effectiveness, mental health treatment and strict probation efficiency, and consistency in court supervision, rather than detention and jail time. operations and services. The MHDI operates in the Central, Roxbury and West Roxbury divisions. The District Court now conducts mental health sessions in Quincy, Ensure fair access to the court system. Plymouth, and Springfield and, in FY16, intro‐ duced a voluntary Recovery Session in the Respect the dignity of the judicial process Cambridge District Court. and all participants and provide a safe Veterans Sessions environment. The District Court opened new Veterans Treatment sessions in Holyoke, Lawrence, and Support a high‐performance Framingham/Natick. New England’s first veterans treatment court opened in 2012 at the organization with a well‐trained, Dedham District Court, and a session began at engaged, collaborative, and diverse the Central Division of the Boston Municipal workforce. Court in 2014. Veterans treatment courts address the special needs of veterans, particularly issues of post‐traumatic stress disorder and traumatic Increase the transparency and brain injury. accountability of court operations.

Homeless Court Strengthen relations with the Legislative This collaborative program established by the and Executive branches. West Roxbury Division of the Boston Municipal Court, includes participation by the Suffolk County District Attorney’s Office, CPCS, the Pine Explore and expand collaborative and Street Inn and Shattuck Hospital. Individuals innovative approaches to delivering who complete a substance abuse or job‐training justice. program are eligible to have their default warrants removed and their low‐level cases terminated, since open default warrants impact a Enhance public trust and confidence in person’s housing and employment opportunities. the judicial branch.

Family Resolutions Specialty Court The Hampshire Probate and Family Court developed a Family Resolutions Specialty Court, a voluntary program to provide intensive case management and oversight. Its purpose is to reduce conflict and lengthy litigation in domestic

Annual Report on the State of the Massachusetts Court System 14 174 Massachusetts Trial Court

relations cases, focusing on the children in child‐ receive services at the Centers, outcomes can be related cases. Issues are heard and resolved improved and jail costs reduced. through a series of conferences, rather than in a single trial at the end of the proceedings. A Court Officer Training Family Consultant advises parents about ways to The Trial Court Security’s training academy improve communication, decrease conflict, and received national accreditation in July 2016 from develop age‐appropriate parenting plans. the Commission on Accreditation for Law Enforcement Agencies, validating that the Community Corrections Centers standards of professionalism and training In FY16 Probation’s Office of Community practices at the academy are in line with national Corrections sought to increase utilization of com‐ public safety policies and best practices. In early munity corrections centers through consistent 2016, an 8‐week Court Officer Academy communication, increased stakeholder engage‐ provided over 300 hours on court security topics, ment, and continued service delivery improve‐ skills, and abilities, followed by a 12‐week ment. The Office of Community Corrections assignment to a Field Training Officer. In FY16, (OCC) is dedicated to reducing prison all Court Officers completed certification as commitments, thereby reserving incarceration for emergency medical First Responders. In the most serious, violent offenders. By delivering addition, all officers have been equipped and intermediate sanctions that combine treatment trained in the use of Naloxone, or Narcan, to use and accountability measures in a manner that is in case of a drug overdose within a courthouse innovative and motivational, OCC strengthens and already have applied it in several life‐saving communities. With a network of 18 community situations. corrections centers, OCC facilitates an enhanced supervision model that includes behavioral Separate and Secure Waiting Areas therapy to address criminal thinking and The Trial Court has designated 83 separate and substance use disorder, career counseling, secure waiting areas for the 91 court locations educational supports and comprehensive case statewide that conduct criminal business. Only management with accountability measures, such four designated sites existed when G.L. c. 258B as drug and alcohol screening, community‐work passed in 2010 mandating separate areas to service, and leveraging the Massachusetts protect victims and witnesses. Substantial work Probation Service’s electronic monitoring. has been completed on the eight remaining sites to be completed in FY17, which will bring the Federal funds were received to pilot the FY17 Trial Court into full compliance. expansion of the Brockton Community Correction Center’s hours and services to Juvenile Probation Risk Assessment Tool support drug court participants at four nearby The Ohio Youth Assessment System (OYAS) was District Courts. fully implemented in the Juvenile Courts across the state and the OYAS Supervision Standards, Enhancing Pretrial Services which govern the use of this tool, went into effect The Trial Court continues to focus on during the spring of 2016. OYAS is a fourth implementing evidence‐based practices into the generation case management tool used for risk pretrial process. The goal is to support decision and criminogenic needs assessment, case making, services and supervision that deliver the planning, and to determine the most appropriate best outcomes for individuals on pretrial status, levels of probation supervision, based on while insuring public safety. As part of its rehabilitative needs of juvenile probationers. efforts, the Trial Court is also pursuing legis‐ lation to allow for the pretrial population to be Massachusetts Offender Recidivism Reduction provided with much‐needed substance abuse, (HOPE/MORR) education, and job development services at the The HOPE/MORR recidivism reduction project 18 Community Correction Centers run by the for moderate and high‐risk offenders continued Massachusetts Probation Service. Center staff in several District Courts, and in Essex Superior include credentialed and licensed clinicians. By and District Courts in Salem which had received expanding the eligibility of those allowed to federal funding. Efforts to expand to Superior Courts in Worcester and Lowell remain in the

Annual Report on the State of the Massachusetts Court System 15 175 Massachusetts Trial Court planning stage, dependent on resources. The Construction for the new Lowell Justice Center guiding principle of HOPE/MORR is to reduce began in September 2016 and will take recidivism rates by taking swift, certain, and approximately 30 months. The $200 million measured action for probation violations. The project will replace a leased facility and two Trial Court was one of four national recipients of outdated state‐owned courthouses with a seven‐ federal funds to launch this program, modeled story building. Green technologies are planned after Hawaii’s HOPE project. Since its inception to improve energy efficiency. in 2012, over 650 probationers have received HOPE/MORR supervision. In April 2016, the Capital Master Plan Trial Court delivered training to over 100 The Trial Court continues work with the state stakeholders who will be involved in this effort. Division of Capital Asset Management and Maintenance (DCAMM) on a comprehensive Domestic Violence Compliance report on court facility capital requirements and The Trial Court Domestic Violence Education options, along with the funding needed to Task Force leads initiatives to ensure legal achieve those improvements. compliance with the Act Relative to Domestic Violence and to support the Actʹs policy goals. The available capital funds allocated by the The Domestic Violence Coordinator funded by Commonwealth will drive the Trial Court’s the federal Violence Against Women Act helped ability to address deferred maintenance and the Task Force produce five mandatory, online capital projects for the next five to ten years. mandatory training modules. Implementation will continue through FY17 for all Trial Court The planning process included identification of employees and guardians ad litem. the varying levels of deterioration found across the state’s 100 courthouses. Existing facility Provide a Safe, Sustainable conditions were evaluated using a high‐level Infrastructure assessment of overall condition, building

systems, space adequacy, security, code Capital Construction Projects compliance, accessibility, and life safety. A total of $73 million was invested in new construction, renovations, and repairs in Office of Juvenile Justice Delinquency Prevention courthouses in FY16. Sight and Sound Separation for Juveniles Work continues on efforts to remedy conditions The Facilities Management department engaged in which sight and sound barriers are not in numerous deferred maintenance projects sufficient to fully separate adult and juvenile across the state to address aging facilities. detainees, as now required by federal guidelines. Working with the state Division of Capital Asset In FY16, a second group of 25 courthouses was Management and Maintenance (DCAMM), the audited and recommendations were developed department completed approximately $1.8 to address any identified conflicts. In million in study, design, and construction work. collaboration with the Trial Court Security The Court Capital Projects Department oversaw Department, the Division of Capital Asset continued construction for major renovations of Management and Maintenance (DCAMM) and the Franklin County Justice Center in Greenfield the Executive Office of Public Safety and Security and the Essex County Probate and Family Court (EOPSS), 18 sites have been addressed through in Salem, as well as planning for the new Lowell the installation of acoustical curtains and or Justice Center. procedural changes mandated by the Security department. The $65 million Greenfield project includes a four‐story addition and renovation of the original The Division of Capital Asset Management and 78‐year‐old courthouse. The project is estimated Maintenance (DCAMM) has committed funding to be substantially complete by late 2016. The $50 for the remaining sites, and Facilities Manage‐ million Salem courthouse project replaces the ment has sought additional federal funding. rear addition and renovates the 1907 historic building, with the opening planned for early 2017.

Annual Report on the State of the Massachusetts Court System 16 176 Massachusetts Trial Court

Energy & Water Conservation aware of their major duties, understand Energy and water conservation measures are performance expectations, receive feedback on actively pursued across the entire portfolio of their performance, and receive opportunities for state‐owned courthouses, either through systems training and development to improve changes, installation of new energy management performance and expand individual capacity. systems, utility audits, or through the Accelerated Energy Program (AEP) managed by MassCourts DCAMM. The Trial Court completed its multi‐year transition to MassCourts, an integrated, web‐ The Trial Court has been an early and active based case management and data system, in participant in AEP, whose goal is to reduce the 2015. MassCourts enables data collection and consumption of water, fossil fuels, and electricity information sharing needed to track case at state facilities, and also reduce future progress and timeliness. This robust case operating costs. management system replaced 14 different legacy systems. As of June 30, 2016, MassCourts For FY16, implemented energy conservation contained information on 22 million cases, 48.2 measures generated more than $300,000 in million case calendar events, and 15.2 million annual savings energy and water cost savings. scanned documents. MassCourts also enables Efforts included new lighting with occupancy electronic data exchange with a growing number controls, HVAC improvements, and domestic of entities, including the Board of Bar Overseers, water and sewer conservation. Registry of Motor Vehicles, Department of Revenue, and Executive Office of Health & Such conservation measures have or will be Human Services. made across all state‐owned courthouses. Additional FY16 sites included the implement‐ e‐Access & Attorney Portal ation of new energy management systems at The Trial Court significantly expanded the Brockton, Chelsea, and Dorchester Courts. number of civil cases in its e‐access portal, which Energy measures developed for additional courts allows case searches on the public internet have been planned and approved for Lawrence, (masscourts.org). In addition, rollout of the Lowell, and Newburyport. attorney portal occurred in conjunction with the Superior Court MassCourts implementation. This Improve Operational Effectiveness secure portal gives registered attorneys access to

cases and calendar views of case data stored in Trial Court e‐Learning Center the MassCourts system. By the end of FY16, over In FY16, Judicial Institute staff implemented a 9,100 attorneys had registered on the portal. new, online learning management system for the Trial Court. The Trial Court e‐Learning Center Digital Recording in Courtrooms (TCe‐LC) enables the Judicial Institute and other The Trial Court continues its multi‐year project Trial Court training entities to conduct regis‐ to install a digital recording system, For The tration, track attendance and offer online training Record, throughout the state’s 436 courtrooms. to all Trial Court employees, among other The FTR system will download daily recordings functions. By December 2016, over 3,000 Trial of courtroom proceedings across the state to a Court personnel accessed the new system, central server, and will later be integrated with enrolling in over 400 separate, live training MassCourts to track and locate recordings for events. The implementation of the TCe‐LC fulfills individual cases. FTR has completed installations one of the major training‐related goals of the in 158 courtrooms since the inception of the Trial Court’s first Strategic Plan. project in 2015. At least another 68 courtrooms are slated for FTR implementation by the end of Performance Reviews FY17. FTRʹs multi‐year installation continues on Annual performance evaluations for all manage‐ schedule, with projected completion in FY19. All ment and union employees were completed for Superior Court courtrooms and multi‐court the first time in FY16. Annual performance Justice Centers are now converted to the new discussions enhance communication between system, including locations in Brockton, employees and managers, so that employees are Dorchester, Salem, Worcester, Plymouth, and

Annual Report on the State of the Massachusetts Court System 17 177 Massachusetts Trial Court

Springfield. Next in line for implementation are that complements the online training begun in courthouses in New Bedford, Barnstable, Quincy, FY16. and the Edward W. Brooke Courthouse in Boston. Juror Utilization Juror utilization remains a top priority for the Signature Customer Experience Training Trial Court and the Office of Jury Commissioner. The Trial Court will continue to expand After declining slightly to 46.8% in FY15, the implementation of the Signature Customer statewide juror utilization rate rose to a new Experience program to all court divisions across record of 47.2% in FY16. Monthly utilization rates the Commonwealth over the next few years. This were consistently higher for most of the year, and program recognizes that for most court users, the trend towards declining numbers of their experience in the clerk’s or register’s office impanelments stabilized somewhat, particularly is their first and most extensive experience with in the second half of FY16. Suffolk Superior the judiciary. Ensuring that litigants have a Court, in particular, saw a significant increase in positive experience in the clerk’s/register’s office impanelments over FY15. is, therefore, critical to the public’s trust and confidence in the courts. Court staff participate Indigency Verification in this program as a team to examine and better The Supreme Judicial Court (SJC) finalized major understand their interactions among themselves, revisions to SJC Rule 3:10 clarifying the as well as their interactions with court users, to standards to determine who is to be found be able to ensure the provision of excellent indigent. The revised rule adds juveniles and service to the public. More than 70 sessions of young adults to its definition, expands those this program were offered to the staff of more entitled to appointment of counsel, and further than 25 court divisions this year. clarifies the imposition and collection of various indigency fees as well as the procedural process Videoconferencing to be used in determining indigency. The full text There are now 116 videoconferencing units of the revised rule is available online at deployed across the Trial Court, with 80% of mass.gov/courts under “Case & Legal court facilities having at least one unit. There has Resources.” been a steady increase in the number of videoconferencing events over the past 18 Civil e‐Filing months, with some 9,500 unique events taking The Judiciary completed the six planned e‐filing place between January 2015 and June 2016. Of pilots for both the Trial Court’s Worcester that total, over 4,800 bail reviews and more than District Court, Essex Probate and Family Court, 2,100 pretrial hearings were conducted via the Brighton Division of the Boston Municipal videoconferencing. Court, and the Appellate Courts. These pilots were intended to integrate established case Professional Development: Expanded Training management systems with vendor Tyler Programs Technologies’ e‐filing portal. The Trial Court The Judicial Institute offered a wide range of integrated Tyler Technologies’ cloud service with additional training for Trial Court judges and the CourtView CMS (MassCourts) using OASIS employees, including a Human Resources ECF standardized filing transactions. In the Orientation, a mandatory program for new Appellate Court the same standard was used to employees. Programs introduced in FY16 interface with Forecourt. In addition, the Tyler include: Assembling the Record on Appeal Guide and File tools were used to build guided tailored to each Trial Court department; interviews for use by pro‐se litigants in small Courtroom Evidence for Judges, a course of claims cases. These interviews were initially used workshops for judges on specific evidentiary in Court Service Centers for generating issues; a program on bail issues; ongoing traditional paper documents and will be Learning Labs for judicial mentor‐coaches; transitioned to fully electronic filings in FY17. sessions on the new Code of Judicial Conduct for judges; and a “train the trainers” session for a group of Trial Court judges and staff who will be presenting a live session on domestic violence

Annual Report on the State of the Massachusetts Court System 18 178 Massachusetts Trial Court

Engage Local Communities Juvenile‐Focused Partnerships All divisions of the Juvenile Court partnered

Jury Duty Cable TV Series with local Probation and Office of Community The Office of Jury Commissioner (OJC) created a Corrections staff, community leaders and non‐ 12‐episode cable TV series for the Boston profits to plan and implement a wide variety of Neighborhood Network in FY15 to educate community‐based programs, including viewers about jury duty and the jury system. Operation Night Light, Mothers Helping Based on its success, the OJC recorded and Mothers, Truancy Watch, Stop Watch, broadcast a second season of 12 episodes in FY16. Shakespeare in the Court, Bridging the Gap, and Topics included: the role of juries in the Boston the Juvenile Resource Center. Municipal Court and the Housing Court, famous jury trials, the introduction of attorney voir dire, Partnerships with Schools, Non‐Profits, and and how an impanelment is conducted. The Law Enforcement entire series is available for viewing on the OJC Judges, clerks, probation staff, and others in all website, and is being distributed to cable TV Trial Court departments partnered extensively stations across the Commonwealth for broadcast. with leaders in their local communities to develop programs that address the needs of National Adoption Day those communities. School‐based efforts shared National Adoption Day is one of several projects information about the court’s role in the supported by the Massachusetts Court community through opportunities such as mock Improvement Program, a federally‐funded trials and internships. Outreach included program administered by the Supreme Judicial ongoing work with advocacy and membership Court. In November 2015, more than 100 children groups that regularly interact with the who were in state foster care were formally courts. Courts worked closely with local law adopted in three courthouses across the enforcement to provide guidance on a range of Commonwealth as part of the state’s 13th annual issues, including search and seizure law, new National Adoption Day, an event to raise statutes and rules amendments, and law awareness of the thousands of Massachusetts enforcement matters for new police children in need of adoptive families. Children cadets. Probation staff continued work with local and their adoptive families participated in police, non‐profits, and other entities to design adoption ceremonies at the Franklin/Hampshire programs that combat violence and reduce crime. Juvenile Court in Hadley, which served as the Celebrations to observe Law Day took place in statewide media site for the event; the George N. May in courthouses throughout Massachusetts, Covett Courthouse in Brockton, the Edward W. including the John Adams Courthouse in Boston, Brooke Courthouse in Boston; the Berkshire where the Supreme Judicial Court hosted Juvenile Court in Pittsfield, and the Worcester approximately 100 high school students from Trial Court. Fenway High School and Cathedral High School.

National Family Reunification Day Jury Outreach and Education The Berkshire Juvenile Court, in collaboration The Office of Jury Commissioner (OJC) with the Department of Children and Families, continued its community outreach program with the Committee for Public Counsel Services, and schools and community groups, court personnel the Berkshire Children and Families/Family and others. In FY16, 6,467 people attended 178 Resource Center, celebrated the reunification of OJC Public Outreach presentations at 89 different two local families at a special ceremony after locations, a 5% increase in attendance and a 13% successfully completing their conditions of court‐ increase in presentations over FY15. The OJC also ordered separation. The event, which took place continued outreach efforts to urban, in Pittsfield, is the first of its kind to be held in underserved, and adult audiences to ensure the the state. The Juvenile Court hopes to make most diverse and representative jury pools Family Reunification Day a biennial tradition at possible statewide. its courthouses throughout the Commonwealth, in the spirit of the Trial Courtʹs annual Adoption Day.

Annual Report on the State of the Massachusetts Court System 19 179 Massachusetts Trial Court

The Family Court Answer Center Run by the Probate and Family Court, the Family Court Answer Center is a free resource for mothers and fathers who have questions related to their family law cases. The Center provides parents with opportunities to meet individually with attorneys, as well as court staff and representatives from the Department of Revenue, Department of Children and Families, the Probation Department, and Domestic Violence advocates. The Answer Centers are held once a month at the Court Service Center in the Edward J. Brooke Courthouse in Boston.

Changing Lives Through Literature Developed through a collaboration of higher education and Trial Court representatives, Changing Lives through Literature strives to reduce recidivism through reading. Taught by English professors, each CLTL program encourages participants, who include judges, probationers, and probation officers, to examine their experiences, challenges, and life choices by exploring diverse works of literature and poetry. In FY16, justices and probation officers from the District Court, Boston Municipal Court, Superior Court, Juvenile Court, and the Probate and Family Court participated in numerous CLTL programs at community colleges and courthouses across the Commonwealth, including Enhancing Families Through Literature, an innovative variation of CLTL for court‐supervised families and their young children developed by the Berkshire Division of the Probate and Family Court in FY15.

Annual Report on the State of the Massachusetts Court System 20 180 Massachusetts Trial Court By the Numbers

Data is for Fiscal Year 2016 or as of June 30, 2016, unless otherwise noted.

People Judicial positions authorized by statute 379 Total Judges and Staff 6,314 Percent Women 56.9% Percent Diverse Staff 22.4% Judicial Institute (JI) Training Programs 233

Access to Justice Judicial Emergency Response (calls after hours) 5,406 Interpreted Events 97,000+ Number of Languages 109 Law Libraries 17 Law Libraries: On‐site Patrons 37,525 Court Service Centers: Visitors from May '14 to Nov '16 53,890 Judiciary Website Visitors (mass.gov/courts) 3.3 M Judiciary Website Page Views 23.3 M

Money Matters Operating Appropriation $ 631.5 M General Revenue Collected $ 59.4 M Probation Fees Collected $ 20.2 M Indigency Verifications Completed 115,101

OVER

Annual Report on the State of the Massachusetts Court System 21

181 Data is for Fiscal Year 2016 or as of June 30, 2016, unless otherwise noted. Court Business New Case Filings 912,757 Cases in MassCourts 22 M Electronic Documents in MassCourts 15 M Docket Entries 18.9 M Trials Held 10,741 Jurors Appearing 205,353 Juror Utilization Rate 47.2% Probation Supervision Caseload 82,789 Probation Violation Hearings 113,503 Total GPS Caseload 3,008 Community Correction Centers (CCC) 18 CCC Enrollment 2,540 Community Service Hours 223,820 Alternative Dispute Resolution Programs 53 Specialty Courts 41 Adult and Juvenile Drug Courts 26 Mental Health Courts 7 Veterans Treatment Courts 5 Other 3 Alternative Dispute Resolution Programs 53 Video Events 9,565 Stays in Lockup 237,317

Case Flow Metrics Clearance Rate 98.1% Cases Disposed Within Time Standards 87.0% Pending Caseload 248,916 Trials Held Within Two Date Settings 70.7%

Facilities Facilities with Courtrooms 100 State/County Owned Facilities 79 Number of Courtrooms 436 Total Facilities ‐ Floor Space in Gross Sq. Ft. 5.6 M

Annual Report on the State of the Massachusetts Court System 22

182 Massachusetts Trial Court

Boston Municipal Court Department

Fiscal Year 2016 Highlights

Guide & File The Trial Court’s first Guide & File interview went “live” at the Brooke Courthouse Service Center for small claims complaints filed in the Central Division of the Boston Municipal Court Department. Guide and File is one of the newest innovations in access to justice technology available for court users. An interactive electronic interview allows a litigant to answer a series of questions which then populates a small claims court form. This guided interview program will ultimately integrate with File & Serve, the Trial Court’s e-filing system that will enable litigants to complete forms and file cases online. A team of Trial Court subject matter experts developed a comprehensive interview that was legally accurate and in plain language to allow a self-represented litigant to easily understand the Edward W. Brooke Courthouse, interview. Boston

Completed Rollout of MassCourts Judges: 30 The Boston Municipal Court Department completed its rollout of MassCourts with the conversion of the Central Division from a client-server based version to the web- Divisions: 8 based version of MassCourts. This rollout included implementation of full criminal docketing in MassCourts for the first of the BMC divisions. Criminal docketing will FY2016 Case Filings: 84,754 automatically generate relevant forms and docket templates to ease the data entry process. Jurisdiction: Civil jurisdiction includes cases in Specialty Courts which the likely recovery does not Homeless Court exceed $25,000; small claims cases; Open default warrants often affect housing and employment opportunities, therefore summary process cases; mental health, resolving these legal barriers gives individuals a greater chance at self-sufficiency. and alcohol and drug abuse This program assists residents of the Pine Street Inn and other Boston shelters who commitments; domestic violence have open default warrants for misdemeanors and low level felonies. The program restraining orders and harassment includes participation by the Suffolk County District Attorney’s Office, the prevention orders. Criminal juris- Committee for Public Counsel Services, Pine Street Inn, and Shattuck Hospital. diction extends to enumerated felonies Called the “Court of Second Chances,” the Homeless Court allows participants who punishable by a sentence of up to five show a commitment to change behavior to receive substance abuse and mental years and many other specific felonies health treatment, as well as access to job training programs. with greater potential penalties; misdemeanors, including violations of Mental Health Court domestic violence restraining orders; The Mental Health Diversion Initiative (MHDI) serves criminal defendants and violations of city and town (primarily charged with misdemeanors and non-violent felonies) by offering a pre- ordinances and by-laws. The Court has trial diversion or post-conviction program of mental health treatment and strict jurisdiction over evictions and some probation supervision instead of detention and jail time. This collaboration between related matters, and provides judicial the criminal justice and mental health treatment systems aims to improve the quality review of some govern-mental agency of life of people with severe mental illness by providing access to comprehensive determinations. services and to improve public safety by reducing recidivism. In these sessions, probation officers collaborate with social workers, prosecutors, and defense counsel to connect mentally ill defendants with treatment providers and mental health services as an alternative to incarceration. MHDI sessions are now held in the Central, Roxbury, and West Roxbury divisions.

Annual Report on the State of the Massachusetts Court System 23 183 Massachusetts Trial Court

District Court Department

Fiscal Year 2016 Highlights

Civil Pilot on Dedicated Civil Sessions A new procedural pilot program involving all civil money damage actions in the five District Court divisions in Norfolk County was launched in FY16. Two Dedicated Civil Sessions (DCS) will address all actions for money damages, except for consumer debt cases. Each DCS, and the judge assigned to the session, is devoted exclusively to the management and disposition of the civil cases transferred to it. Fall River Justice Center Attorney voir dire will be available in the DCS, and a Civil Case Liaison has been designated in each division to improve communication with attorneys and facilitate Judges: 158 the movement of civil cases to disposition. Divisions: 62 Electronic Application for Criminal Complaints The Electronic Application for Criminal Complaint (EACC) is an electronic data FY2016 Case Filings: 563,428 exchange that allows law enforcement agencies to transmit an application for a criminal complaint, with accompanying attachments, to the Trial Court and receive Jurisdiction: electronic information back as to the results of submission. The exchange is further Civil jurisdiction includes cases in intended to establish reliable and immediate linkage using the Offense Based which the likely recovery does not Tracking Number (OBTN) between an arrest and any pending criminal cases that exceed $25,000; small claims cases; may result in a finding of probable cause. Since January 2016, the use of EACC has summary process cases and related expanded to 20 District Court divisions, in partnership with 45 local police matters; mental health, and alcohol and departments. By the end of FY16, more than 3,000 EACC District Court cases had drug abuse commitments; domestic been entered into MassCourts. violence restraining orders and harassment prevention orders. The Videoconferencing Court also provides judicial review of Videoconferencing use and capability have dramatically increased throughout the some governmental agency District Court. In FY16, videoconferencing was used in over 5,000 separate criminal determinations. Criminal jurisdiction court events, including pretrial hearings, compliance and election hearings, speedy extends to felonies punishable by a trial requests, and default and warrant removal hearings. The use of sentence to state prison of up to five videoconferencing helps to reduce costs, address safety concerns and delays years and many other specific felonies associated with the transportation of prisoners and detainees. Videoconferencing with greater potential penalties; also improves the efficiency of case management through technology, while misdemeanors, including violations of safeguarding individual access to justice and due process rights. domestic violence restraining orders; and violations of city and town Hospital Arraignments by Videoconferencing ordinances and by-laws. The Worcester District Court initiated a videoconferencing pilot project for hospital arraignments to eliminate the need for a judge and staff to travel to the hospital. It also minimizes any potential for disruption or inconvenience to others at the hospital. With the use of an oversized tablet or similar device, the defendant/patient is able to see both the judge and the courtroom, and “appears” in the courtroom via the court’s videoconferencing equipment. Plans are underway to expand this to additional District Court divisions.

New Specialty Courts Three new Veterans Treatment sessions began in Framingham, Holyoke and Lawrence in FY16. Additionally, new drug court sessions started in Fall River, Lowell and Worcester. The Cambridge District Court also introduced the “Recovery Session,” a new mental health session.

Civil e-Filing Pilot Expansion In April 2016, the Quincy District Court became the second division to receive new civil case filings through an electronic interface with the Trial Court and a civil e- Filing vendor. The pilot has been successful in the Worcester Division. With the expansion of the pilot project to the Quincy District Court, nearly a dozen additional law firms, as well as the code enforcement bureau of the Attorney General’s Office, can e-file new civil cases, case pleadings and motions with the court clerk. The new process expedites case filings and minimizes data entry in the clerk’s office.

Annual Report on the State of the Massachusetts Court System 24 184 Massachusetts Trial Court

Housing Court Department

Fiscal Year 2016 Highlights

New Leadership In September 2015, Judge Timothy F. Sullivan was appointed as Chief Justice of the Housing Court Department for a five-year term starting October 1, 2015, following the retirement of Chief Justice Steven D. Pierce. A Housing Court judge since 2004, Chief Justice Sullivan had served as First Justice of the Northeast Division and an Associate Justice in the Worcester Division. Taunton Trial Court

Legislative Activity Judges: 10 In the 2014-2015 legislative session, hearings were held to propose statewide expansion of the Housing Court. The case for expansion was strong, however, due Divisions: 5 to budget constraints, the Legislature did not enact the bill. The Court plans to discuss refiling the bill in the next legislative session. FY2016 Case Filings: 41,531 ADR Referrals: 21,243 In 2015, the Governor signed “An Act to Clear Title to Foreclosed Properties” for effect on December 31st. The Act granted jurisdiction to the Housing Court to hear Jurisdiction: foreclosure challenges, and set forth rules for resolving competing claims of title, The Housing Court has jurisdiction in post-foreclosure sale. law and equity over all civil and criminal matters involving the use of Alternative Dispute Resolution (ADR) residential property and the activities Housing Court Specialists play a vital role in case management and the Court uses conducted thereon as well as the use of MassCourts ADR screens to monitor data on settled and unsettled cases. In May any other real property and the 2016, Specialists from each Housing Court division attended a three-day program activities conducted thereon as such conducted by Massachusetts Public Health Inspectors. The comprehensive course affect the health, safety, or welfare of involved: classroom time; a written exam; supervised field training inspections; and any resident, owner, or user of a computer-based virtual inspection and assessment. residential property. The Housing Court hears summary process Community Partnership & Outreach (eviction), small claims, and civil The Worcester Division gave after-hours presentations on housing law to the actions involving personal injury, Worcester Property Owners Association, the Northern Worcester County Landlord property damage, breach of contract, Association, and the MetroWest Property Owners Association. The Northeast discrimination, and other claims. The Division hosted a training session with the North Shore Community Action Housing Court also adjudicates code Programs, Northeast Legal Aid, and the Northeast Justice Center on landlord/tenant enforcement actions and appeals of law in Salem. The Court’s Boston Division Judges, Clerk Magistrate, and Chief local zoning board decisions affecting Housing Specialist participated in training for inspectors of the Boston Inspectional residential property. Services Department and hosted a bench-bar conference for Boston attorneys. The Southeast Division presented a program in Fall River on “The Anatomy of an Eviction.” The Western Division collaborated with the Western New England Law School’s Consumer Law Clinic. Students operating under SJC Rule 3.03 learned about housing law and represented litigants in summary process matters. Community Legal Aid played a key role in these efforts by supervising and guiding law students during their representation.

Annual Report on the State of the Massachusetts Court System 25 185 Massachusetts Trial Court

Juvenile Court Department

Fiscal Year 2016 Highlights

Race and Implicit Bias Work The Juvenile Court collaborated with the Juvenile Detention Alternatives Initiative (JDAI) and other juvenile justice partners to develop, film and produce an innovative and thought-provoking video on race and implicit bias. The video discusses why focusing on racial and ethnic disparity is so important to the work in the Juvenile Court, and will be released along with materials to facilitate trainings and further Worcester Trial Court conversations. Judges: 41 Through the partnership with JDAI, each Juvenile Court division now receives data to enable local conversations regarding disparity at a variety of juvenile justice Divisions: 11 decision points. The Juvenile Court has also convened a Race and Implicit Bias Committee comprised of judges, clerk magistrates, and others. FY2016 Case Filings: 37,271

Sentencing Best Practices Jurisdiction: The Juvenile Court convened a working group to consider best practices to be used The Juvenile Court Department has in formulating juvenile dispositions. The working group included a number of general jurisdiction over delinquency, partners, including the Juvenile Court, Department of Youth Services, Probation children requiring assistance (CRA), Service, Committee for Public Counsel Services, the Massachusetts Chiefs of Police care and protection petitions, adult and District Attorneys Association. contributing to a delinquency of a minor, adoption, guardianship, The committee’s goal was to ensure that each judge who imposes a sentence has the termination of parental rights information needed about the defendant and the crime to determine an appropriate proceedings, and youthful offender sentence and, where probation is imposed, to determine which conditions will best cases. address the particular needs of the defendant.

The working group finalized Dispositional and Sentencing Best Practices for Delinquent and Youthful Offender Matters, a comprehensive document that received an immensely favorable response.

National Reunification Day Celebration In June 2016, the Berkshire County Juvenile Court held the first Reunification Day event together with the Department of Children and Families, Committee for Public Counsel Services and the Berkshire Children and Families/Family Resource Center. Two families were honored for their courageous efforts to reunify with their children. The Berkshire County Juvenile Court hopes to make this a biennial tradition.

Annual Report on the State of the Massachusetts Court System 26 186 Massachusetts Trial Court

Land Court Department

Fiscal Year 2016 Highlights

Permit Session Report Per MGL c. 185, §3A, cases filed in the Land Court’s Permit Session are individually assigned to a judge who handles the case from commencement to conclusion. By statute, cases allowed entry into the Permit Session only include specified disputes where, “…the underlying project or development involves either 25 or more dwelling units or the construction or alteration of 25,000 square feet or more of gross floor area or both.” The legislation also established three timeframes or tracks for these cases to follow from filing to disposition.

During FY16 in the Permit Session, nine cases were pending at the beginning of the Suffolk County Courthouse, Boston fiscal year, six new cases were filed, and nine were disposed, resulting in six pending into the next fiscal year. All of the case filings or transfers into the session took place Judges: 7 in the first seven months of the fiscal year. The case disposition timeframes ranged from one month to 11 months, with an average time to disposition of approximately Case Filings in FY2016: 19,546 7.5 months. The filed cases originate from Essex, Middlesex, Norfolk, and Plymouth

Counties. Jurisdiction:

The Land Court Department of the Statewide Coverage Trial Court has statewide jurisdiction. Land Court judges continued their practice of travelling throughout the The court has exclusive, original Commonwealth to conduct local judicial events. These off-site events occurred on jurisdiction over the registration of title 33 separate dates and included property site views and trial events at locations in to real property and over all matters and eight counties. disputes concerning such title

subsequent to registration. The court Onsite Alternative Dispute Resolution (ADR) Pilot also exercises exclusive original A retired Appeals Court Justice is conducting no-cost, onsite screening sessions of jurisdiction over the foreclosure and cases referred by Land Court judges at the case management conference stage. redemption of real estate tax liens. The Twenty-eight cases have been screened, resulting in more parties opting to mediate court shares jurisdiction over other with court-connected, private ADR programs. In a number of instances where one property matters. The court has or both parties could not afford a private mediator, the retired Justice conducted concurrent jurisdiction over specific mediation onsite. performance of contracts relating to

real estate and over petitions for As part of the pilot program, several Land Court judges conducted conciliation partitions of real estate. The court sessions for their colleagues in cases where a short session might move the parties shares jurisdiction over matters arising to resolution. This approach proved quite effective in achieving practical, win-win out of decisions by local planning resolutions. boards and zoning boards of appeal.

Both the Land Court and the Superior Along with the pilot program, approximately 60 traditional case referrals were made Court Department have jurisdiction to five court-connected Alternative Dispute Resolution providers. over the processing of mortgage foreclosure cases, determining the military status of the mortgagor. Additionally, the court has super- intendency authority over the registered land office in each registry of deeds.

Annual Report on the State of the Massachusetts Court System 27 187 Massachusetts Trial Court

Probate and Family Court Department

Fiscal Year 2016 Highlights

Hampshire Division Family Resolutions Specialty Court Franklin County Courthouse, The Hampshire Probate and Family Court this year introduced a Family Resolutions Greenfield Specialty Court. The voluntary program will provide intensive case management and oversight by the judge and staff. This specialty court aims to reduce conflict and Judges: 51 lengthy litigation in domestic relations cases involving children. Divisions: 14 Franklin County Family Drug Court Probation Officers will screen cases for participation in the Franklin County Family Case Filings in FY2016: 142,138 Drug Court, a new specialty court created by the Franklin County Probate and Family Court. If parents are appropriate candidates for treatment, and the parent and Jurisdiction: the children's caregiver agree to participate, time standards will be extended, giving The Probate and Family Court of the parent needing treatment up to two years to address his or her substance use Massachusetts has jurisdiction over issues without the underlying court case proceeding to trial. During that time, the family matters such as divorce, parent will participate in drug treatment and mental health counseling, and will paternity, child support, custody, attend bi-weekly sessions at the court where progress will be monitored by the judge parenting plans, adoption, termination and court staff. Services also will be offered to children and caregivers, including of parental rights, and abuse trauma assessments and follow up treatment, education about addiction, referrals for prevention. Probate matters include resources and supportive services. wills, administrations, guardian-ships, conservatorships and change of name. Alternative Dispute Resolution: Hampden Division Onsite Mediation The Court also has general equity Onsite mediation services are provided through a collaboration between The jurisdiction. Mediation and Training Collaborative and students from the Western New England School of Law (WNEU). The Hampden Probate and Family Court is the first site to pilot mandatory mediation in the Trial Court under SJC Rule 1:18, and the pilot includes participation of law students from a mediation clinic. The WNEU clinic provides onsite mediation services on a weekly basis. The clinic supervisor co- mediates as lead mediator with each student.

In FY16, 75 mediations were conducted. Of those cases, 50 settled or partially settled, for a 66% resolution rate. The WNEU Clinic conducted 24 of the 75 mediations, and 18 of those mediations reached complete or partial settlement for a 75% resolution rate.

Creating Community Connections through the Arts The Probate and Family Court received a Trial Court Innovation Grant to engage the community in displaying artwork in its courthouses, creating a positive atmosphere for litigants, attorneys and staff. This grant expanded a previously successful art project in the Essex Division. Eleven of the 14 divisions of the Probate and Family Court benefitted from this grant that allowed local schools and artists to display artwork. These divisions have established new connections to their communities and brightened the courthouses.

Annual Report on the State of the Massachusetts Court System 28 188 Massachusetts Trial Court

Superior Court Department

Fiscal Year 2016 Highlights

Attorney Participation in Jury Voir Dire MGL c. 234, §28, authorized attorney participation in jury voir dire in civil and criminal trials in the Superior Court. The law, effective in February 2015, along with Superior Court Standing Order 1-15, provided an interim procedure to govern the process pending completion of the work of the Supreme Judicial Court (SJC) Committee on Juror Voir Dire.

During FY16, the Superior Court gathered detailed data, including information relating to the number of civil and criminal trials in which attorney voir dire was J. Michael Ruane Judicial Center, used, how it occurred, time spent, number of jurors utilized, and the views of judges, Salem attorneys, clerks, and jurors regarding the process. That data contributed to the conclusions of the SJC Committee regarding best practices, and will inform the Judges: 82 Superior Court’s effort to develop a rule to govern voir dire for the future.

Counties: 14 MassCourts

The Superior Court completed its MassCourts conversion in all counties. Training Case Filings in FY2016: 24,089 was coordinated for judges, clerks’ offices, and judicial secretaries. Work continues to improve data entry practices for increased consistency and accuracy. Attorneys Jurisdiction: can electronically access case information in their civil and criminal cases through The Superior Court has original an Attorney Portal. The public accesses certain civil case types, including scanned jurisdiction in civil actions over decisions, orders, and judgments, as well as criminal case information by docket $25,000, and in matters where number. equitable relief is sought. It also has

original jurisdiction in actions Sentencing Best Practices involving labor disputes where The Superior Court established a Working Group on Best Practices in Individualized injunctive relief is sought, and has Evidence-Based Sentencing, including judges, prosecutors, defense attorneys, and exclusive authority to convene medical representatives of the Massachusetts Probation Service. In March 2016, the group malpractice tribunals. issued Criminal Sentencing in the Superior Court: Best Practices for Individualized

Evidence Based Sentencing. The report sets out 17 best practice principles and The Court has exclusive original identifies support for each principle in legal authorities and research literature. jurisdiction in first degree murder cases

and original jurisdiction for all other Civil Litigation Options crimes. It has jurisdiction over all A Working Group on Options for Cost Effective Civil Litigation with judges and felony matters, although it shares attorneys developed proposals in FY16 to make civil litigation more just, speedy, jurisdiction over crimes where other and inexpensive. Following discussion, publication, comment, and revision, the Trial Court Departments have Court adopted three initiatives: 1) parties can seek an individual case management concurrent jurisdiction. Finally, the order, including agreed-to changes in otherwise applicable procedures regarding Superior Court has appellate discovery, trial, and post-trial events; 2) the Court will conduct a pilot program for jurisdiction over certain administrative early case management conferences for specified case types requiring parties to proceedings. confer and exchange settlement proposals prior to the conference; 3) a new Superior Court rule will clarify requirements on timing and scope of disclosure of expert witness testimony, to avoid delays that often arise from delayed or incomplete disclosure. .

Annual Report on the State of the Massachusetts Court System 29 189 Massachusetts Trial Court

Office of Jury Commissioner Fiscal Year 2016 Highlights

Postcard Pilot The OJC conducted a successful “postcard notification” pilot program, thanks to an $8,000 Trial Court Innovation Grant awarded at the beginning of 2016. Prior to the scheduled mailing of the traditional summons package, 14,000 postcards were mailed to all jurors summoned to appear for service in the first week in August. The mission of the Office of Jury Recipients were asked to respond on the OJC’s website, where they could find all Commissioner is to provide randomly- of the information and materials typically included in the paper summons package. selected pools of eligible jurors, A remarkable 65% of those who received the postcard responded to their postcard representative of the community from summons, eliminating the need to send costly paper packages to well over half the which they are drawn, to each of the jury scheduled recipients. The OJC estimates it will reduce annual mailing costs by more courts of the Commonwealth of than $120,000 by implementing the postcard program as a regular business practice. Massachusetts, in accordance with the needs of those courts and the direction of Repeal of c.234 the Trial Court. The Governor signed a bill put forth by the OJC to repeal c.234, the former jury statute, which had been almost entirely superseded in 1982 by the current jury Constitution of the Commonwealth of statute, Mass. Gen. L. c.234A. The continued existence of the outdated c.234 in the Massachusetts Massachusetts General Laws had been a source of ongoing confusion as jurors sought “exemptions” that had been revoked 30 years ago and courts occasionally Article XII relied upon invalid provisions of the prior law. The few provisions of c.234 that had not been superseded were added to c.234A as amendments. The quality of justice in And the legislature shall not make any the Commonwealth was enhanced by the elimination of contradictory provisions of law, that shall subject any person to a law from the statue and clarification of the true state of jury law in Massachusetts. capital or infamous punishment. . .without trial by jury. Deaf Juror Pilot Program In FY16, the OJC concluded its successful pilot program for deaf jurors, which was Article XV commenced in FY13 in collaboration with the Massachusetts Commission for the Deaf and Hard of Hearing (MCDHH). OJC and MCDHH worked together to In all controversies concerning property, provide American Sign Language (ASL) interpreters to allow deaf citizens to and in all suits between two or more perform jury service in courthouses across the state. Due to the severe shortage of persons . . . the parties have a right to a court certified ASL interpreters, MCDHH had been unable to assist deaf citizens trial by jury; and this method of with jury service for well over a decade. procedure shall be held sacred . . .

The pilot program was launched in May 2013 at the Brooke Courthouse in Boston and then continued on a quarterly basis. In FY16, deaf citizens served in Hampden, Jurors Summoned in FY16: 672,643 Barnstable, Suffolk and Middlesex Counties. The program has now been implemented as a permanent part of the OJC’s summoning procedure, focusing Jurors Serving in FY16: 205,432 primarily on the counties with the greatest population of deaf citizens in a “summoned status,” waiting to serve. Also in FY16, the OJC met with the Disability Juror Utilization Rate (% of jurors Law Center and a private provider of interpreter services, to explore ways to expand appearing who are impanelled, access to deaf jurors even further. challenged, or excused): 47.2%

Annual Report on the State of the Massachusetts Court System 30 190 Massachusetts Trial Court

Massachusetts Probation Service

Fiscal Year 2016 Highlights The Massachusetts Probation Service (MPS) employs 1,800 professionals Strategic Plan who work to increase community The Massachusetts Probation Service (MPS) completed its first strategic plan as an safety, reduce recidivism, contribute to integral part of the Trial Court’s second planning effort. The process helped clarify the fair and equitable administration of goals and direction for the next three years, and served as an opportunity to justice, support victims and survivors, strengthen leadership and communication. The plan includes tactics to develop and and assist individuals and families in enhance work in programming, supervision and services, workforce development, achieving long term positive change. business processes and communications and governance. MPS supervises and provides Victim Services rehabilitative services to individuals MPS received Victim of Crime Act (VOCA) funding through the Massachusetts under court-ordered supervision. MPS Office for Victim Assistance, which enabled hiring of a dedicated Victim Services supports court operations and decision Coordinator (VSC) in October 2015 to provide services to victims and survivors making through case processing and whose offenders were under Electronic Monitoring (ELMO) supervision and others managing and delivering electronic throughout Worcester County. In just eight months, 742 victims and survivors information. MPS updates and quality received direct services. In FY16, the MPS secured additional VOCA funding to checks information which feeds law hire three more VSCs and build a statewide Victim Services Unit. enforcement information systems.

Record Sealing Wait Time Reduced MPS employs evidenced-based tools The MPS Sealing Unit reduced the wait time for record sealing from more than three and programming to address offenders’ months to one business day for records ordered sealed by a judge and processed by needs. MPS plays a critical role in child Probation, and to only three days for records sealed directly by Probation’s Sealing protection through Probate and Family Unit. This benefits probationers whose criminal records often serve as a major and Juvenile Courts. MPS provides barrier to securing housing and employment. dispute mediation and disposition support to ensure child safety and best Enhanced and Expanded Drug Testing interests. During FY16, MPS strengthened its random drug testing by expanding the types of drugs to be tested and the types of equipment used. A new 10-panel cup was MPS leverages technology to further procured and includes testing for suboxone, fentanyl and K2. A newly designed, 8- support public safety and rehabilitation panel oral fluid testing device was also procured as an alternative screen. through a 24/7 electronic monitoring (ELMO) center that monitors and New and Updated GPS Devices and Remote Alcohol responds to offenders being supervised Monitoring Equipment by sophisticated GPS and remote MPS introduced a new generation of GPS and alcohol monitoring devices. The GPS alcohol monitoring devices. units utilize the most comprehensive cellular network available. New remote alcohol equipment monitors alcohol use of probationers when this is a condition of their MPS’s Office of Community probation. SCRAM Remote Breath® identifies probationers using facial recognition Corrections operates 18 centers, software; results are monitored by Probation’s 24/7 ELMO center. The MPS was providing intermediate sanctions and monitoring more than 600 probationers daily on SCRAM, exceeding projected use supervision for higher-risk offenders on levels. probation, parole and correctional pre- release. Offenders receive intensive Enhancing Pre-Trial Services: Pursuing Legislation for Positive Outcomes supervision and access to rehabilitative The Trial Court is pursuing legislation to allow for the pre-trial population to be services such as substance abuse and provided much needed substance abuse, education, and job development services at mental health treatment and job community corrections centers (CCCs). If passed, the bill would allow those on pre- training in one setting. trial probation and those being held awaiting trial to access programming at community corrections centers when appropriate. The current statutory language MPS’s Community Service Program limits the centers to providing services only to those sentenced to probation. deploys an average of 54 crews daily, Expanding the eligibility of those allowed to receive programming and services at to landscape public areas, staff food the centers is expected to improve outcomes for those under probation supervision kitchens and homeless shelters, and and reduce jail costs. assist in trash, snow and ice removal along the highways.

Annual Report on the State of the Massachusetts Court System 31 191 Massachusetts Trial Court 2016 MASSACHUSETTS TRIAL COURTS EXCELLENCE Boston Municipal Court Susan McTigue AWARDS

District Court Ellen Moulton, Joanne Spinelli

Probate and Family Court Nancy Gargiulo 2015 Massachusetts Trial Courts Juvenile Court Julie Hall EXCELLENCE AWARDS Juvenile Court Probation Risk Assessment Team: Kim Banville, Kristen Hurst, Erin Lynch, Cynthia McConville, Juvenile Court Sight and Sound Separation Colleen O’Leary, Todd Rogato, Karen Sullivan, Lonnie Welchman Team

Superior Court Superior Court MassCourts Implementation Carlotta Patten, Mark J. Toomey Committee Facilities Management Patrick Kelly Massachusetts Probation Service Training Academy, Probation Records Unit and Berkshire County Probation Certified Treatment Program Greenfield Probation Staff Development Team Office of Community Corrections: Jeff Boyd, Pat Horne, Kevin Employees of the Boston Municipal, District Kearney, Kim Norton, Kyle Schadler, Teri Trufant and Probate and Family Court Probation: Alf Barbalunga, Clifford Nilan, Francine Ryan, Matthew Stracuzzi, Donald Wright Specially Recognized Trial Court Employees

Domestic Violence and Training Development & Judicial Information Services Implementation of E‐Learning Center District Court: Hon. Marianne Hinkle, Sarah Ellis Court Officer Academy Cadre Human Resources: Linda Rowe

Judicial Institute: Nufynna Callahan, Anna Evans, Donna Grieco, Facilities Management Repair and Victoria Lewis, Brian Peters, Tonichia Tavares Judicial Information Services: Erika Marshall, Mark Prior, Renovation Team Rui Silva, Joseph Sullivan Probation: Patricia Gavin, Diane Richard Security: Heather Brouillette, Maura Garrity

Videoconferencing Deployment Judicial Information Services: Thomas Haskins, Pedro Vargas Facilities Management: Dana Leavitt

Security Teams in Quincy and Lawrence Bellotti Courthouse (Quincy): John Cahill, Paul O’Rourke, Chris Tufo, Jeanmarie Turley Fenton Judicial Center (Lawrence): Michael Britton, Berlis Cuevas, Carlos Morais, Angel Torres, Gregory Meehan

Annual Report on the State of the Massachusetts Court System 32

192 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2016

Chief Justice of the Trial Court Jonathan R. Tynes John A. Canavan Paula M. Carey David Weingarten Don L. Carpenter** Jeanmarie Carroll Court Administrator Clerk Magistrates Martine Carroll Harry Spence Margaret F. Albertson Ellen M. Caulo Joseph R. Faretra Paula J. Clifford Boston Municipal Court Daniel J. Hogan Albert S. Conlon Sean P. Murphy Jacklyn M. Connly Chief Justice Michael W. Neighbors Philip A. Contant Roberto Ronquillo Jr. Anthony S. Owens Mark S. Coven James B. Roche Daniel C. Crane Deputy Court Administrator John E. Whelan Michael C. Creedon Cheryl A. Sibley J. Elizabeth Cremens District Court David W. Cunis Justices Kevan J. Cunningham Michael C. Bolden Chief Justice Andrew M. D'Angelo David J. Breen Paul C. Dawley David P. Despotopulos Catherine K. Byrne Patricia A. Dowling James W. Coffey Deputy Court Administrators Peter F. Doyle Kathleen E. Coffey Philip J. McCue Deborah A. Dunn Michael J. Coyne Ellen S. Shapiro Lisa F. Edmonds Pamela M. Dashiell Thomas H. Estes Debra A. DelVecchio Justices Michael L. Fabbri David T. Donnelly Stephen S. Abany Thomas L. Finigan Mary Ann Driscoll** Michael G. Allard-Madaus Kevin J. Finnerty Kenneth J. Fiandaca Mary L. Amrhein William M. Fitzpatrick Serge Georges Jr. Cesar A. Archilla Ellen Flatley** Lisa Grant Benjamin C. Barnes Gregory C. Flynn Lisa Ann Grant Thomas S. Barrett Maurice R. Flynn Thomas C. Horgan James D. Barretto Stacey J. Fortes Myong J. Joun Julie J. Bernard David E. Frank Thomas Kaplanes Timothy M. Bibaud Kevin J. Gaffney Sally A. Kelly William J. Boyle Timothy H. Gailey** Tracy Lee Lyons Cynthia M. Brackett Robert W. Gardner Jr. Lawrence E. McCormick** Heather M. S. Bradley Jennifer L. Ginsburg John E. McDonald Jr. Lynn C. Brendemuehl Franco J. GoBourne II Paul J. McManus Robert A. Brennan W. Michael Goggins David B. Poole Thomas M. Brennan** Charles W. Groce III Ernest L. Sarason Jr.** Holly V. Broadbent Margaret R. Guzman Debra Shopteese Michael J. Brooks William P. Hadley Eleanor C. Sinnott Robert B. Calagione Arthur F. Haley III Mark Hart Summerville Cathleen E. Campbell Kathryn E. Hand Robert G. Harbour

* Acting , **Recall Annual Report on the State of the Massachusetts Court System 33

193 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2016

District Court

Justices, continued Mary A. Orfanello Therese M. Wright Mary E. Heffernan Daniel J. O'Shea Paul M. Yee Julieann Hernon Stephen S. Ostrach Robert P. Ziemian** Marianne C. Hinkle Michele A. Ouimet-Rooke Michele B. Hogan Dominic J. Paratore Clerk Magistrates Neil A. Hourihan Michael A. Patten Claudia M. Abreau Joseph W. Jennings III John M. Payne Jr. Darren Alston Emogene Johnson Smith Barbara S. Pearson Charles J. Ardito Lee G. Johnson Robert J. Pellegrini Frederick R. Baran* John M. Julian Gregory L. Phillips Thomas F. Bartini Emily A. Karstetter Patricia T. Poehler Marybeth Brady James T. Kirkman Michael J. Pomarole Marion E. Broidrick James L. Lamothe Michael Ripps** Whitney J. Brown Gerald A. Lemire Lynn C. Rooney Kenneth F. Candito D. Dunbar Livingston David S. Ross Thomas C. Carrigan David B. Locke William A. Rota Carol K. Casartello Christopher P. Loconto Patrick S. Sabbs Kenneth H. Chaffee Paul F. Loconto Bernadette L. Sabra Ann T. Colicchio Matthew J. Machera Dennis P. Sargent Margaret Daly Crateau Laurie MacLeod Richard D. Savignano Kevin P. Creedon Andrew L. Mandell** Matthew J. Shea John A. Deluca Edmund C. Mathers Sabita Singh Edward J. Doherty William F. Mazanec III Paul H. Smyth Laurie N. Dornig Mary F. McCabe Roanne Sragow Licht Kathryn Morris Early Paul J. McCallum John P. Stapleton Kevin L. Finnegan Maura K. McCarthy Jennifer A. Stark Elizabeth M. Fitzgerald Paul L. McGill James M. Sullivan John D. Fitzsimmons James J. McGovern Mark A. Sullivan John S. Gay Janet J. McGuiggan Mary H. Sullivan Donald Hart James H. McGuinness** Allen G. Swan** Brian J. Kearney Antoinette E. McLean Leoney Steven E. Thomas John F. Kennedy Toby S. Mooney Michael A. Uhlarik Paul M. Kozikowski Richard A. Mori Bethzaida Sanabria-Vega Brian K. Lawlor Diane E. Moriarty Vito A. Virzi Joseph A. Ligotti Michael E. Mulcahy Michael A. Vitali William A. Lisano Robert S. Murphy Paul M. Vrabel Paul F. Malloy Gilbert J. Nadeau Maureen E. Walsh Patrick J. Malone Matthew J. Nestor Christopher D. Welch Daryl G. Manchester Mark E. Noonan Robert A. Welsh III Keith E. McDonough Kevin J. O'Dea** James H. Wexler Kathleen M. McKeon William J. O'Grady Mary D. White Timothy J. Morey

* Acting , **Recall Annual Report on the State of the Massachusetts Court System 34

194 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2016

District Court

Clerk Magistrates, continued Fairlie A. Dalton Siobhan E. Foley Robert L. Moscow Wilbur P. Edwards Jr. Dana M. Gershengorn Manuel A. Moutinho Dina E. Fein Joseph F. Johnston Kevin G. Murphy Robert G. Fields Mary Beth Keating William P. Nagle Jr. Diana H. Horan Kenneth J. King Thomas J. Noonan David D. Kerman** Rebekah J. Crampton Kamukala** John C. O'Neil MaryLou Muirhead George F. Leary Philip B. O'Toole Maria Theophilis Paul D. Lewis** Salvatore Paterna Jeffrey M. Winik Stephen M. Limon Stephen C. Poitrast Judith A. Locke Maryann Pozzessere Clerk Magistrates Anthony J. Marotta Edward F. Savage Mark R. Jeffries Mary M. McCallum Henry H. Shultz Robert L. Lewis Garrett J. McManus Christopher N. Speranzo Peter Q. Montori Joan M. McMenemy Brian M. St.Onge Nickolas W. Moudios Lawrence Moniz Doris A. Stanziani Susan M. Trippi* Mark Newman Mary Jane Brady Stirgwolt Mary O'Sullivan Smith Mark E. Sturdy Juvenile Court Judith J. Phillips Edward B. Teague Jose Sanchez Peter J. Thomas Chief Justice Carol A. Shaw Arthur H. Tobin Amy L. Nechtem Tracie L. Marciarelli Souza Leonard F. Tomaiolo John S. Spinale Robert A. Tomasone Deputy Court Administrator Daniel J. Swords Robin E. Vaughan James E. Morton Gloria Tan Liza Hanley Williamson James J. Torney Wendy A. Wilton Justices Gwendolyn R. Tyre Charles S. Belsky Kathryn A. White Housing Court Jay D. Blitzman Bettina Borders Clerk Magistrates Chief Justice Helen A. Brown Bryant J. D. Bowie Timothy F. Sullivan Deborah A. Capuano Judith M. Brennan (Effective 10/1/2015) James G. Collins Donna M. Ciampoli Peter Coyne Paul J. Hartnett Steven Pierce Terry M. Craven Roger J. Oliveira* (1/2/2006-9/30/2015) Kerry A. Diamantopoulos Christopher D. Reavey Leslie A. Donahue George P. Roper Deputy Court Administrator Lois M. Eaton Laura Rueli Paul J. Burke Michael F. Edgerton** Robert L. Ryan Jr. Carol A. Erskine Craig D. Smith Justices Margaret S. Fearey** Donald P. Whitney Anne K. Chaplin Patricia A. Flynn

* Acting , **Recall Annual Report on the State of the Massachusetts Court System 35

195 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2016

Land Court Linda S. Fidnick E. J. Herrmann Katherine A. Field Francis B. Marinaro Chief Justice David M. Fuller** Patrick W. McDermott Judith C. Cutler Melanie J. Gargas Matthew J. McDonough Anne M. Geoffrion Tara E. Melo Deputy Court Administrator Geoffrey R. German John F. Merrigan Jill K. Ziter Patricia A. Gorman Pamela Casey O'Brien Barbara M. Hyland Anastasia Welsh Perrino Justices Susan Jacobs Suzanne T. Seguin Robert B. Foster Randy J. Kaplan Keith C. Long Leilah A. Keamy Superior Court Gordon H. Piper Richard J. McMahon Alexander H. Sands III** William F. McSweeny Chief Justice Karyn F. Scheier Denise L. Meagher Judith Fabricant Howard P. Speicher James V. Menno Maureen H. Monks Deputy Court Administrator Recorder Elaine M. Moriarty Elaina M. Quinn Deborah J. Patterson Anthony R. Nesi Lee M. Peterson Justices Probate and Family Court George F. Phelan John A. Agostini Stephen M. Rainaud Mary K. Ames Chief Justice Gregory V. Roach Thomas P. Billings Angela M. Ordoñez Lisa A. Roberts Raymond J. Brassard Abbe L. Ross Heidi E. Brieger Deputy Court Administrator Arthur C. Ryley Kimberly S. Budd Linda M. Medonis David G. Sacks Beverly J. Cannone Mary Anne Sahagian Richard J. Carey Justices Robert A. Scandurra Richard J. Chin Jeffrey A. Abber Frances M. Siciliano Rosemary Connolly Joan P. Armstrong Richard A. Simons Thomas A. Connors Kathryn M. Bailey Peter Smola Robert C. Cosgrove Theresa A. Bisenius Patrick W. Stanton Dennis J. Curran Edward G. Boyle III Jennifer Rivera Ulwick Brian A. Davis John D. Casey Virginia M. Ward Kenneth V. Desmond Jr. Megan H. Christopher Thomas Drechsler Kevin R. Connelly Registers Renee P. Dupuis Beth A. Crawford Felix D. Arroyo Elizabeth M. Fahey David J. Dacyczyn Susan D. Beamish Timothy Q. Feeley Peter C. DiGangi Michael J. Carey John S. Ferrara Edward F. Donnelly Jr. Gina L. DeRossi Kenneth J. Fishman Brian J. Dunn Stephanie K. Fattman Daniel A. Ford

* Acting , **Recall Annual Report on the State of the Massachusetts Court System 36

196 Massachusetts Trial Court Judges and Officials Judicial Assignments as of June 30, 2016

Superior Court

Justices, continued Laurence D. Pierce Shannon Frison David Ricciardone E. Susan Garsh Christine M. Roach Frank M. Gaziano Robert C. Rufo Linda E. Giles Mary-Lou Rup Robert B. Gordon Kenneth W. Salinger S. Jane Haggerty** Janet L. Sanders Bruce R. Henry William F. Sullivan Maureen B. Hogan Constance M. Sweeney Merita A. Hopkins Robert N. Tochka Garry V. Inge Richard T. Tucker Robert J. Kane Kathe M. Tuttman Mitchell H. Kaplan Robert L. Ullmann Hélène Kazanjian Raymond P. Veary Jr. Angel Kelley Brown Joshua I. Wall Janet Kenton-Walker Richard E. Welch III Maynard M. Kirpalani Douglas H. Wilkins Diane M. Kottmyer** Paul D. Wilson Peter B. Krupp Daniel M. Wrenn James F. Lang Raffi N. Yessayan Peter M. Lauriat Edward P. Leibensperger Clerks of Court Joseph F. Leighton Jr. Mary Elizabeth Adams James R. Lemire Deborah S. Capeless Jeffrey A. Locke Robert S. Creedon Jr. David A. Lowy Michael J. Donovan John T. Lu Thomas H. Driscoll Bonnie H. MacLeod Susan K. Emond Mark D. Mason Laura S. Gentile Edward J. McDonough Jr. Maura A. Hennigan Thomas F. McGuire Jr. H. J. Jekanowski Jr. Rosalind H. Miller Dennis P. McManus Cornelius J. Moriarty II Scott Nickerson Richard T. Moses** Marc J. Santos Christopher J. Muse Joseph E. Sollitto Jr. Gary A. Nickerson Michael A. Sullivan Tina S. Page Walter F. Timilty Gregg J. Pasquale

* Acting , **Recall Annual Report on the State of the Massachusetts Court System 37

197 Annual Report on the State of the Massachusetts Court System 38

198

Statistical Appendix

Fiscal Data A‐1 Arraignments by Offense Type A‐2 Case Filings by Type A‐4 Case Filings by Department A‐6 Massachusetts Probation Service Caseload A‐8 Case Flow Metrics A‐9 Case Flow Summary A‐10 Clearance Rate A‐11 Time to Disposition A‐12 Pending Cases Beyond Time Standards A‐13 Trial Date Certainty A‐14

199

200

Trial Court Fiscal Data FY2016 Breakdown of Trial Court Funding Dollar Amount Percent of Total Trial Court Operating Appropriations $631,553,795 97.3% Capital / Bond Funds $12,486,767 1.9% Automation Bond Funds $1,548,637 0.2% Grants, Trusts & Intergovernmental $3,446,089 0.5% Funds TOTAL $649,035,288 100.0%

Trial Court Expenditures from Dollar Amount Percent of Total Operating Accounts

Judicial Salaries $57,911,195 9.2% Court/Admin. Employee Salaries $397,056,715 63.4% Employee Related Expenses $22,089,715 3.5% Case Driven Expenses $17,706,327 2.8% Law Library Expenses $6,367,280 1.0% Office and Court Operations $62,049,919 9.9% Facility Rental, Maintenance and $63,426,005 10.1% Operation TOTAL $626,607,156 100.0%

Total Amount Interdepartmental and Reserve Transferred Between Transfers Accounts Within Department

Central Accounts ($7,776,500) Superior Court Department $790,500 District Court Department $2,425,000 Probate Court Department $925,000 Land Court Department ($30,000) Boston Municipal Court $350,000 Housing Court Department $97,000 Juvenile Court Department ($369,000) Probation Accounts $3,345,000 Jury Commissioner $243,000

201A-1 TrialȱCourtȱArraignments*ȱbyȱOffenseȱandȱOffenseȱType,ȱCY2011ȱtoȱCY2015ȱ

Offense CY2011 CY2012 CY2013 CY2014 CY2015 Total Arraignments 359,510 366,608 356,759 345,266 318,068 Person 88,834 88,129 84,209 82,892 79,510 Murder/Manslaughter 1,119 1,025 988 846 463 Assaults 56,741 55,701 53,199 53,143 52,759 Rape/Sex Assault 6,128 6,495 5,897 6,088 5,036 Robbery 2,961 2,899 2,812 2,433 2,255 Threat/Intimidation 11,877 11,894 11,204 10,880 10,192 Restraining/Harassment Order Violations 7,666 7,828 7,580 7,144 6,498 Other Violent Offense 2,342 2,287 2,529 2,358 2,307 Property 88,834 88,129 84,722 79,898 68,268 Larceny/Fraud 39,384 41,444 40,500 39,320 33,554 Burglary/B&E 12,254 11,499 10,750 8,777 7,589 Destruction of Property 12,607 11,591 10,332 9,900 9,091 202 Receiving/Possession Stolen Property 7,819 8,445 7,755 6,926 5,533 Forgery/Uttering 8,198 7,614 7,670 7,140 5,935 Arson/Burn 275 337 310 266 137 Trespass 5,900 6,013 5,766 6,113 5,501 Other Property Offense 1,929 1,799 1,639 1,456 928 Drug 38,382 42,657 38,917 39,129 36,020 Class A 5,587 7,945 9,304 10,665 10,719 Class B 11,313 12,080 11,157 11,315 10,907 Class C 1,600 1,879 1,939 1,835 1,724 Class D 4,492 4,902 4,390 3,535 2,889 Class E 2,827 3,227 3,039 3,162 2,967 Conspiracy to Violate Drug Laws 3,490 4,022 4,051 3,816 3,045 Possession Hypodermic Needle 5 3 3 7 14 School/Park Violation 5,485 5,017 1,978 1,612 1,252 Other Drug Offense 3,583 3,582 3,056 3,182 2,503

$ TrialȱCourtȱArraignments*ȱbyȱOffenseȱandȱOffenseȱType,ȱCY2011ȱtoȱCY2015ȱ

Offense CY2011 CY2012 CY2013 CY2014 CY2015 Motor Vehicle 94,533 98,437 101,049 100,081 93,153 M.V Homicide 124 106 121 108 93 Driving Under Influence 14,994 16,503 15,596 15,668 14,395 Other Major Motor Vehicle Offense 79,415 81,828 85,332 84,305 78,665 Public Order 49,395 48,643 47,852 43,266 41,117 Disturbing/Disorderly 14,265 14,273 13,495 12,160 10,598 Firearm Offense 9,273 8,616 9,781 8,961 9,507 Prostitution 1,199 1,198 1,218 926 859 Liquor Law Violation 3,871 3,236 2,508 1,839 1,269 Other Public Order Offense 20,787 21,320 20,860 19,380 18,884 *Source: Massachusetts Probation Service. 203

$ FiveȬYearȱSummaryȱofȱTrialȱCourtȱCaseȱFilingsȱbyȱType,ȱFY2012ȱtoȱFY2016ȱ

FY2012 FY2013 FY2014 FY2015 FY2016 All Case Types 1,035,558 999,063 991,708 960,412 912,757 Criminal Matters Criminal 236,217 233,614 233,143 219,740 209,791 Criminal Show Cause Hearings 84,670 78,940 90,963 81,042 94,607 Criminal Warrants 6,572 6,828 8,928 8,158 8,995 Sub-Total 327,459 319,382 333,034 308,940 313,393 Civil - Regular 104,379 90,511 84,767 79,993 74,331 Civil - Specialized Matters Small Claims 101,975 99,726 103,004 106,071 84,579 Supplementary Proceedings 28,387 20,987 16,970 16,679 9,736 Summary Process 41,559 40,871 41,812 40,946 40,140 Restraining Orders 46,141 44,153 42,907 31,155 43,092 Harassment Orders 1,888 1,441 1,467 12,505 1,476 204 Mental Health 12,717 12,534 13,069 13,903 15,541 CMVI Appeals 9,763 12,960 12,862 12,969 14,632 Administrative Warrants 15,729 15,916 10,743 13,395 11,903 Other Specialized Civil 2,115 2,716 3,521 3,611 4,469 Sub-Total 260,274 251,304 246,355 251,234 225,568 CMVI Hearings 151,073 148,264 132,192 130,254 117,565 Other Hearings Show Cause Hearings (Applications) 7,135 9,347 14,206 15,042 14,419 Non-MV Infraction Civil Hearings 4,529 5,475 4,951 5,232 5,869 Sub-Total 11,664 14,822 19,157 20,274 20,288 Juvenile Matters Juvenile Delinquency 17,612 7,800 10,055 10,362 9,694 Youthful Offender 333 84 151 216 218 CRA/CHINS Applications 6,973 5,624 5,843 6,160 5,712 Care & Protection Petitions 2,470 2,669 3,663 3,384 3,855 Sub-Total 27,388 16,177 19,712 20,122 19,479

$ FiveȬYearȱSummaryȱofȱTrialȱCourtȱCaseȱFilingsȱbyȱType,ȱFY2011ȱtoȱFY2016,ȱcontinuedȱ

FY2012 FY2013 FY2014 FY2015 FY2016 All Case Types 1,035,558 999,063 991,708 960,427 912,757 Probate 40,076 47,006 48,593 42,942 39,461 Guardianship 10,897 11,920 11,174 13,229 11,891 Child Welfare and Adoption 2157 2194 2,894 2,621 2,346 Domestic Relations Paternity 20,459 19,101 17,560 16,650 16,010 Divorce 26,313 26,736 24,918 23,954 23,692 Modification/Contempt 51,661 50,191 50,079 49,271 47,958 Other Domestic Relations 759 442 398 00 Sub-Total 99,192 96,470 92,955 89,875 87,660 Appeals 999 1,013 875 928 775 205

$ TrialȱCourtȱCaseȱFilingsȱbyȱDepartmentȱandȱType,ȱFY2016ȱ Probate BMC District Housing Juvenile Land Superior Total & Family All Case Types 84,754 563,428 41,531 37,271 19,546 142,138 24,089 912,757 Criminal Matters Criminal 23,752 179,334 1,254 419 5,032 209,791 Criminal Show Cause Hearings 16,611 74,924 3,072 94,607 Criminal Warrants 1,340 7,655 8,995 Sub-Total 41,703 261,913 4,326 419 5,032 313,393 Civil - Regular 4,716 29,618 4,893 16,629 18,475 74,331 Civil - Specialized Matters Small Claims 8,328 74,986 1,265 84,579 Supplementary Proceedings 941 8,705 90 9,736 Summary Process 859 11,794 27,487 40,140 Restraining Orders 3,414 36,654 3,024 43,092

206 Harassment Orders 945 531 1,476 Mental Health 1,378 14,028 135 15,541 CMVI Appeals 2,064 12,568 14,632 Administrative Warrants 3,308 7,464 1,131 11,903 Other Specialized Civil 593 879 80 2,917 4,469 Sub-Total 21,830 167,078 29,973 746 2,917 3,024 225,568 CMVI Hearings 16,500 101,065 117,565 Other Hearings Show Cause Hearings (Applications) 14,419 14,419 Non-MV Infraction Civil Hearings 3,530 2,339 5,869 Sub-Total 3,530 2,339 14,419 20,288 Juvenile Matters Juvenile Delinquency 36 9,658 9,694 Youthful Offender 218 218 CRA/CHINS Applications 5,712 5,712 Care & Protection Petitions 3,855 3,855 Sub-Total 36 19,443 19,479

$ TrialȱCourtȱCaseȱFilingsȱbyȱDepartmentȱandȱType,ȱFY2016,ȱcontinuedȱ

Probate BMC District Housing Juvenile Land Superior Total & Family All Case Types 84,754 563,428 41,531 37,271 19,546 142,138 24,089 912,757 Probate 15 39,446 39,461 Guardianship 782 11,109 11,891 Child Welfare and Adoption 1,087 1,259 2,346 Domestic Relations Paternity 360 15,650 16,010 Divorce 23,692 23,692 Modification/Contempt 47,958 47,958 Other Domestic Relations Sub-Total 360 87,300 87,660 Appeals 5 188 582 775 207

Notes: 1. Probate & Family: Probate cases include, Probate Estates, Equity, and Change of Name. 2. Child Welfare and Adoption includes: Child Welfare cases in the Probate and Family Court and Adoption cases in the Juvenile Court. 3. Only the Boston Municipal and Juvenile Court Departments separate out Harassment Orders from Restraining Orders. 4. Case filings do not include Probation Violation Hearings.

$ MassachusettsȱProbationȱServiceȱ FiscalȱYearȱ2016ȱYearȬEndȱProbationȱCaseloadȱ SupervisionȱCaseloadȱasȱofȱJuneȱ2016ȱ ȱ Boston District Juvenile Probate & Superior Total Supervision Type Municipal Court Court Family Court Court Supervision Court

Administrative Supervision Cases 2,594 21,784 1,005 961 18,549 Care and Protection (Petitions) 4,208 11,159 Children Requiring Assistance Cases 3,250 10,561 Community Correction Cases 37 559 48 26,344

208 Dispute Intervention Mediations 2,510 644 Driving Under the Influence Cases 463 10,098 5,441 From and After Cases 242 1,207 3,992 3,250 Pre-Trial Supervision Cases 1,425 7,726 767 1,241 4,208 Risk Need Supervision Cases 1,383 10,393 864 5,909 2,510 Seek Work Supervision Cases 123 123 Total Supervision 6,144 51,767 10,094 2,633 12,151 82,789

$ CaseȱFlowȱMetricsȱ

The Trial Court looked to the work of the National Center for State Courts (NCSC) in the development of performance metrics for Massachusetts. In 2005 the NCSC developed CourTools, a streamlined set of ten trial court performance measures. Four CourTools measures developed by NCSC focus on timeliness and expedition: clearance rate, time to disposition, age of pending caseload, and trial date certainty. In 2006, the Trial Court adopted these four CourTools measures as a common set of metrics for all seven court departments.

Clearance Rate Purpose The number of outgoing Clearance rate measures whether the court is keeping up with its incoming caseload. If cases cases as a percentage of are not disposed of in a timely manner, a backlog of cases awaiting disposition will grow. This the number of incoming performance measure is a single number that can be compared within the court for any and all cases. case types, on a monthly or yearly basis, or between one court and another. Knowledge of clearance rates by case type can help a court pinpoint emerging problems and indicate where improvements can be made.

209 Time to Disposition Purpose The percentage of cases This measure, used in conjunction with Clearance Rates and Age of Active Pending Caseload, disposed or resolved is a fundamental management tool that assesses the length of time it takes a court to process within established time cases. It measures a court’s ability to meet prescribed time standards. frames.

Age of Pending Cases Purpose The number of pending Knowing the age of the active cases pending before the court is most useful for addressing cases that are beyond the three related questions: Does a backlog exist? Which cases are a problem? Given past and disposition date set by the present performance, what is expected in the future? time standards.

Trial Date Certainty Purpose The number of times A court's ability to hold trials on the first date they are scheduled to be heard (trial date cases disposed by trial are certainty) is closely associated with timely case disposition. This measure provides a tool to scheduled for trial. evaluate the effectiveness of calendaring and continuance practices. For this measure, “trials” includes jury trials, bench trials (also known as nonjury trials), and adjudicatory hearings in juvenile cases.

$ CaseȱFlowȱMetrics*ȱbyȱTrialȱCourtȱDepartment,ȱFY2016ȱ

Number of Cases % Trials Disposed %Disposed w/i Trial Court Department Clearance Rate Pending Beyond by Second Trial Time Standards Time Standards Date Boston Municipal Court 104.8% 91.2% 1,140 74.9%

Civil 104.8% 93.8% 402 83.4% Criminal 104.8% 87.4% 738 71.9% District Court 100.0% 91.3% 12,365 70.7%

Civil 98.1% 97.0% 6,047 59.4% Criminal 100.8% 88.7% 6,318 71.4% 210 Housing Court 100.1% 90.9% 1,027 82.6% Juvenile Court 96.5% 61.2% 4,429 Civil 96.5% 61.1% 4,346 Criminal 96.0% 61.5% 83 Land Court 88.6% 58.6% 10,521 100.0% Probate & Family Court 92.6% 78.2% 54,339 97.3% Superior Court 85.1% 70.3% 7,163 48.2%

Civil 89.4% 76.0% 5,194 59.7% Criminal 69.0% 39.2% 1,969 40.8% All Departments 98.1% 87.0% 90,984 70.7%

*The metrics analyses does not include all case filings.

$ ClearanceȱRate*ȱbyȱTrialȱCourtȱDepartment,ȱFY2012ȱtoȱFY2016ȱ FY2012 FY2013 FY2014 FY2015 FY2016 Trial Court Department New Disposed Clearance Clearance Rate Cases Cases Rate Boston Municipal Court 101.9% 95.8% 97.7% 101.5% 45,373 47,566 104.8% Civil 104.7% 96.6% 100.1% 99.9% 26,555 27,837 104.8% Criminal 98.5% 94.8% 94.5% 103.3% 18,818 19,729 104.8% District Court 93.5% 94.4% 101.0% 100.9% 253,347 253,188 100.0% Civil 94.0% 93.1% 106.8% 103.7% 81,078 79,538 98.1% Criminal 93.2% 95.0% 98.3% 99.6% 172,269 173,650 100.8%

211 Housing Court 96.7% 100.7% 98.9% 101.5% 41,531 41,567 100.1% Juvenile Court** 92.3% 37,095 35,789 96.5% Civil 98.9% 36,675 35,386 96.5% Criminal 87.8% 420 403 96.0% Land Court 88.0% 116.7% 92.1% 205.4% 16,624 14,731 88.6% Probate & Family Court 87.3% 86.3% 94.6% 91.4% 59,925 55,512 92.6% Superior Court*** 100.6% 103.2% 100.3% 79.7% 23,350 19,878 85.1% Civil 102.2% 103.5% 100.5% 82.6% 18,425 16,479 89.4% Criminal 93.9% 101.4% 99.4% 69.5% 4,925 3,399 69.0% All Departments 94.0% 95.2% 99.8% 101.8% 477,245 468,231 98.1%

* The metrics analyses does not include all case filings. ** Due to the conversion to a new case management system, aggregate statistics could not be produced for FY13-FY15. *** Figures for the Superior Court do not include Appeals.

$ TimeȱtoȱDisposition*ȱbyȱTrialȱCourtȱDepartment,ȱFY2012ȱtoȱFY2016ȱ FY2012 FY2013 FY2014 FY2015 FY2016 Disposed Cases % Within Trial Court Department Within Time Beyond Time Total Time % Disposed Within Time Standards Standards Standards Standards Boston Municipal Court 95.8% 95.3% 93.8% 90.4% 47,566 43,374 4,192 91.2% Civil 97.5% 97.0% 97.2% 93.5% 27,837 26,123 1,714 93.8% Criminal 93.2% 93.0% 89.3% 85.9% 19,729 17,251 2,478 87.4% District Court 93.8% 93.0% 91.2% 87.7% 250,424 228,645 21,779 91.3% Civil 97.7% 97.2% 96.0% 87.7% 79,555 77,168 2,387 97.0% Criminal 91.6% 90.6% 88.9% 87.8% 170,869 151,477 19,392 88.7% Housing Court 90.8% 89.9% 89.4% 90.5% 41,567 37,774 3,793 90.9% Juvenile Court** 72.4% 73.4% 21,285 13,016 8,269 61.2% 212 Civil 77.8% 79.0% 20,882 12,768 8,114 61.1% Criminal 68.8%69.0% 403 248 155 61.5% Land Court 58.8% 59.9% 64.3% 54.9% 3,121 1,830 1,291 58.6% Probate & Family Court 83.3% 83.0% 81.1% 81.5% 55,512 43,438 12,074 78.2% Superior Court*** 67.3% 67.8% 66.6% 66.8% 19,437 13,672 5,765 70.3% Civil 74.1% 74.3% 73.6% 74.1% 16,437 12,495 3,942 76.0% Criminal 35.9% 35.6% 31.9% 33.4% 3,000 1,177 1,823 39.2% All Departments 89.7% 89.1% 88.4% 86.3% 438,912 381,749 57,163 87.0% * The metrics analyses does not include all case filings. ** Due to the conversion to a new case management system, aggregate statistics could not be produced for FY14-FY15. *** Figures for the Superior Court do not include Appeals.

$ NumberȱofȱPendingȱCases*ȱBeyondȱtheȱTimeȱStandardsȱbyȱTrialȱCourtȱDepartmentȱ FY2012ȱtoȱFY2016ȱ FY2012 FY2013 FY2014 FY2015 FY2016 FY2015 to FY2016 Trial Court Department Year-End Year-End Year-End Year-End Year-End Difference Boston Municipal Court 825 1,186 1,849 1,681 1,140 -32.2% Civil 188 245 707 469 402 -14.3% Criminal 637 941 1,142 1,212 738 -39.1% District Court 16,772 23,950 10,536 9,284 12,365 33.2% Civil 9,603 15,372 3,560 2,958 6,047 104.4% Criminal 7,169 8,578 6,976 6,326 6,318 -0.1% Housing Court 2,434 2,647 2,935 1,313 1,027 -21.8% Juvenile Court** 7,557 4,429 Civil 3,863 4,346 213 Criminal 3,694 83 Land Court 10,397 10,314 10,252 10,378 10,521 1.4% Probate & Family Court 21,652 28,876 37,912 47,956 54,339 13.3% Superior Court*** 8,234 7,840 7,150 5,961 7,163 20.2% Civil 5,753 5,186 4,605 3,401 5,194 52.7% Criminal 2,481 2,654 2,545 2,560 1,969 -23.1% All Departments 67,871 74,813 70,634 76,573 90,984 18.8% * The metrics analyses does not include all case filings. ** Due to the conversion to a new case management system, aggregate statistics could not be produced for FY13-FY15. ***Figures for the Superior Court do not include Appeals. The number of cases pending beyond the time standards at the end of 2010 was adjusted to reflect the increase in the number of District Court civil cases captured for analysis due to improved reporting of case status due to expanded Trial Court automation, and to reflect the disposal of a large number of Probate and Family Court cases that had gone without activity for at least 24 months.

$ TrialȱDateȱCertainty*ȱbyȱTrialȱCourtȱDepartmentȘȘ,ȱFY2012ȱtoȱFY2016ȱ

% Trials Disposed By Second Trial Date Trial Court Department FY2012 FY2013 FY2014 FY2015 FY2016 Boston Municipal Court 83.7% 83.4% 79.0% 81.8% 74.9%

Civil 78.7% 82.4% 80.0% 82.9% 83.4% Criminal 84.9% 83.7% 78.7% 81.5% 71.9% District Court 65.1% 68.3% 69.8% 71.6% 70.7%

Civil 73.6% 68.1% 64.2% 66.5% 59.4% Criminal 64.5% 68.3% 70.1% 71.8% 71.4% Housing Court 82.8% 81.4% 81.3% 82.2% 82.6% 214 Land Court 93.9% 93.8% 96.0% 86.1% 100.0% Probate & Family Court 97.4% 98.0% 98.6% 98.2% 97.3% Superior Court*** 63.1% 66.1% 66.9% 75.1% 48.2%

Civil 63.6% 70.2% 72.9% 75.4% 59.7% Criminal 62.6% 61.5% 60.9% 74.6% 40.8% All Departments 73.2% 74.1% 74.6% 73.0% 70.7% * The metrics analyses does not include all case filings. ** Due to the conversion to a new case management system, aggregate statistics could not be produced for the Juvenile Court Department. *** Figures for the Superior Court do not include Appeals.

A-15215 Public Information Office ANNUAL REPORT ON THE STATE OF THE John Adams Courthouse, Suite 1100 One Pemberton Square MASSACHUSETTS COUR Boston, MA 02108-1724 Phone: (617)557-1114

FY2016 http://www.mass.gov/courts

216

Annual Address: State of the Judiciary

October 26, 2017

Great Hall, John Adams Courthouse Boston, Massachusetts

Remarks by

Ralph D. Gants Chief Justice of the Supreme Judicial Court

217

Each year, as I stand before you to reflect on what we have accomplished and what we

hope to achieve, it is appropriate to begin by expressing my thanks to the men and women whose

hard work and dedication to the rule of law and the provision of justice with dignity and speed

sustain the Commonwealth's courts: judges and justices, clerks, court officers, probation

officers, court facilities employees, and administrative staff. We accomplish nothing worthwhile

without you.

I also give thanks every day for the leadership of Chief Justice Paula Carey, Court

Administrator Jon Williams, and the chief justices and deputy court administrators of our seven

Trial Court departments; and for the fellowship of our appellate justices. I am grateful for the

close collaboration we in the judiciary have enjoyed with the leadership of the Massachusetts Bar

Association, most recently with President Chris Sullivan and Chief Operating Officer and Chief

Legal Counsel Marty Healy; with the leadership of the Boston Bar Association, most recently

with President Mark Smith and Executive Director Rich Page; and with the leaders of the other

regional and affinity bar associations. I appreciate the countless contributions of the private bar to making our justice system function more fairly and effectively, whether through pro bono

work, committee service, or public advocacy. I recognize how fortunate we are to have legal

services attorneys, prosecutors, assistant attorneys general, and CPCS attorneys who do so much

important legal work for so little pay. And I am immensely thankful for the support of our

friends and partners in the Legislature -- most prominently, Speaker DeLeo, Senate President

Rosenberg, Ways and Means Chairs Sánchez and Spilka, and Judiciary Chairs Cronin and

Brownsberger -- and in the Executive branch -- most prominently, Governor Baker, Lieutenant

218 Governor Polito, and Chief Legal Counsel Lon Povich. I speak to Chief Justices throughout the country, so I appreciate what a great blessing it is to have legislators and a governor who understand what we do in our courts, who share our commitment to solving the problems that bring people to court, who are willing to listen and to be guided by the facts, and who work with us in the spirit of collaboration, collegiality, and mutual respect to further the cause of fair and equal justice.

I have served in the Massachusetts judiciary for nearly a generation and, with the 325th anniversary of the SJC approaching next month, I am mindful that we stand on the shoulders of the fine judges, clerks, and staff who have served before us; each generation bestows its legacy on the next. But I think it fair to say that our judiciary today has never been more thoughtful, more willing to explore better ways to do things we have always done, and more focused on addressing the problems that plague our Commonwealth, including opiate use disorder, youth violence, mental health issues, homelessness, child neglect, and intimate partner abuse. I am proud of what we have already accomplished, but I know that we have the talent, will, and commitment to do even more in the future. So let me now take stock of where we stand, what we have done, and what we still need to do.

You may remember that last year I spoke about the reasons for expanding the Housing

Court to every corner of the Commonwealth. On July 1, thanks to the leadership of Speaker

DeLeo, Senate President Rosenberg, Senator Spilka, and Representative Walsh, the benefits of a

Housing Court were brought to every resident of Massachusetts. It is no easy task to implement this major expansion in just a matter of months. Chief Justice Tim Sullivan, Deputy Court

Administrator Paul Burke, and the remarkable judges, housing specialists, clerks, and staff of the

Housing Court simply make it look easy. I thank them for their extraordinary efforts.

219 We currently have 26 drug courts, three juvenile drug courts, and one family drug court;

seven mental health courts; five veterans treatment courts; two homeless courts; and a family

resolutions specialty court. Unlike the Housing Court, these courts are not separate departments,

but specialized sessions within existing Trial Court departments. Still, it takes additional funding

to support them and, in particular, to pay for the clinicians and probation officers who staff them.

I hope that in the future we will be able to continue to expand these specialty courts so that, as is now true of our Housing Court, they will be available to all who need them, wherever they live

in the Commonwealth -- especially our drug courts, which are so desperately needed at a time

when we are losing more than five people every day to opioid overdoses.1

The Governor declared last Thursday to be Conflict Resolution Day, and I appreciate his

recognition of the day as part of Conflict Resolution Week. That same Thursday, at a wonderful

event in this building sponsored by the MBA Dispute Resolution Section, I declared -- albeit

without the fanfare of a formal written proclamation -- that every day in our courts is conflict

resolution day, because that is what we do each and every day in all of our civil courts. At that

event, it was noted that modern alternative dispute resolution began in Massachusetts in the

1970s, with our Trial Court's embrace of Professor Frank Sander’s concept of a Multi-Door

Courthouse. Professor Sander coined the phrase "Let the forum fit the fuss," and I know of no

better description of what we are trying to accomplish in our courts to resolve conflicts more

fairly, more efficiently, and more amicably. No longer does one size fit all; the Land Court,

Probate and Family Court, and Superior Court have all developed a menu of litigation options that allow parties to resolve their conflicts in a manner that best fits their particular case. The challenge now is to get attorneys and litigants to make use of those options. I am grateful to the bar for all the pro bono hours you have devoted to help resolve the conflicts that come to our

220 courts through mediation, conciliation, arbitration, and case assessment, especially in our Probate

and Family Courts; you touch so many lives when you do so. And our District Court and Boston

Municipal Court have created specialized civil sessions to ensure that civil cases in these courts

get the time and attention they deserve, so that they can be resolved in a cost-effective manner

appropriate to the amount of money at issue. We will be closely monitoring the success of these

specialized civil sessions and will be conferring with the bar before any decision is made to

increase the procedural limit in the District Court and BMC from $25,000 to $50,000.

We cannot discuss the challenge of making the provision of justice more efficient without

also discussing our need to get up to date in our use of information technology. We are working

toward becoming a court system where nearly all filing is e-filing; where attorneys and self-

represented litigants receive electronic or text reminders of court dates; where the court file is

digitally available to the judge and to all parties in a case; where judges can quickly access every

document in a case, whether they are on the bench, in a lobby conference, or at their desk writing

an opinion; and where judicial orders and opinions are transmitted immediately and

electronically. We are making progress toward this goal. In the Appeals Court, approximately

85% of criminal briefs and 65% of civil briefs are now filed electronically, and as a result, most

Appeals Court justices spend far more time reading briefs on their iPads than on paper. In the

SJC, 85% of applications for direct and further appellate review are now filed electronically.

And e-filing and other digital projects are now proceeding apace in the Trial Court, as you will hear from Jon Williams. In fact, the Land Court is even working with the Registers of Deeds

Association and the Secretary of State to initiate a pilot program that would permit the e-filing of documents for registered land.

221 We need to make better use of video conferencing, whether through Skype on a computer

or FaceTime on a smartphone, or sometimes simply with conference calls, to reduce the number

of times that attorneys and parties need to appear in court. Thanks to the Legislature, we now

have video conferencing capabilities in every courthouse and on every Trial Court judge's laptop.

We now conduct close to four thousand video events each quarter, and the number is growing

daily. We also need to explore whether in some cases, most likely small claims and civil motor vehicle infractions, we can reach a fair resolution without ever asking the litigants physically to come to court. Not every matter and not every motion justifies the time, cost, and burden of traveling to court. And when people do need to come to court, we must be more respectful of their time through staggered scheduling to avoid long waits. If lawyers cannot resolve court matters efficiently, then even fewer litigants will be able to afford lawyers.

Last spring, the Juvenile Court, Superior Court, District Court, and BMC adopted best

practices in sentencing intended to ensure that each defendant receives an individualized

sentence that takes into account the gravity and circumstances of the crime, the impact on the

victim and the victim’s needs, and the defendant’s criminal history and treatment needs. Two

fundamental principles emerge from these best practices. The first is a variation on the

Hippocratic oath taken by every physician: not "do no harm," because every just sentence

inevitably harms the defendant and his or her family, but do no needless harm -- that is, do not

impose a sentence longer than justice requires. The second principle is that, in imposing

conditions of probation, less is more: a judge should identify which conditions are necessary to

reduce the defendant's risk of committing new crimes, and impose only those, because needless

conditions simply increase the burdens of probation and the risk of probation revocation without

having any beneficial effect on public safety.

222 Our focus on the importance of individualized sentencing decisions inevitably focuses

attention on the statutes that are the greatest impediment to sentences that fit the crime and the

offender: mandatory minimum sentences. In a prior State of the Judiciary address, a very wise

Chief Justice of the SJC said, "I opposed then and continue to oppose a system of mandatory

sentencing totally eliminating judicial discretion to consider mitigating and aggravating

circumstances." That wise Chief Justice was not me (the reference to "wise" should have made

that clear); it was Chief Justice Edward Hennessey in his State of the Judiciary address in 1980.2

A few months ago, the esteemed attorneys and judges of the American Law Institute joined Chief Justice Hennessey's call for an end to mandatory minimum sentences when the ALI adopted a new Model Penal Code of Sentencing at its annual meeting in May. Every time a judge imposes a sentence higher than the judge thinks just because of a mandatory minimum sentence or, more likely, because of a plea to an agreed-upon disposition chosen by the prosecutor as the price for dropping the mandatory minimum charge, the principle of "do no needless harm" is violated. School zone mandatory minimums in drug cases are the most random of the mandatory minimums, because they depend solely on the proximity of the defendant to a school or park at the time of arrest, regardless of whether the defendant had any intention of selling to anyone on or near school or park grounds. I am sure that Chief Justice

Hennessey would be grateful that the Legislature this year is taking a hard look at the wisdom of mandatory minimum sentences.

As for the broader debate regarding criminal justice reform that is now underway in the

Legislature, I can keep my remarks brief because so much has been said so well by the bar associations. Last spring the MBA's Criminal Justice Reform Working Group issued a report

223 that, among other topics, clearly and carefully articulates the importance of considering defendants' ability to pay in setting bail and in assessing criminal fines and fees, or in authorizing their waiver. Last month, the Boston Bar Association Criminal Justice Reform Working Group issued its report, "No Time to Wait: Recommendations for a Fair and Effective Criminal Justice

System." This 74-page report, clearly written, thoroughly researched, and carefully considered, comprehensively describes the urgent need for reform. These reports should be required reading for anyone considering the question of criminal justice reform in Massachusetts.

I will focus on the fundamental takeaway from the research conducted by the Council of

State Governments: effective criminal justice reform will reduce the crime rate, not increase it.

According to CSG, 48% of those released from houses of correction and 38% of those released from state prison in Massachusetts were reconvicted within three years of their release.3 The lesson learned from CSG is that, if we can reduce this rate of recidivism, we can reduce the rate of crime. And we can reduce this rate of recidivism by providing drug treatment, mental health treatment, and cognitive behavioral therapy to those who presently cannot get this treatment in our prisons and houses of correction. We can reduce this rate of recidivism by giving defendants reasonable incentives to seek such treatment, such as earned good time and parole. We can reduce the rate of recidivism by reducing the degree to which a criminal conviction makes it harder to keep a driver's license, or get a job, or obtain further education, or find stable housing.

We can reduce the rate of recidivism by diminishing the financial burden of fees and fines that sit like an albatross on the shoulders of those struggling to make a living and pay child support, and by allowing our probation officers to focus on rehabilitation rather than bill collection. We can reduce the rate of recidivism by taking the high risk 18-24 year old adults, whose recidivism rate is the highest of any age cohort,4 and enrolling them in post-release programs with a

224 demonstrated rate of success, as Chief Justice Carey will discuss. If we take these steps, then we can finally make a dent in that persistent recidivism rate and reduce the overall crime rate. But if we continue to allow many defendants to leave our prisons and houses of correction with untreated drug and mental health problems, with no job training or job experience, and then continue to place obstacles in their way when they try to find lawful employment, we can be sure that they will still find work; it might just not be the work we want them to find. Because, as one formerly incarcerated defendant noted at a recent MassINC forum, "The streets are always hiring."5

We have all heard the objections:

"We will be releasing violent criminals and drug dealers." But they will inevitably be released; we cannot lock them up forever, nor can we afford to. The question most relevant to crime reduction is what will they do when they return to the street? And if convicted criminals have earned early release by doing everything we want them to do behind bars, why would we not reward that behavior by giving them earned good time and the possibility of release on parole?

"We are 49th among the states in our rate of incarceration; we've gone as far as we can safely go." But we incarcerate four times as many people today as we did 40 years ago, at a time when our crime rate was about the same.6 And our focus is less on reducing the length of sentences than it is on reducing needlessly long sentences and, once sentenced, on giving prisoners the opportunity to shorten their sentence if they do the things we want them to do while incarcerated to improve their likelihood of success when they get out.

But civil and criminal justice reform are not our only challenges; there are at least two others we are actively engaged in confronting. The first involves the daily challenges confronted by judges in our Probate and Family Court. The judges in our Probate and Family Court are deeply committed to helping families in need address the complex problems that bring them to court. And, under the leadership of its Chief Justices, Paula Carey and now Angela Ordoñez, the

Probate and Family Court has been wonderfully inventive in finding ways to leverage our scarce

225 judicial resources to do its work: limited assistance representation began in the Probate and

Family Court; the court was the first to use the volunteer attorneys in retired Judge Edward

Ginsburg's terrific program, Senior Partners for Justice, to provide pro bono legal assistance; and no court has been more aggressive in developing mediation and conciliation programs. But yet, the work load continues to be overwhelming. As a result, Probate and Family Court judges are retiring before age 70 at the highest rate of all our Trial Court departments, and younger judges are running at a pace they cannot reasonably sustain.

When you think about it, it is not hard to see why this is happening. The judges charged with resolving Family Court disputes -- alimony, property division, child custody, and guardianship -- must understand not only a single transaction or event, but each family's entire history, including the relationship between the spouses, their abilities as parents, and the needs of their children or, in some guardianship cases, the needs of an elderly parent or a drug-addicted adult child. The judges must also determine each family's income, assets, and potential financial resources, including their capacity to earn. And in the vast majority of cases, they need to figure out all these issues when at least one party is without the assistance of counsel. In no other court do we have so many self-represented parties being asked to litigate disputes as complex, as emotional, as enduring, and as life-changing, as in the Probate and Family Court. The challenge of proceeding without the benefit of counsel is illustrated by the routine questions a clerk will ask a spouse seeking a divorce: "Where are the Rule 401 Financial Statements? Do you have a signed written Separation Agreement? Have you prepared a written parenting plan and used the child support guidelines to determine child support? Have you taken the mandatory parenting course?" Add to this challenge the substantial burden of issuing written decisions in every divorce case, where they are required to address numerous statutory factors,7 all with a shortage

226 of law clerk help due to budget cuts. And even after the judge issues a decision, the litigation rarely ends, because the parties frequently return seeking modifications based on changes in circumstances, and the cycle starts all over again. The burdens we place on our Probate and

Family Court judges are simply not sustainable; we need to reimagine how we do justice in our

Probate and Family Court.

And we are in the process of doing so. Chief Justice Carey and Chief Justice Ordoñez

have already begun that process, and they have each been immersed in the work of this court for

more than thirty years. And I, with the support of Chief Justices Carey and Ordoñez, have done

what I have always done as a Justice of the SJC when I have faced a problem too difficult for me

to resolve: I have asked Justice Margot Botsford for help. Justice Botsford will offer the Chief

Justices the fresh perspective of an informed outsider, and I am deeply grateful that she has

agreed to do so in her supposed retirement, pro bono. She is already hard at work speaking with

judges, probation officers, staff, and attorneys, and she will work with Chief Justice Carey, Chief

Justice Ordoñez, and others in an attempt to reimagine the delivery of justice to make it less

burdensome for judges and more effective for litigants. I do not know how this journey will end,

but I am confident, knowing the extraordinary talent of those making this journey, that by next

fall we will be well underway in rethinking how we do justice in the Probate and Family Court.

The second challenge we face is the shortage of available attorneys to represent parents

and children in care and protection cases when the Department of Children and Families has

removed a child from parental custody. The number of these care and protection cases jumped

by 45% from Fiscal Year 2013 to Fiscal Year 2016. As a matter of statute, the parents and child

are entitled to an evidentiary hearing within 72 hours of the removal of custody to determine

whether DCF's temporary custody of the child will continue until the matter is finally resolved,

227 and each parent and child is entitled, if he or she is indigent, to individualized representation by an attorney at that hearing.8 The judges of the Juvenile Court stand ready to hear these cases and protect the rights of children and families, but too often we lack the attorneys needed to proceed with the 72-hour hearing within the required 72 hours; in Hampden County, since March of this year, approximately half of these 72-hour hearings have had to be continued because we could not find attorneys to represent all the necessary parties; and other counties are facing similar difficulties in finding counsel to take these cases, albeit not to the same extent as Hampden

County. As a result, parents and children are being denied their statutory right to a timely adversarial evidentiary hearing regarding a matter that affects a vital liberty interest -- a parent’s right to retain custody of his or her child. I created a committee last fall, led by former Chief

Justice Roderick Ireland and Chief Justice Carey, that brought together the leadership of CPCS, the Juvenile Court, and DCF, as well as legislative leaders, in an effort to address this problem, and they have worked diligently to attempt to encourage more attorneys to be trained and willing to perform this important work. But the problem so far has eluded resolution, and may even be growing worse. It is time to recognize this for what it is -- a constitutional emergency; we simply cannot continue to allow so many parents and children to be denied their right to a timely

72-hour hearing. We need CPCS and the bar to find new ways to encourage and train more attorneys to do this work, especially in Western Massachusetts. We need our law schools to provide courses and clinical training in family law, and to encourage law students to take advantage of these opportunities so that they are ready, once they pass the bar, to take on this work. And, although I recognize the fiscal challenges we face, I ask the Legislature to consider increasing the hourly rate for CPCS bar advocates who represent parents and children in family law cases from $55 to $80 so that more attorneys can afford to do this work.

228 I have covered many different topics this afternoon, but there is one overriding theme that

unites them all: our ongoing effort as a court system to rethink how to make the legal process

fairer, more efficient, and more effective in solving the problems of the people who come before

us. "Human progress is neither automatic nor inevitable," Dr. Martin Luther King once

said. "Every step toward the goal of justice requires . . . the tireless exertions and passionate concern of dedicated individuals."9 If we are willing to focus less on how we have always done

our work, and more on how we can best provide justice and lighten the burdens of those who come to our courts, if we are willing to listen, to learn, to collaborate, to innovate, to evaluate, and to adapt, we can make the highest and best use of the many tireless, passionate, and dedicated individuals in our judiciary who are so committed to serving the people of this

Commonwealth.

I now yield the podium to two of those tireless, passionate, and dedicated individuals, first, Chief Justice Paula Carey, and then Court Administrator Jon Williams.

229

1 Data Brief: Opioid1-Related Overdose Deaths Among Massachusetts Residents, Massachusetts Department of Public Health, August 2017, https://www.mass.gov/files/documents/2017/08/31/data-brief-overdose-deaths-aug- 2017.pdf.

2 Hon. Edward F. Hennessey, The State of the Judiciary, 65 Mass. L. Rev. 104, 109 (May-June 1980).

3 Justice Reinvestment in Massachusetts: Third Presentation, Council of State Governments Justice Center (July 12, 2016) at 24, https://csgjusticecenter.org/jr/massachusetts/publications/justice-reinvestment-in- massachusetts-third-presentation/.

4 Id. at 30.

5 Adrian Walker, The formerly incarcerated still struggle to find work, Boston Globe, Mar. 22, 2017, at https://www.bostonglobe.com/metro/2017/03/21/years-after-criminal-justice-reform-formerly-incarcerated-struggle- find-work/0UkQxfESAv7zGgnNO8TtuL/story.html.

6 No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System, Boston Bar Association Criminal Justice Reform Working Group, September 2017, at 2.

7 See G. L. c. 208, § 53.

8 See G. L. c. 119, §§ 24, 29.

9 Martin Luther King, Address at the Thirty-fourth Annual Convention of the National Bar Association, August 20, 1959, Milwaukee, WI, https://kinginstitute.stanford.edu/king-papers/documents/address-thirty-fourth-annual- convention-national-bar-association.

230 Chief Justice Paula M. Carey State of the Judiciary October 26, 2017

Good afternoon and welcome to the 2017 State of the Judiciary.

When I contemplate preparing remarks for an event like today, I always think about the Trial Court’s mission: "one mission: justice with dignity and speed." My focus today is on the justice and dignity, piece of what we do, collectively, as one Trial Court consisting of seven trial court departments, probation, security, facilities management, the office of court management and the executive office. In light of the national and local environment, I’d like to highlight the relation of this mission to our efforts on race, gender and implicit bias, cultural competency, poverty and criminal justice reform.

We come to our work as persons of all shapes, sizes and ethnicities. This year, thanks to an amazing initiative conceived by our Probation Department, we just celebrated the strength of our differences with our first Cultural Appreciation Day.

The Probation Department launched this effort under the leadership of Commissioner Ed Dolan who was greatly assisted in this event by Deputy Commissioner Lydia Todd, Regional Supervisor Pamerson Ifill, who by the way is a rock star, and the many Cultural Proficiency Champions in the Massachusetts Probation Service. They conceived of this Day and found ways to engage judges, clerks and employees in celebrations in over 80 court locations in Massachusetts.

A number of wonderful events were held across the state. Many centered on food, with people coming together to sample ethnic specialties prepared by and shared with colleagues and the public. Locally, at the Brooke Courthouse there was a book talk led by Probation Officer Rhonda Greene highlighting some of the insights she gleaned from the book, Hillbilly Elegy. She discussed how some of the concepts explored in the book could provide insight for Probation Officers’ work with probationers. Delicious dishes had been prepared with recipes from various homelands. At the Suffolk Superior Court a display of children’s artwork depicted

231 their pride of the United States and their ethnicity. That celebration also included poetry readings, Celtic step dancers, an African attire fashion show, as well as, a concert by the Boston Latin Choir. We had judges dancing in front of courthouses…what better way to celebrate what our courthouses are to the community than to have judges embracing local culture.

These events were a wonderful way to explore the diversity we have in the court system, both in the workforce, and among the people and the communities we serve. It was a true celebration of the differences that make all of us special.

One need only turn to the radio, TV or internet to know that issues of race and gender are front and center in our world, including in the Trial Court. As a system, the Trial Court has implemented a broad-based effort to address the issues of race and implicit bias that we know exist within our justice system. While we are making strides, we cannot escape the events on our national landscape. Make no mistake, these events affect our work and influence how court users view the court system.

Since 2015 our efforts in the area of race and implicit bias have been comprehensive and intentional. They include a revised judicial evaluation instrument that is still under evaluation; an all-court race and bias conference for judges, and multiple follow-up conferences, one directed at civil cases and a second dedicated to criminal matters, all focused on identifying and addressing issues of bias.

Each Trial Court Department has established a judicial race and implicit bias committee that meets regularly and has developed bench cards and implemented further follow-up efforts to combat and address race issues. In addition, separate clerks, probation and security committees exist to accomplish the same result. We have established a Trial Court steering committee that includes judges, clerks, probation and court security to oversee all efforts with the goal of changing Trial Court culture on diversity issues.

232 Just last week we brought together all who serve on these committees, including leaders of three pilot courts. The outcome of the gathering and the energy it produced was more than I could have imagined. We are the Trial Court. We deliver justice to all impartially, fairly and without regard to race and ethnicity. I think I speak for all who were there in saying that individually and collectively we left even more committed to having the hard conversations and to addressing issues of race and bias head on.

I recently saw a video of a powerful speech on race delivered by Lt. General Jay Silveria of the Air Force Academy. He had gathered over 4,000 cadets and employees after someone wrote racial slurs on message boards outside the dorm room of five students of color. At one point in his forceful speech he asked everyone in the audience to take out their phones and record him so that his message was clearly heard, understood, and remembered. He said “If you can’t treat all with dignity and respect, get out.”

Our hope is to build capacity so that our leaders and our employees can hold each other accountable in ensuring that our users have trust and confidence in our system and that all employees feel valued and are treated with respect and dignity.

Increasingly, we are seeing more people in our system who now live or grew up in extreme poverty. In order to truly treat people with respect and dignity we must consider each person as a comprehensive whole and consider how their life experiences cause them to be connected to our justice system.

Poverty creates legal problems that the middle class and wealthy individuals generally do not have. Challenges for people living in poverty in navigating our system include difficulty producing paperwork to prove their case and often an inability to read or comprehend written or oral court orders, decisions or agreements. They may also face more basic obstacles like lack of transportation and day care.

233 The question our system must ask is, ‘do those who live in poverty fare the same as middle class and wealthy individuals when contact with the justice system becomes necessary?’

The majority of persons living in poverty must navigate the justice system without legal assistance, especially in civil areas. The right to counsel in criminal cases is well established. However, in civil cases the right to counsel is limited and in fact the Legal Services Corporation, the largest funder of civil legal services, continues to fight for its existence. Our system was designed for lawyers. Substantive and procedural law is unfamiliar and difficult for any untrained individual.

Our documents are written at high levels of literacy. Efforts are underway in our state to put court forms in plain language, at a fifth grade level, but we have a long way to go to make our forms and procedures understandable for a critical mass of unrepresented litigants. Much of what I have spoken about relates directly or indirectly to the issues of criminal justice reform and access to justice. The Trial Court is firmly committed to criminal justice reform, not only in the form of the Governor’s bill but also in more expansive changes to our bail statute. The Trial Court supports efforts to decrease reliance on cash bail, systematize the factors courts consider when deciding whether to release someone pending trial, and require the least restrictive bail conditions. The Trial Court also applauds the focus on ensuring that individuals detained prior to trial have the process appropriate to that outcome. The Trial Court welcomes the expansion of Community Corrections Centers that the Governor’s bill includes. The ability to use these resource-rich centers for pretrial services will enable us to better serve the people appearing in our criminal courts.

Our work in this area in the last year has provided a wonderful opportunity to collaborate with the executive and legislative branches in ways that are unprecedented. I am both proud and grateful for this partnership. Chief Justice Gants discussed overall reform in his remarks so I will not repeat his always eloquent points. But I do want to touch upon one aspect of reform that is of great interest to the Trial Court and that is the area of Emerging Adults, ages 18-24.

234

We learned from our work with the Council of State Governments that young adults aged 18-24 in Massachusetts account for a disproportionately high percentage of arrests and prison admissions. Statistics indicate about half of previously incarcerated young adults return to prison within three years following release. There is much debate about when young people fully mature and have full control of their behavior. Is it 18?, 21?, 24? or later. Research continues to develop. When is their brain maturation complete? Having a justice system that appropriately responds to criminal behavior and helps young adults rebuild their lives has the potential to reduce future criminal activity and consequently the number of future victims.

The Trial Court is committed to getting this work right. We have examined specialty court sessions, such as those occurring in San Francisco, and restorative justice models in Buffalo. We have learned much from our review. Recognizing the unique needs in Massachusetts, our model will be one that focuses specifically on high risk / high need emerging adults.

In connection with the Council of State Governments’ work, state funds have been allocated for the Trial Court to begin its first-ever Massachusetts Young Adult Pilot Probation Program. The goal of this pilot program is to develop a new approach for working with probation-involved young adults (ages 18-24) that will result in better outcomes and cost efficiency for a targeted population that currently has the highest recidivism in the state. Moreover, we intend that this program intervention, grounded in evidence-based research, will serve as a model for innovative service delivery, data sharing and procurement design that could be scaled in Massachusetts and beyond.

Given conversations around criminal justice policy reform and the focus on new programming for young adults due to recent brain research development, we believe that this particular program can also represent a significant contribution to the overall field of young adult justice. We are also developing education modules for all judges and Probation to provide cutting edge research on how to approach these “emerging” adults in a way that will preserve public safety and improve outcomes.

235

Further, we will be exploring our own version to an Emerging Adult Court Session with strong judicial involvement devoted to high risk / high need individuals.

I look forward to this “State of the Judiciary” every year. Those of you who know me, know I love to talk about the Trial Court – the judges, clerks and incredible people who work so hard to make a difference every day – the people that make me so proud to be a leader in this organization – and to talk about my passion – the work of delivering justice. But the “State of the Judiciary” always gives me the opportunity to reflect upon the Bar and all the ways that you partner with us to help in that delivery of justice with dignity.

It is only with all of you – DA’s, CPCS, AG, the MBA, BBA, all the local and affinity Bar associations – with your individual representation, the programs you sponsor, staff and fund, and your advocacy for the Trial Court, that we succeed. We share a background of legal education, training and advocacy that allows us to do this important work. Please know that I never take the quality of representation or the good will of Massachusetts Bar for granted.

In closing, I would like to thank Chief Justice Ralph Gants and the SJC for their incredible support, my Partner in Justice Jon Williams for his commitment to Massachusetts and for the knowledge and experience he brings to us, and my fellow Chief Justices, individually and collectively. You are the best I could ever hope for. You each do an amazing job of representing and advocating for your department but when the time comes to consider the collective needs of the system, you are able to change hats and do that equally as well – so, thank you.

Thank you all for your support and collaboration. These are challenging times but I know that we will continue to make progress in Massachusetts given the strong partnerships represented here today.

236 State of the Judiciary Court Administrator Jonathan Williams Address to the Massachusetts Bar Association October 26, 2017

This State of the Judiciary Address is my first opportunity to speak formally to the Massachusetts Bar Association, and through you to the people of the Commonwealth to whom we are accountable. Thank you for all that you do professionally, whether counseling your clients or volunteer efforts supporting and maintaining the finest justice system in the world.

You all know that I have come from a legal and governmental career in North Carolina. Two hundred years ago a young man wrote to a North Carolina judge that: I would certainly prefer greatly being an able advocate at the Bar, than being distinguished in any other avocation and shall never cease to think that the brightest ornaments of the Bar are the brightest ornaments of Human Nature.i

I wholeheartedly agree. I have always found the company of lawyers to provide wit and wisdom in everyday life and in meeting most of life’s larger challenges.

My appointment as Court Administrator by the Supreme Judicial Court is a singular professional honor. It is also a pleasure to work with Chief Justice Gants and the members of the Court. And each day it is a privilege to work alongside Chief Justice of the Trial Court Paula Carey. She is one of the most dynamic and engaged court leaders in the country. As we travel the state, I see how she represents the energy and high ideals of court leaders statewide. Her particular zeal and her encouragement of others brings out the best in everyone. She is a great colleague and partner.

One reason I came to Massachusetts is its unique court governance. Six years ago, statutes were amended and the Executive Office of the Trial Court was created. Harry Spence was appointed as the first Court Administrator to work as an equal with the Chief Justice. It is now my job to build on a strong foundation to prove that the success of this model can endure.

237 Chief Justice Gants today challenged us to continue to innovate: “to rethink how to make the legal process fairer, more efficient, and more effective in solving the problems of the people who come before us.”

Chief Justice Carey explained more about how we are living our mission of delivering justice with dignity and speed – by addressing issues of race and bias in the courts, by mitigating obstacles that accompany poverty, and becoming more focused on stronger intervention with young adults.

Let me outline what is happening on the administrative front to enable us to meet these challenges. Today, I’ll report to you on our workforce, our capital facilities plan, and our technology.

People are the most important part of any institution; and facing a judge is only one part of a court experience. The people who work as Court Officers both greet everyone and must be prepared for anything. Staff at the counters must be knowledgeable and efficient. Probation Officers develop relationships with offenders to help build or restore productive lives. Our facilities staffs both maintain notable historic structures and operate state of the art energy conservation systems. Court interpreters provide assistance in dozens of languages. We have many needs and many careers.

As community and court needs evolve, we must invest in recruitment and retention of talented new employees, as well as in ongoing training for our existing workforce. We have doubled the number of court staff receiving training over the past four years. We have established a nationally-certified training academy for court security. We have working groups assessing and planning how technology will reshape our job requirements. In 2018, we will launch a health and wellness initiative.

Through employment diversity efforts we have reached rough parity in the race, ethnicity and gender composition of our workforce with that of the Commonwealth. We recognize disparities remain between certain job groups and titles, and we are working to address those. You can expect us to do more to modernize our recruiting, hiring and promotional processes.

The workforce we seek is a diverse one that values merit-based hiring and promotion, seeks continuing education, embraces innovation, and strives to live up to our ideals of justice each day.

238 While the workforce is our daily concern, over the next generation our capital facilities plan is designed to provide and protect the courts we need for the future. The Trial Court and the state’s Division of Capital Asset Management in 2015 began a comprehensive, data-driven dive into the physical assets and needs of our court system. We own or lease more than 100 facilities statewide and the majority are more than 50 years old.

But in too many places maintenance and upkeep have gone unmet, including fire safety systems, ADA compliance, and even basic heating and air conditioning. All told the assessment tallied up to $2 billion in accumulated deferred maintenance needs.

In some cases the buildings are just not financially worth maintaining as courts, typically because the volume of work has far outgrown the facility. On that basis and with many other deficiencies the Quincy District Court rated as the highest priority for replacement.

We also are working to optimize the number of courthouses. In some places we are consolidating multiple court departments into a single building that offers not only a much better working and service environment but lower operating costs to provide security, upkeep and readiness for technology. It makes it possible to have court service centers as well.

On that basis, the next regional justice center will include courts in Dedham with Quincy. Typically we expect savings of $1.5 million annually in basic operating costs by working in one building instead of four. Often the buildings we expect to combine are within sight of one another. Our newest courthouses have innovative energy efficiency systems with LEED certification, and those investments will pay off year after year in lower energy costs. Altogether the assessment for new construction statewide totals another $1 billion.

Our capital plan breaks these projects into phases over the next 20 years. In fact, the bond bill for the first phase was favorably voted out of committee this week. We are very fortunate to have supportive partners in both the legislative and executive branches to move this work forward.

Let’s move now to technology. Technology has transformed the practice of law and administration of justice in my lifetime. Data that used to be just words on a physical page in a court file can now be captured, moved, stored and distributed electronically, and verified as secure and uncorrupted.

239

In software development and other fields there is an important concept called the “user experience.” That means paying attention to how people interact with a system -- whether it is easy to navigate and find what you need. “User experience” began to influence how government works many years ago, but courts have been a bit slow to embrace it fully. That’s why it caught my eye in the Massachusetts Trial Court Strategic Plan that User Experience would be a critical domain. It affects how we see access to interpreters and helping self represented litigants, but it also means thinking about how court technology can better serve the public.

We recently conducted a survey of people using Massachusetts courts. More than 1,500 people at 25 different court sites were asked about their experience. We found that 22% of those coming to court were attorneys, then of course there are witnesses and jurors and so on. But 11% were individuals there just to file papers and another 4% were just there to make payments. So we ask do they all have to come?

There are literally millions of trips to courthouses each year, and technology gives us new ways to transact traditional business. For example, in the first six months of this year we hosted close to 8,000 video events. The majority were arraignments, but did you know that we have held hearings on orders of protection, probation hearings, and hosted attorneys arguing motions from their offices, all transmitted to screens in courtrooms?

As leaders of the bar, you know we have committed to e-filing for civil matters. We have accepted more than 1,000 new cases this year. You probably don’t know that 25,000 electronic applications for criminal complaints were filed from police departments this year. In the next year we will pilot an application specially designed for judges to access files and work from the bench electronically. They will use the same technology in their lobbies and when assigned to other sites. This means the ability to access their files from any session wherever they happen to be.

And for the public we are about to turn on a feature to make payments online, including court costs, probation fees, restitution and other matters.

Of 429 courtrooms in the Commonwealth almost 300 are now equipped with the latest audio recording technology. Not only does this improve sound quality, but the recordings are stored centrally and available for streaming playback online.

240 Most exciting for practicing lawyers and appellate judges is that this system allows us to shorten the time for producing most transcripts from 90 days to 30 days.

We are excited that technology will save court users valuable time so that they can come to the courthouse only when their testimony is needed or they need to meet with staff on an estate or other matter where a face-to-face meeting is the best way, and not the only way. That survey quantified what we all might have guessed: 36% of court users missed work or school for court, and 11% had to arrange care for a family member to come to court. We want to these users to have more options at less personal and financial cost.

These are just some of the ways we are meeting Chief Justice Gants’ call to rethink the ways we deliver justice.

Before I conclude let me honor our predecessors who founded and led the modern court system. Until the 1978 reorganization there was no state trial court system. There were 95 county-based courts operating with near independence and famous for delay and inefficiency. Chief Justice Arthur Mason was appointed to bring into existence the statewide court system we now take for granted. Chief Justice Mason was known for his modesty, kindness, and thoughtfulness, and no challenge we face today is greater than those he met and mastered. As you may know, Chief Justice Mason passed away last week at the age of 95. We remain grateful and indebted that he devoted 35 of those years to public service, 14 of those as the first Chief Justice of the Trial Court.

In my first six months I have visited almost one-fourth of the courthouses in the Commonwealth. My observation as the newest member of the team before you is that the State of the Judiciary is strong. The work of our judges, clerks, court officers, probation, facilities and other support staff has never been more professional than today.

I appreciate the opportunity to appear before you. And I look forward to working with you as we continue our progress.

i The Papers of Thomas Ruffin, Volume 1, p. 440 (J. G. de Roulhac Hamilton, ed., North Carolina Historical Commission 1918)

241

242 243

244 Standing Order 1-15. Participation in Juror Voir Dire by..., MA R SUPER CT...

Massachusetts General Laws Annotated Standing Orders of the Superior Court

Superior Court Order 1-15

Standing Order 1-15. Participation in Juror Voir Dire by Attorneys and Self-Represented Parties

Currentness

(Applicable to All Counties)

A. Purpose.

The purpose of this Standing Order is to provide an interim procedure for the implementation of St. 2014, c. 254, § 2, pending completion of the work of the Supreme Judicial Court Committee on Juror Voir Dire. The Superior Court anticipates that this Standing Order may be superseded by, or may be modified in response to, such rules, protocols, or guidelines as the Supreme Judicial Court may hereafter adopt or approve, as well as in response to experience in the implementation of this Standing Order, including experience with the pilot project referred to in paragraph C(9) hereof. This Standing Order is adopted pursuant to Trial Court Rule V; shall take effect on February 2, 2015, coincident with the effective date of St. 2014, c. 254, § 2; and shall remain in effect until such time as it may be superseded or modified.

B. Preamble.

In enacting St. 2014, c. 254, § 2, the Legislature recognized and preserved the discretion of the trial judge to lead and supervise the process of juror voir dire, including oral examination of prospective jurors by attorneys and self-represented parties in the exercise of the right granted by the statute. The Superior Court recognizes that trial judges may properly exercise discretion to employ procedures for the examination of prospective jurors by attorneys and self-represented parties that may differ from those set forth herein, as well as to use written juror questionnaires where they deem appropriate in addition to the Confidential Juror Questionnaire required by G. L. c. 234A, § 22 (hereinafter, the “statutory Confidential Juror Questionnaire”). This Standing Order fully preserves the discretionary authority of the trial judge with respect to the examination and selection of jurors in each case, and provides a standard procedure that will apply in each civil and criminal case unless otherwise ordered by the trial judge, while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.

C. Procedure:

1. Any attorney or self-represented party who seeks to examine the prospective jurors shall serve and file a motion requesting leave to do so. In civil cases such motion shall follow the procedure provided by Superior Court Rule 9A, and shall be filed with the Court, along with any opposition or other response received, not later than the earlier of (a) the final trial conference if such a conference is scheduled in the case, or (b) fourteen days prior to the date scheduled for trial. In criminal cases the motion shall be served on all parties at least one week before filing, and the motion and any opposition or other response shall be filed with the Court not later than two business days prior to the scheduled date of the final pretrial conference, or, in the event that no final pretrial conference is scheduled, five business days before the scheduled trial date.

2. The motion shall identify generally the topics of the questions the moving party proposes to ask the prospective jurors. Topics identified shall be interpreted to include reasonable follow-up questions. Any opposition or response to any such motion may address the proposed topics. The trial judge may, in the exercise of discretion, and after notice to the parties, require attorneys and self-represented parties to submit the specific language of the proposed questions for pre-approval. The motion and any responsive filing shall also include any proposed language for brief preliminary instructions on principles of law to be given pursuant to paragraph 5(b) hereof.

3. The trial judge shall approve or disapprove the topics of questions proposed, or, if the trial judge requires pre-approval of the specific language of the proposed questions, shall approve or disapprove each proposed question. In doing so the judge shall give due regard to the goals of: (a) selecting jurors who can and will decide the case based on solely the evidence and the law, fairly and impartially to all parties, without in the process exposing jurors to any extraneous matter that would undermine their impartiality; (b) conducting the selection process with reasonable expedition, in proportion to the nature and seriousness of the case and the anticipated length of the trial, and with due regard for the needs of other sessions that draw on the same jury pool for access to potential jurors; and (c) respecting the dignity and privacy of each potential juror.

4. (a) Questions that should generally be approved are:

(1) those seeking factual information about the prospective juror's background and experience pertinent to the issues expected to arise in the case, along with reasonable follow-up questions regarding whether and how such background or experiences might influence the juror in the case, provided that questions that would elicit sensitive personal information about a juror, or that specifically reference information provided in a juror's statutory Confidential Juror Questionnaire, shall be permitted only outside the presence or hearing of other jurors, so as to preserve the confidentiality required by G. L. c. 234A, s. 23.

(2) those regarding preconceptions or biases relating to the identity of the parties or the nature of the claims or issues expected to arise in the case.

(3) those inquiring about the prospective jurors' willingness and ability to accept and apply pertinent legal principles as instructed, after consultation with the judge regarding the principles of law on which the judge will instruct the jury.

(b) Questions that should generally be disapproved are those:

(1) that duplicate the questions that appear on the statutory Confidential Juror Questionnaire, or any other written juror questionnaire used in the case, but questions seeking further detail regarding information provided on a juror's questionnaire, or completion of any uncompleted answers on the questionnaire, should generally be approved, subject to the limitation stated in paragraph (a)(1) hereof;

(2) regarding the prospective juror's political views, voting patterns, party preferences, religious beliefs or affiliation, reading or viewing habits, patterns of charitable giving, opinions on matters of public policy, hobbies or recreational activities, or similar matters, or regarding insurance, except insofar as such matters may be relevant to issues expected to arise, or may affect the juror's impartiality in the case;

(3) regarding the outcome of any trial in which the prospective juror has previously served as a juror, or deliberations in or the prospective juror's vote in such trial;

(4) purporting to instruct jurors on the law;

(5) that make arguments on any issue of fact or law; that tend to indoctrinate or persuade; that encourage the juror to identify with a party, victim, witness, attorney, or other person or entity, or to send a message; or that encourage the juror to prejudge any issue in the case, to make a commitment to support a particular result, or to do anything other than remain impartial and follow the Court's instructions.

(6) that require a juror to guess or speculate about facts or law.

(7) that would tend to embarrass or offend jurors or unduly invade jurors' privacy.

5. Prior to any questioning by attorneys or self-represented parties, the trial judge shall:

(a) provide the venire with a brief description of the case, including the nature of the facts alleged and of the claims or charges, including the date and location of the pertinent alleged event(s), and the identity of persons or entities significantly involved;

(b) provide the venire with brief, preliminary instructions on significant legal principles pertinent to the case. Such instructions should include a brief recitation of: the burden and standard of proof; the elements of at least the primary civil claim or at least the most serious criminal charge, and, if appropriate to the case and requested by counsel or a self- represented party, the elements of any affirmative defense that will be presented to the jury; and, in criminal cases, the defendant's right not to testify.

(c) explain to the venire the empanelment process, including, in cases where attorneys and/or self-represented parties will pose questions, the nature and topics of the questions that will be posed, and that any juror who finds either a particular question or the process of questioning by attorneys or self-represented parties intrusive on the juror's privacy may request to be permitted to decline to answer and/or that steps be taken to protect the privacy of any information disclosed. Upon request, the judge may permit each party to make a brief introductory statement to the venire limited to explaining the process and purpose of the questioning of jurors by attorneys or self-represented parties.

(d) ask all questions required by statute or case law, and any additional questions the judge deems appropriate in light of the nature of the case and the issues expected to be raised. The judge may ask questions of the venire as a group, but should conduct at least part of the questioning of each prospective juror individually outside the presence or hearing of other jurors.

(e) as to each prospective juror questioned individually, excuse the juror if the judge determines that service would pose a hardship, or if the judge has doubt as to the juror's impartiality; otherwise find the juror indifferent and able to serve.

6. After the judge has found an individual juror indifferent and able to serve, the judge shall permit questioning by attorneys or self-represented litigants if and to the extent that the judge has previously approved such questioning upon motion submitted in the manner provided herein. Such questioning shall begin with the party having the burden of proof.

(a) Except as provided in paragraphs C(6)(b) and C(9) hereof, the judge may require that such questioning be conducted of each prospective juror individually, outside the presence or hearing of other jurors. Parties may assert challenges for cause based on the juror's responses to questions posed by attorneys or self-represented parties, notwithstanding that the judge has previously found the juror indifferent based on the judge's questioning and information provided in the statutory Confidential Juror Questionnaire. If the juror is not excused for cause upon such challenge, the judge may require the exercise of any peremptory challenge at that time, beginning with the party who has the burden of proof and, in civil cases, the judge may alternate sides thereafter. Alternatively, the judge may seat the juror subject to the parties' later exercise of peremptory challenges.

(b) Upon request of one or both parties, the trial judge may permit counsel or self-represented parties to question jurors as a group, in a so-called “panel voir dire” procedure. Such questioning shall occur of those jurors whom the judge has already questioned individually and found indifferent and able to serve, after the judge has so found with respect to at least the number of jurors that will be seated for trial. If questioning occurs in this form, the judge shall not permit any questions that would elicit sensitive personal information about an individual juror, or that would specifically reference information provided in a juror's statutory Confidential Juror Questionnaire. Jurors to whom questions are addressed, or who respond to questions, shall be identified on the record by juror number only. After completion of questioning the parties may assert challenges for cause based on responses to questions posed by attorneys or self-represented parties, although the judge has previously found the challenged juror indifferent. The judge shall require that such challenges for cause, as well as peremptory challenges, be asserted outside the hearing of other jurors. Upon any challenge for cause, the judge may allow opposing counsel further opportunity to question the juror.

7. Whether questioning of jurors by attorneys or self-represented parties occurs individually or in a group, any party may object to a question posed by another party by stating “objection,” without elaboration or argument. The judge may rule on the objection in the presence of the juror or jurors, or may hear argument and rule on the objection outside the presence or hearing of the juror or jurors.

8. The trial judge may set a reasonable time limit for questioning of prospective jurors by attorneys or self-represented parties, giving due regard to (1) the objective of identification of inappropriate bias in fairness to all parties; (2) the interests of the public and of the parties in reasonable expedition, in proportion to the nature and seriousness of the case and the length of the anticipated evidence, and (3) the needs of cases scheduled in other sessions drawing on the same jury pool for access to prospective jurors.

9. The Court will establish a pilot project, in which judges who volunteer to do so will conduct so-called “panel voir dire,” according to a consistent procedure to be determined and described in a separate document. During the course of the pilot project, the Court will compile data regarding identified measures. Upon completion of the pilot project, the Court will issue a public report of such data.

Credits Adopted December 5, 2014, effective February 2, 2015.

Superior Court Order 1-15, MA R SUPER CT Order 1-15 Current with amendments received through October 15, 2015.

250 SECTION 2 Massachusetts Rules of Professional Conduct and How They Differ from the Model Rules

I. Overview

II. “The Legal Ethics Nightmare of Increase Adams, Esq.” (Introduction)

III. Hypothetical One: “Goony Universe” Facts:

1. Massachusetts firm associate Ray Sipsa, a Massachusetts and Flor- ida bar member, and junior partner Lois Bidder, who is a real estate lawyer, travel to Florida to close a deal to represent Goony Universe in its project involving surreptitiously purchasing land in Greenville, Mass. for the construction of a theme park.

2. Ray, a negotiation specialist, has been told by his partners to “Do or say whatever you have to, just so you get the representation.” To further hone his skills as a negotiator, Ray plans to keep a small recording device in his pocket so he can review the session later and critique his performance.

251 3. The CEO of Goony Universe, saying that he does not approve of female attorneys (and that Lois is so attractive that he couldn’t “trust himself” to work with her), asks Ray to handle the representation.

4. Ray protests that he is a novice in the real estate field, and would have to charge for the time it would take him to become sufficiently competent. The CEO agrees, and the deal is sealed with a handshake.

Question: Can Ray and Lois ethically accede to the requirement that no female attorney bill time on the project? 1. Of course. This is the client’s prerogative. 2. No. Ray is not competent for the task. 3. Yes. A lawyer does not endorse a client’s methods or beliefs by representing him. 4. No. This is prohibited by the Rules of Professional conduct. 5. They can, but they shouldn’t.

Issues:

• Ethically questionable retainer provisions required by potential clients • Fee agreements • Reasonable fees • Competence • Discrimination • Assisting a client in unethical or illegal conduct • Surreptitious taping for personal use. • New ABA Rule 8.4g

Massachusetts Rules of Professional Conduct: 1.1, 1.2, 1.3, 1.5, 5.1, 5.2, 8.4

252 IV. Hypothetical Two: “Hedda Cabbage”

Facts:

1. Before associate Ray Sipsa begins purchasing any Greenfield real estate for Gooney, but after the representation has commenced, the General Counsel of a long-time corporate client of the firm, during a social engagement, informs the firm’s senior partner that its board has decided to buy up land in the vicinity of the Massachusetts Hamptons or nearby Greenfield and to build a new theme park.

2. To complete the final land purchase from an elderly female owner (who insists on representing herself in negotiations), Ray flirts, en- dears himself to her and tells her that he “would never take advantage of her.”

3. She agrees to the sale, and also offers to sell an adjoining piece of land outside the theme park construction territory. Ray realizes that the parcel will be worth a fortune once Goony Universe announces the project.

4. Ray calls the firm partner, and asks what he should do regarding the proffered sale. He is told to complete the sale for the property sought for the client, and then to arrange to purchase the property for the firm once the representation is complete.

253 Question: Can the law firm ethically purchase the adjoining parcel after the representation ends? 1. Not without first alerting the client. 2. Not without getting permission from the client. 3. Sure: Florida rules govern, and Florida would allow it. 4. It’s permitted by the Rules, but it’s still unethical. 5. Ray should have said nothing, and purchased the land for himself.

Issues:

• Negotiation • Honesty, Deceit • Confidences • Loyalty • Information learned in the course of representation. • Supervisory and subordinate attorneys • Conflicts of interest • Definition of practice of law • Thrust-upon conflicts • Compliance vs. Ethics

Massachusetts Rules of Professional Conduct:

1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.9, 1.10, 2.1, 4.1, 4.2, 5.1, 5.2, 8.4

[15-minute Break]

254 V. Hypothetical Three: “I Love Luca”

Facts:

1. Attorney Barb Cratchit is defending hit man Luca Brahmin, who is accused of killing a client of Adams & Cabot. Luca waives the conflict.

2. A TV show proposes to have both attorney and client wired and filmed during the case for a documentary. Barb explains to Luca that she will remove both mics and dismiss the film crew whenever confidential material is being covered in their discussions, or if Luca is uncomfortable with a discussion on camera.

3. Immediately before trial begins, Barb approaches the prosecutor in the case and references, as if by accident, a recent personal tragedy for the DA involving the death of a child. The tactic successfully upsets him, leading to a shaky opening statement.

4. During the course of the trial, the jailed hit man tries to use Barb Cratchit to deliver a letter to a confederate setting up perjured testimony to lay the foundation of an alibi. The suborning letter is sealed inside an envelope addressed to Barb to avoid prison inspection, along with a note to her requesting that she mail it. The lawyer opens the sealed letter, revealing the plot, then immediately withdraws, disclos- ing the contents of the letter to the judge without requesting that it be under seal.

255 Question: What ethics rules, if any, has Barb Cratchit violated? 1. She had an unwaivable conflict that she let her client waive. 2. Her treatment of the mourning prosecutor was disgusting and unethical. 3. Her handling of the letter was unethical. 4. All of the above. 5. I have another answer.

Issues:

• Conflicts of interest • Confidentiality • Communication • Loyalty • Client perjury • Withdrawal • Informed Waiver • Crime-fraud exception

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.9, 1.10, 2.1, 3.3, 3.4, 8.4

256 VI. Hypothetical Four: “Dinner of Doom”

Facts:

1. Attorney Fred Fezziwig is having a romantic dinner with Donna De Dedd, his girlfriend and the general counsel of a Massachusetts- headquartered company with operations all over the country. He started representing the company on copyright and trademark issues when he was living and practicing in New Jersey. He was hired by Donna, and he moved with her to Boston when she was transferred.

2. He now teaches at a local law school, but never got his Massachu- setts law license. Nonetheless, he frequently takes on appellate cases in Federal Court and conducts all his legal work, such as it is, from his faculty office. The sign on the door says, “Professor Fred Fezziwig, Attorney at Law.”

3. During their dinner, Donna tells Fred that the company is “pre- texting” to acquire information in its investigation about leaks from the Board. She has answered the CEO’s questions about legality by saying that there are no cases she can find where anyone was indicted or fined for such tactics, but she wonders if she should do more.

4. She asks Fred his opinion. Fred tells her that she needs to go “up the ladder” with her concerns, but she refuses, saying that the Found- er/CEO is behind the operation, and the Board is the target.

257 Question: What is Fred’s most ethical course? 1. He needs to go “up the ladder” himself, and if necessary, report to the stockholders. 2. Nothing. This doesn’t involve him. 3. He needs to tell Donna that she has to report the conduct, and he will report her for misconduct if she does not. 4. Nothing. There is nothing illegal that triggers an obligation. 5. He can try going “up the ladder,” but he cannot report “out” if it doesn’t work. 6. Something else.

Other issues to be discussed:

• Unauthorized practice of law • Conflicts of interest • Conflicts of law • Organizational representations • Supervision of non lawyer assistants • Confidentiality • Communication • Withdrawal • Threatening attorney misconduct • Reporting attorney misconduct • Potential clients • Sex with clients

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.8, 1.13, 1.16, 1.18, 2.1, 5.3, 5.5, 8.3, 8.4

258

VII. Hypothetical Five: “Techno-Hell”

1. Increase sees himself in the future, working in a law office filled with electronic devices that he neither comprehends then or now.

2. He receives endorsements on LinkedIn®, is active on Twitter, and talks about a case with Siri on his iPhone. ®

3. He uses Skype® to speak with opposing counsel (who can see confidential documents on Increase’s desk.) He sends an e-mail about a client’s legal affairs to a client’s workplace account, and uses Google Docs to send some case documents.

4. He chats about another case using Facebook® messaging with a client in an airport, and investigates potential jurors using Facebook®.

5. He receives an email from opposing counsel with a document that that includes metadata that counsel neglected to remove, and uses metadata mining software to find and read it.

6. Increase places a client’s file, including uploaded interviews and privileged documents, on an ultra-small flash storage device, and slips it in his wallet, and buys a high tech auditory translator that will allow him to understand anything opposing counsel in an upcoming negotiation says or hears from his client in the client’s native tongue.

259

Question: Which of the following uses or misuses of technology by Increase do not violate the Massachusetts Rules? 1. Using a hidden translator 2. Surreptitiously checking a juror’s Facebook site 3. Using metadata mining software 4. Discussing cases with Siri 5. They all violate the Rules

Other issues:

• Competence • Diligence • E-mail • Legal technology • Social networking • Inadvertent transmission of confidential information • Advertising • Protecting client confidences • Misrepresentation • Zealous representation • Communication • Safekeeping client property • Professionalism

Massachusetts Rules of Professional Conduct:

1.1, 1.2, 1.3, 1.4, 1.6, 1.15, 2.1, 7.1, 7.2, 7.3, 7.4, 8.4

260

SECTION 3 Managing the Attorney-Client Relationship, Including Social Media Do’s and Don’ts

Materials provided by James S. Bolan, Esq., Brecher, Wyner, Simons, Fox & Bolan LLP, Newton Centre—

A Prospective Client ...... 263

B Documentation ...... 264

C Telephone Procedures ...... 265

D Confidentiality ...... 266

E Conflict Checks ...... 267

F Outline of Massachusetts Legal Malpractice Law ...... 275

G 24 Top Ten Rules of the Road ...... 276

H I Never “Met A Data” I Didn’t Like...... 279

I Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition) ...... 286

J Ethics, Risk and Malpractice Avoidance (excerpts) ...... 288

K Loss Prevention/Malpractice Prevention/Bar Complaint— Review, Response, and Audit (excerpts) ...... 316

L You Mail, I Mail, We All Send Email ...... 325

M “In-House” and “Out-House” ...... 328

N Fee Agreements and Related Administrative Documents ...... 331

Materials provided by Christa A. Arcos, Esq. of Stoneham—

O Multiple Party Representation and the New Conflict Rules: What You Need to Know ...... 359

P Revisions to the Rules of Professional Conduct: What You Need to Know ...... 360

261

Q Sample Potential Conflict Disclosure Letter—Civil Litigation ...... 361

R Sample Potential Conflict Disclosure Letter—Joint Estate Plan ...... 365

S CJE Opinion No. 2016-01 (Facebook: Using Social Networking Site) ...... 368

T CJE Opinion No. 2016-08 (LinkedIn: Using Social Networking Site) ...... 373

U CJE Opinion No. 2016-09 (Twitter: Using Social Networking Site) ...... 375

V What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents ...... 380

W Wearing Two Hats: Dual Practices and Ancillary Businesses ...... 383

X Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012) ...... 388

Y Getting Ahead in the Cloud ...... 401

Z MBA Ethics Opinion 12-03 (Using Cloud Storage—Google Docs) ...... 406 (published in 2012, prior to the revision of the Massachusetts Rules of Professional Conduct, which became effective on July 1, 2015.)

A2 Revised Massachusetts Rules of Professional Conduct ...... 410 • SJC Announcement of Revised Rules ...... 411 • Report of the Standing Advisory Committee ...... 413

Materials provided by Scott D. Burke, Esq., Morrison Mahoney LLP, Boston—

B2 MBA Ethics Opinion 2014-5 (“Friending” an Unrepresented Adversary)...... 418

C2 Sample Engagement Letter/Agreement ...... 420

D2 Sample Non-Engagement Letter ...... 427

Note: The checklists, documents, and forms compiled herein were prepared prior to the effective date of the revised rules and are intended as samples for your reference only. Please review the Massachusetts Rules of Professional Conduct, as revised effective July 1, 2015, for the most current status of the rules.

262 Section 3A

Prospective Client

1. What is your gut reaction about the person?

2. Has this person had prior counsel?

3. Does this person try to tell you that she/he knows the law or how to practice law?

4. What is her/his focus—winning at all costs; it’s the principle .... !

5. Can you take on the matter—time resources and money?

6. Is it within competence and expertise or can you associate with outside counsel?

7. If co-counsel—get all disclosures and deal with it in the fee agreement.

8. Fees discussion and costs/expenses discussion.

9. Fee agreement, in writing.

10. Have you given client enough time to ask questions?

11. Have you managed your time well—don’t give away the store before the agreement is signed and retainer obtained?

12. Retainers—Not non-refundable?

13. What is your telephone policy?

14. Explain litigation, including discovery if relevant, and establish a scope of engagement, particularly if limited. Memorialize the terms and scope of engagement in writing.

15. Have you AVOIDED making a guarantee—This is a good case! What do you think our chances are?

16. How did client get to the firm? Send thank you to referrer.

17. Thank client for coming to see you and letting you assist them?

18. Bill EVERY month. Keep contemporaneous time even on contingent, flat fee or hybrid fee matters.

263 Section 3B

Documentation

1. Do you use fee agreements/engagement letters?

2. Do the files contain a copy?

3. Worth considering that the engagement letter state that, if we don’t hear from you within 30 days, we are NOT engaged?

4. Include in fee agreement disposal/return of file policy after matter is over?

5. Non-engagement letters:

a. state clearly no attorney-client relationship created

b. be aware of any statute of limitations

c. recommend that other counsel be sought

6. Limited advice or scope letters

7. “ALA” Letters

8. Document telephone calls, meetings, conferences with clients and others

9. Second person review of all letters going out

10. Chronological files—incoming and outgoing

11. Work Files—so originals stay pristine

12. Paper trails so disputes don’t rely on memory later

13. Make sure staff are accountable to these tasks

14. Disengagement letters

264 Section 3C

Telephone Procedures

1. What is impression callers get when they call the office—who answers, the tone, how long it takes to answer, is it welcoming, the info given—also, make sure NO legal advice is given by receptionist and that NO attorney-client relationship is created by receptionist or staff—see DeVaux v. American Home Assurance.

2. Voice mail use.

3. Do you tell clients about the way calls are handled and the practice of returning calls?

4. What is the return call practice? Within 24 hours; if going to be out, have secretary or receptionist tell the caller.

5. Emergencies.

6. Ask clients to honestly state whether the matter is urgent or call wait a return call and try define emergency

7. How are telephone calls charged? See fee agreement

8. How do you document telephone calls—in billing program or bills?

265 Section 3D

Confidentiality

1. Do you have a confidentiality policy?

2. Do you discuss it with everyone in the office, staff in particular?

3. Do you remind incoming and departing employees of the Las Vegas Rule:

“Everything you say and hear here stays here”

4. Do you make sure that no client files are left in common areas?

5. Is the reception area set up so nothing confidential is overheard?

6. Are vendors and delivery folks monitored when they enter the space?

7. When meeting with clients, is it in an empty conference room and not in your office?

8. Are fax and other machines away from client or visitor access?

9. How do you handle

a. Cell phone calls

b. Emails

c. Texts

10. Do client files ever leave the office? See, Massachusetts Data Privacy laws.

266 Section 3E

Conflict Checks

1. Conflicts checks a. Tell prospective client about conflicts checks b. Don’t take too much information c. Do not fail to do one. d. The reason is to i. eliminate potential for conflict with existing client ii. eliminate potential for detrimental reliance if you announce that there is no A/C Rel until conflict check is done and fee agreement is signed. iii. identifies potential for future conflicts.

2. Who a. What names do you collect and search? i. All person and entities involved incl banks, known witnesses, counsel, experts, corporate family—shareholders, members, officers, directors, agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation—partners, LPs, association members, managers, general managers, estate fiduciaries, heirs, beneficiaries, assigns, spouses, DPOA, space sharers, of counsel, senior counsel, multi state offices, affiliates, etc ii. Recheck conflicts during the case for new folks iii. Joint representations have special rules—see 1.7 comments

3. Methodology doesn’t matter a. X-1, cards etc.

4. Imputed conflicts—See BBA Op 2004-1 for laterals, etc.

5. Conflict waivers—another world altogether a. Non waivable conflicts—CVV b. Screens

267 BRECHER, WYNER, SIMONS, FOX & BOLAN, LLP 100 Wells Avenue Newton, Massachusetts 02459 (617) 614-1500

CONFLICTS CHECK—PERSONAL AND CONFIDENTIAL

Responsible Attorney:

Date:

Prospective/Existing Client:

Prospective Opposing Party:

Opposing Counsel:

Other Persons, Parties or Witnesses:

Others:

Matter:

Our File reference:

(If entity, list Manager for LLC and member/owners, partners for LLP, general and limited partners for LP, each partner for partnerships, shareholders for PC and corporations, beneficial or other interest holders for nominee trusts, trustee for trusts)

Please review above-listed information and indicate below whether you might have any information which would give rise to an actual or potential conflict. If you have any such information, please note it below and inform Managing Partner promptly.

Attorney/Staff No Conflict Conflict Issue Attorney/Staff No Conflict Conflict Issue

268

269 270 271 272 273

274 Section 3F

Outline of Massachusetts Legal Malpractice Law

In any legal malpractice action, therefore, these questions should be asked in the following order:

(1) Did an attorney-client relationship exist?

(2) Did that relationship require the attorney to perform a particular duty or adhere to a certain standard of care?

(3) Did the attorney breach that duty or fail to adhere to that standard of care?

(4) Did the client sustain damage?

(5) Was that damage proximately caused by the attorney’s breach of duty or failure to adhere to that standard of care?

An attorney client relationship is one in which a

a. Person seeks advice or assistance from a lawyer as a lawyer

b. The advice or assistance is within the lawyer’s professional competence

c. The lawyer gives the desired advice.

Duties are only owed to the client, except in rare circumstances in which non-clients are put into eth category of clients because of an implied relationship, one created by estoppel or one created by detrimental reliance.

Since the duty is owed only to the client, you must look to see who is the client to whom the duty is owed.

275 Section 3G

24 Top Ten Rules of the Road

In our representation of lawyers and law firms, a repetitive theme is, as they say, remember what you learned in Kindergarten. In that spirit, there are overarching “rules” of the road that need to be attended to—starting from alarm bells on whether to undertake a matter, who is your client (an enormous problem in real life), what is the scope of your engagement (how broad or limited), is there a clear fee arrangement and how do you extricate yourself at the other end. For your reading pleasure, culled from our experience and years of reading “to do lists” from many sources, please see the following sample Rules of the Road:

Prospective Clients

• Avoid prospective clients whose expectations, demands, “all-knowingness” gives you pause.

• Avoid matters that arrive at your door too late for you to be contemplative. Said another way, if you have to rush to rescue a claim, you may step over the cliff before you realize it.

• If something doesn’t seem right, run it by a friend, colleague or other trusted person before you undertake a representation. Do NOT ignore red flags, bright lights, bells going off.

Conflicts

• Conflicts checks!!!! The failure to do them will come back to bite you some day.

Non-Engagement/Limited Engagement

• If you do not undertake to represent someone, confirm the non-representation in writing, whether by email or letter.

• If you are undertaking a limited scope of engagement (just prepare the loan documents and do the closing), is it really limited or is the client expecting you to run title, etc. Have you taken the time to memorialize the limited scope? If you don’t, call me when the Board of Bar Overseers or malpractice claim is filed!

276 Fees and Bills

• Think long and hard about undertaking a matter in which the amount in issue is less than the realistic costs of conducting the litigation. If a $25,000 claim is going to cost $20,000 to litigate, you are going to lose money, the client is going to be furious and someone will complain.

• Talk about fees. Do not avoid the subject. If someone is reluctant or unable to pay up front, why is it going to get better down the road? (We are not talking about contingent or startup situations, of course.)

• If you agree to be retained, put it in writing. As Rule 1.5 states, “the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.”

• Make sure that the scope of the engagement is clear and defined from the beginning. (Did I mention this before??)

• Bill monthly. Make the bills clear and use lots of “action” verbs.

• If you are not being paid, do not walk away, fail to show up or withhold services. See “Getting Out” below.

Getting In: Representations, Planning and Doing

• If you make a promise, can you keep it? Since you probably cannot, don’t make it.

• If you guarantee a result, can you achieve it? Since you probably cannot, don’t do it.

• Avoid placating clients with claims that they will achieve a “good result”.

• Lying for any reason will come back to haunt you! (“Of course, we filed the extension.”)

• Spend time determining whether the facts and the law provide a good faith basis BE- FORE filing suit. Therefore, don’t promise to file suit when you are not sure if you will have a good faith basis to do so.

• Consider having an expert witness on board as early in the case as possible (if one is going to be needed) to substantiate the basis for claims to be made.

• Keep an accurate calendar, with ticklers for upcoming dates, and make sure that a second person double checks it.

277 • If you don’t want or cannot handle a matter, tell that client (or prospective client) that you want to refer it out. Make sure that the person referred to is competent. If you intend to seek a referral fee, it must be in writing signed by both counsel and the client before the referral is made. See, Rule 1.5 and Saggese v. Kelly, 455 Mass. 434 (2005).

Accounting

• The bane of all lawyers’ existence is keeping bank and accounting records straight. But, take the time to set up IOLTA records correctly, make sure they are reconciled no less than every 60 days and make sure that you enter data so that you can track income and outgo for each client and each matter in “subaccounts”. And, do not forget to maintain a small separate “subaccount” for the office within the IOLTA account to cover bank or related fees in case there is a charge to the account for a bounced or returned check.

Getting Out

• If you are not being paid, do not walk away, fail to show up or withhold services. See Rule 1.16. If you are involved in a matter before a tribunal (court or administrative agency, for ex.) you would need to file a Motion to Withdraw. If you are involved in a transactional matter, send a notice in writing that you are withdrawing and please invite the client to note deadlines of which you are aware. Termination letters are an “art form” and should be carefully drafted.

• If you do file a Motion to Withdraw, limit the text of the motion to a disclosure that there are “irreconcilable differences between you and the client.” Refrain from telling tales about the client since anything you disclose of substance is a breach of confidentiality and the client will see it as a betrayal.

• Do not go into business with a client. (A rare exception is taking stock in a start-up company, but even that occurrence has substantial risk and conditions attached.)

278 Section 3H

I Never “Met A Data” I Didn’t Like...

“Metadata” is the electronic subtext contained in computer generated documents. It can contain the properties of a document, including authors’ names (past and present), prior versions with revisions, the “tracked” changes, hidden text, and comments. If you send a Purchase and Sale Agreement electronically, a recipient can “reverse engineer” the document and find all of the above if it has not been removed from the document. It would certainly not be beneficial to the client if the other party were to see that the Sale Price or a pertinent condition of sale had been revised in a prior draft.

So, what are the risks related to metadata, how are the risks addressed, and how should we plan and respond?

1. There is a Duty Not to Disseminate Metadata

Many states generally agree that, “outside of a discovery/subpoena context,” attorneys sending electronic documents have an ethical duty to take reasonable care not to disclose their clients’ secrets and confidences. See, e.g., D.C. Op. 341; Ala. Formal Op. 2007-02; Md. Ethics Dkt. No. 2007-09. Although the degree of care required depends heavily on the nature and sensitivity of the particular information, lawyers must take “practical measures” to purge metadata “where appropriate to prevent the disclosure of confidential information.” Me. Op. 196; Ariz. Ethics Op. 07-03. Lawyers should also take reasonable steps to purge metadata when sending electronic documents, including “scrubbing the documents to ensure they are free of metadata.” N.Y. County Lawyers’ Ass’n Op. 738. In some jurisdictions, lawyers who are “ignorant of technology relating to metadata” are required to “obtain competent computer support” to comply with their ethical obligations. Colo. Ethics Op. 119.

2. Risks of Disclosure

The risk at issues is inadvertent disclosure of confidential or privileged information “the disclosure of which would be detrimental or embarrassing to the client,” such as “editorial comments, strategy considerations, legal issues raised by the client or the lawyer [and] legal advice provided by the lawyer.” See N.Y. Op. 782.

279 3. Consequences of Disclosure

The consequences of the risk are manifold, including (a) a fight over the use of the metadata and whether attorney client privilege or confidentiality has been waived; (b) the risk of a malpractice suit being filed for negligence, breach of confidentiality and fiduciary duty among other claims, and (c) the risk of a Board of Bar Overseers complaint being filed for violation of Rule 1.6 (confidentiality) among other claims.

4. How Massachusetts and Other States Treat Disclosure a. What’s Yours Is Mine

The ABA has taken the position that it was not dishonest for a lawyer to take active steps to review embedded data that had been inadvertently sent by another lawyer. Their view is that the duty of zealous representation permits one to look. There is no additional duty to the sending lawyer, apart from the duty to maintain confidentiality of client information under Rule 1.6. Without an agreement between the sending and receiving lawyer, the receiving lawyer can “mine” for data. Thus, ABA Op. 06-442 expressly concludes that mining for metadata is not an ethical violation, “thus placing the onus of preserving the confidentiality solely on the sending attorney.”

The Maryland Bar follows the ABA view, but also notes an “ethical obligation to take reasonable measures to avoid the disclosure of confidential or work product materials” embedded in electronic documents. And, they do not require that the receiving lawyer notify the sending lawyer that there may have been inadvertent disclosure of information, even though one should “communicate with his or her client concerning the pros and cons of whether to notify the sending attorney and/or to take such other action which they believe is appropriate.” b. What’s Yours Is Mine, Unless I Told You Not To Look.

Next, attorneys receiving documents outside the discovery setting may electronically search for metadata, unless they know the metadata were inadvertently disclosed. The District of Colum- bia Bar opined that “[a] receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent.” D.C. Op. 341 (2007).

The New York Bar said that a receiving lawyer “may not ethically take advantage of a breach in [an opposing] attorney’s care by intentionally searching the metadata.” N.Y. County Lawyers’ Ass’n Op. 738. Specifically, in New York, a receiving attorney may not search metadata ”with the intent to find privileged material or if finding privileged material is likely to occur from the search.” Id. (emphasis added).

The Alabama and Arizona Bars said that a “receiving lawyer also has an obligation to refrain from mining an electronic document” and “a lawyer who receives an electronic communication

280 may not examine it for the purpose of discovering the metadata embedded within it.” Ala. For- mal Op. 2007-02; Ariz. Ethics Op. 07-03.

The Maine and Florida Bars prohibit a recipient from reviewing metadata in an effort to obtain confidential information that the recipient should reasonably know was not intentionally communicated. Me. Op. 196; Fla. Ethics Op. 06-02.

The West Virginia Bar opined that a receiving attorney should not review the transmitted information if the attorney has actual knowledge that it was inadvertently disclosed; instead, the receiving attorney should contact the “sending lawyer to determine whether the metadata includes work-product confidences.”

The New Hampshire Bar found that Rule 9.4(b) imposes an obligation on the receiving attorney not to review or mine for metadata if inadvertently sent, which it is presumed to be, and shall promptly notify the sender and not examine the materials.

The Colorado Bar follows a similar approach unless the recipient “knows or reasonably should know” that the metadata contains or constitutes confidential information, in which case that lawyer must contact the sending attorney and attempt to resolve the matter.

c. We’re Not Sure, So Be Careful.

The Pennsylvania Bar lets the receiving lawyer use his/her discretion whether to review metadata on a “case-by-case” basis, keeping in mind duties under Rules 1.1-1.4, which includes zealous representation. While not “carte blanche to mine for metadata”, the receiving lawyer: “(a) must then determine whether he or she may use the data received as a matter of substantive law; (b) must consider the potential effect on the client’s matter should the lawyer do so; and, (c) should advise and consult with the client about the appropriate course of action under the circumstances.” http://web2.westlaw.com/result/documenttext.aspx?mt=Massachusetts&db=ETH- TP&eq=Welcome%2fMassachusetts&ss=CNT&scxt=WL&rp=%2fWelcome%2fMassachusetts %2fdefault.wl&cxt=DC&fmqv=c&cfid=1&service=Search&rltdb=CLID_DB11268313214221 &utid=1&rlti=1&cnt=DOC&query=METADATA+%2f250+MALPRACTICE&vr=2.0&method =TNC&sri=247&fn=_top&origin=Search&rlt=CLID_QRYRLT93705313214221&sv=Split&n= 5&sskey=CLID_SSSA19284313214221&rs=WLW13.01 - FNF44355907133

d. Where Does Massachusetts Come In?

Massachusetts has not directly addressed the issue, but the issue of the inadvertent transmission of confidential information (in the days “before” metadata” was well known), was somewhat determined in Purcell v. Dist. Att’y for Suffolk Dist., 676 N.E.2d 436 (Mass. (1997) holding that certain disclosed information even though no longer confidential was still privileged and so in- admissible at trial. There is no Rule of Professional Conduct directly on point, but Rules 1.6 and 4.4 will be brought to bear. The MBA Ethics Committee advised that a lawyer should represent a client “zealously within the bounds of the law” and should, therefore, refuse to return the materi-

281 al, even when a claim of privilege is made. The lawyer should retain the material and let the court sort it out. Op. 99-4. But, in Mira, Inc. v. O’Brien, Mass. Super. Ct. No. 02-5545-H, 11/3/03, 2003 Westlaw 22283384, now-Justice Gants ruled that privilege had not been waived, but the attorney was permitted to retain the privileged letter, to depose the author about it, and if it appeared “that the inadvertently disclosed letter contained information that established the falsity of the testimony at trial, … to approach the Court at sidebar and ask permission to use the privileged letter to impeach the purported false testimony, much as a prosecutor may use a suppressed confession to cross-examine a defendant who testifies at trial and offers evidence contrary to his confession.” (Massachusetts has generally applied a rule of waiver of privilege that asks whether the person who sent the material took “adequate steps … to ensure” the confidentiality of the material that was nevertheless inadvertently released. See, In re Reorganization of Electric Mutual Liability Ins. Co., Ltd. (Bermuda), 425 Mass. 419, 423 (1997).

5. Prophylactic Planning and Remedial Steps

Given the duty to take care before sending,

1. Scrub or protect documents first.

2. Inform clients not to disseminate electronic versions of documents in “Word” format to anyone other than counsel.

3. Save and send a document in “pdf” format after having scrubbed the “Word” version.1

4. Consider confidentiality agreements and protective orders that include specific language that the recipient will not search for metadata and will return to the sender any document or any document with metadata, inadvertently sent.2

5. Consider doing a search for key terms to make sure that names or information that you would not want the “other side” to see are removed. For example, if you are reusing a form (and this happens a lot), make sure that the Jones P+S is not copied verbatim for the Smith P+S without removing all of the references to Jones and the metadata as to that document.

6. Many lawyers send along emails chains without first checking to remove your own client’s email address and other protected information such as prior content.

7. Place a disclaimer on all material communications that the documents are privileged, that no consent is being given to search for metadata or other inadvertently delivered information.

1 I recognize that there are pdf de-coder programs, but once a document is scrubbed and saved in pdf format, the metadata is not likely to be recovered at the other end. Regardless, if you have taken steps to scrub and convert to pdf format, those steps would, in my view, be reasonable. 2 The law on inadvertent disclosure is related to the metadata issue and is similarly quite divergent depending on the jurisdiction.

282 8. If the “horse has left the barn” when you learn of the inadvertent delivery, send an immediate request/demand to preserve confidentiality, a statement that privilege is not being waived and a request/demand to return the document immediately without saving a copy.

9. For litigation purposes, produce a privilege log immediately of the inadvertently delivered documents.

10. Propose other reasonable ways to rectify the inadvertent disclosure and, if need be, seek recourse from the Court on an emergency basis.

In 2002, the ABA added paragraph (b) to Model Rule 4.4 that a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Massachusetts has not yet adopted that rule.

The ABA has, for many years, taken the position that a lawyer who receives such information “should refrain from examining the materials and notify the sending lawyer.”

DC and Oregon Ethics Committees concluded that where “the receiving lawyer knows of the in- advertence of the disclosure before the documents are examined, the documents must be returned and the use of the inadvertently distributed information will be considered fraud in violation of Rule 8.4 (DC) and conduct prejudicial to the administration of justice (OR).

Because there is a wide variation in the substantive law governing inadvertent disclosure,3 the rule takes no position on “whether the lawyer is required to take additional steps, such as returning the original document, [or] … whether the privileged status of a document has been waived.” Comment [2] But three states (Arizona, Louisiana, and New Jersey) of the eight that have adopted the new ABA rule have added a requirement that the receiving attorney stop reading the document as soon as its nature is (or should be) understood. (The three states have slightly different

3 The three rules applied are discussed in Judge Young’s scholarly opinion in Amgen Inc. v. Hoechst Marion Rous- sel, Inc., 190 F.R.D. 287, 290 (D. Mass. 2000): (1) “Strict accountability,” sometimes called the “traditional rule”—The privilege disappears as soon as the privileged material has been revealed, no matter how the revelation took place. Publication even of stolen materials destroys the privilege. (2) “Never waived”—The document is still privileged. Only a conscious decision by the holder of a privilege can waive it. No error, however negligent, will suffice. (3) That delight of litigators everywhere, and the rule applied in Massachusetts, the “middle ground”—Did the person who sent the material take “adequate steps … to ensure” the confidentiality of the material that was nevertheless inadvertently released? In re Reorganization of Electric Mutual Liability Ins. Co., Ltd. (Bermuda), 425 Mass. 419, 423 (1997). This approach may focus less on traditional rules of waiver and more on whether a lawyer “has acted in such a way as to disentitle the client from invoking the privilege. See International Oil, Chem. & Atomic Workers Local 7-517 v. Uno-Ven Co., 1790 F.3d 779 (7th Cir. 1999) (noting that a ‘waiver’ of the privilege is sometimes found ‘in order to punish the person claiming the privilege for a mistake’).” Capra, Mis- taken Disclosure of Privileged Information, New York Law Journal, January 11, 2002.

283 formulations as to when the receiving lawyer should stop reading.) In addition, Louisiana and New Jersey require that the receiving attorney return the document on demand; Arizona requires only that the sending lawyer be given time to “take protective measures.”

Since Massachusetts has not adopted the new Model Rule, it does not provide us with any guidance. What is a Massachusetts lawyer to do when privileged information inadvertently appears? Let’s consider your options.

1. Do you have to notify the sending lawyer that you have received the letter?

Almost certainly, yes. At least, every decision and ethical opinion that has addressed the question has asserted that the receiving lawyer must (or should) notify the sending lawyer. (The question did not arise in MBA Opinion 99-4 because the inquiring lawyer had already given notice before contacting the ethics committee.) As discussed above, some ethics committees have opined that failure to give notice is a violation of the Rules of Professional Con- duct. Even if it is not, failure to give notice exposes the receiving lawyer to the risk of disqualification and sanction by the court.

2. May you read the letter and the memo?

This is more difficult to answer. The cases and ethical opinions that require a lawyer to stop reading analogize the discovery of inadvertently-disclosed material to discovery of a file left unguarded on counsel table or of a briefcase left behind. E.g., ABA Formal Opinion 92-368 (1992)4 It is clearly wrong to pry into an unguarded file or a forgotten briefcase. See Matter of Ebitz, 8 Mass. Att’y Disc. R. 77 (1992) (Dishonesty in violation of Mass. R. Prof. C. 8.4(c) and conduct prejudicial to the administration of justice in violation of Mass. R. Prof. C. 8.4(d); six-month suspension)

Is it equally wrong to read material provided by mistake? A lawyer may learn of the mistake in many ways. The sending attorney may discover the error and request return of the materials before they have been read. Equally, the nature of the documents may be such that it is clear on their face that they are privileged. See State Compensation Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 655 (Cal. App. 1999) (“claim summary forms, which by design and markings are clearly identifiable as containing confidential attorney-client communications”) In such circumstances, you should refrain from reading the privileged document or should stop reading until the question is resolved. You can either contact the sending attorney to verify that the document was sent intentionally or present the dispute to the court.

Of course, it will often be the case (as it was in MBA Opinion 99-4) that the receiving attorney reads the document before realizing that it is privileged. Equally often perhaps, the realization will take place part way through the reading. An attorney who encounters what seems to be a

4 On October 1, 2005, the ABA withdrew Opinion 92-368 because it conflicted with amended Model Rule of Pro- fessional Conduct 4.4(b), which is discussed below. ABA Formal Opinion 05-437 (2005)

284 discussion of wrongdoing—concealment of a witness, say, or the submission of false evidence— will realize that the document was sent to him or her by mistake. Must the attorney stop reading as soon as this realization strikes? There is no clear authority so requiring. There is at least one case, Mira, Inc. v. O’Brien, Mass. Super. Ct. No. 02-5545-H, 11/3/03, 2003 Westlaw 22283384, that may be authority to the contrary.

In Mira, the receiving lawyer appears to have realized that a letter provided to him in discovery was privileged before he read it. The letter was from his opponent’s chief executive officer and addressed to the corporation’s attorney. The receiving attorney “informed Mira’s counsel of its inclusion in the document submission and of [his] position that Mira’s attorney-client privilege had thereby been waived … [and] moved to compel Mira to produce all its otherwise privileged attorney-client communications.” Judge Gants characterized the receiving attorney’s reading of the document as “quite proper.” And reading the letter produced a substantial benefit for the attorney and his client. Although the court ruled that the privilege had not been waived (applying the “middle” rule; see footnote 3, above), the attorney was permitted to retain the privileged letter, to depose the author about it, and if it appeared “that the inadvertently disclosed letter contained information that established the falsity of the testimony at trial, … to approach the Court at sidebar and ask permission to use the privileged letter to impeach the purported false testimony, much as a prosecutor may use a suppressed confession to cross-examine a defendant who testifies at trial and offers evidence contrary to his confession.”

Contrast Rico v. Mitsubishi Motors Corp., 10 Cal. Rptr. 3d 601 (Cal. App. 2004), review granted, in which the court disqualified an attorney who had read and used privileged material despite his claim that the privileged material showed that the defense experts were lying. “Once the court determines that the writing is absolutely privileged, the inquiry ends. Courts do not make exceptions based on the content of the writing. Unlike with the attorney-client privilege, there is no crime-fraud exception to the attorney work product rule. The absolute attorney work product privilege is just that, absolute.” Id. at 616

In our increasingly-automated world, inadvertent disclosure is only a click away. It seems inevitable that the problem will increase, particularly in large and complex discovery cases. Many lawyers have found it prudent to stipulate in advance to “claw-back” agreements providing that material sent by mistake will be returned. See Adams & Tuohey, “Clawback Agreements Help Protect Privileged Documents,” NY Law J., February 2, 2004. Without such an agreement, the result is much less certain. Prudence suggests, however, that privileged material sent inadvertently should be returned without examination when that is feasible. The contrary view of MBA Opinion 99-4 is certainly a minority view and one that has been disavowed by the ABA. (See Comment [3] to Model Rule 4.4(b), which takes the position that a lawyer may return a document unread without violating the duty of zealous representation.) The majority view supports protection of privilege and treating other lawyers as we would have them treat us.

285 Section 3I

Discipline and Malpractice Standards ... When Rules Catch Up with Reality (“World Series” Edition)

Big Papi or Big Brother? Either way, the hammer is coming down. No more “Luddites Are Us” anti-computer store. Massachusetts Rule of Professional Conduct 1.1 states that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Fair enough.

Is it implied within the rule that a lawyer must have sufficient technological knowledge to be in compliance with that Rule? The ABA does not think so, because it recently adopted a new Comment 8 to Rule 1.1 that states as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Massachusetts has not yet adopted Comment 81 and, as with all rules of professional conduct, the Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and Scope of the Rules provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. If one is not technologically savvy enough to comply with the “requisites” under the Rule, and an error occurs, will that be sufficient for a malpractice plaintiff to demonstrate that a violation of that rule exists and, therefore, may be some evidence of the attorney’s negligence? To our knowledge, no such case has yet arisen in Massachusetts. But, with data privacy laws and e-discovery already in play, an additional guidepost is now on the landscape.

The risks are manifold - not only the potential for data being compromised, hacked or disseminated inadvertently thus violating Rule 1.6 and confidentiality, but also the more basic change in standard for not being computer savvy enough to function sufficiently to “keep up”. E-discovery is now contained within state court procedure rules. Incremental or seismic, cultural changes become rules changes which become standards of care. The risks extend to both disciplinary and

1 After the publication of this article, Massachusetts has since adopted Comment 8, effective July 1, 2015.

286 malpractice exposure. In Smith v. Lewis, 530 P.2d 589. 595 (Cal. 1975), the Court noted that “an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem”. In 1984, an article appeared with the title “Legal Malpractice: Does the Lawyer have a Duty to use Computerized Research?” Laura A. O’Cornell, 35 Fed. Ins. Counsel Q. 77 (1984). In Fiorentino v. Rapovort, 693 A.2d 208, 212 (Pa. Super. Ct. 1997) the Court stated that an “attorney will be deemed ‘negligent’ if he or she fails to possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances”. The 9th Circuit noted that that an attorney could have easily found a case by using LEXIS (Golden Easle Distrib. Cory, v. Burroughs Corp., 103 F.R.D. 124, 129 (N.D. Cal. 1984). rev’d, 801 F.2d 1531 (9th Cir. 1986)). The Federal District Court in Maryland noted in Massey v. Prince Georse’s County. 918 F. Supp. 905, 908 n. 4 (D. Md. 1996), chastised an attorney for not finding relevant information via a WestLaw search.

The risks have been extant for some time. And, now a possible extension of the standard of care is at the door. As they say in Paris computer cafes: It’s time to wake up and smell Les Bytes du Chocolate!

287 Section 3J

Ethics, Risk and Malpractice Avoidance (excerpts)

288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314

315 Section 3K

Loss Prevention/Malpractice Prevention/Bar Complaint— Review, Response, and Audit

316 317 318 319 320 321 322 323

324 Section 3L

You Mail, I Mail, We All Send Email

Are disclaimers in emails a necessary evil, a prudent and reasonable course of action or a bloody waste of time? Does anyone read them? Do they provide needed notice, disclosure or protection from creeping legal and societal ills? Here are two examples for your consideration:

1. Too Much, Too Little

Is there a conclusive movement away from the historic requirement of a formal, complete P+S Agreement when selling real estate? In McCarthy v. Tobin, 429 Mass. 84, 87 (1999), the Su- preme Judicial Court held that the controlling fact is the “intention of the parties” and that, even if a formal written agreement was not executed by the parties, that, “[i]f ... the parties have agreed upon all material terms, it may be inferred that the purpose of a formal document which the parties agree to execute is to serve as a polished memorandum of an already binding contract.” Id. {Emphasis added).

The evolutionary trend continued recently when, in a case of first impression, a Superior Court judge (Middlesex) applied McCarthy to find that an exchange of e-mails between buyer and seller of real estate inferred an intention to be bound to a contract. See Feldberg v. Coxall, 2012 WL 3854947 (Mass. Super.). In Feldberg, the Court allowed Buyer’s motion for endorsement of a lis pendens based upon an exchange of e-mails which included sufficiently material terms— purchase price, property description, potential closing date. Seller argued that the e-mails were insufficient to satisfy the Statute of Frauds, G.L. c. 259, § 1, which requires a contract for the sale of land to be in writing and signed by the parties. As the Court noted, “the rules of the road” are not yet written to bridge the 17th century statute of frauds and 2st century e-mail. So, seeking to construct a 4-lane highway, the Court found that the statute of frauds could be satisfied that there was a “writing” that was effectively “signed” by the parties. Said another way, if you live by electrons, you may die by electrons!

The Feldberg case sends the message that, if the parties communicate by e-mail, then their intent can at least be inferred that those communications will serve as a binding agreement without signing a formal written agreement. NB: The Uniform Electronic Transactions Act, G.L. c. 110G recognizes transactions between parties who have both agreed to conduct the transaction electronically and that an “electronic signature” satisfies the law. So, do Feldberg and the UETA mean that electronic signature blocks, among other things, are not necessary? In an age where business and negotiations are conducted electronically, how does one prevent the inference or

325 conclusion being drawn that there is a binding agreement prior to an “intended” formal written agreement being signed by the parties? What do you do with the “binding” language of an Offer to Purchase form, which McCarthy upheld?

Should your emails now contain another disclaimer that says something along the following lines (with thanks to Susan Larose and Richard Vetstein):

Emails sent or received shall neither constitute acceptance of conducting transactions via electronic means nor shall create a binding contract in the absence of a written contract signed by all parties, unless otherwise specifically stated and agreed to by a return email.

Or, do you want to go the other way?

This email shall bind you and your client in the transaction referred to above and your receipt of this email is evidence of your acceptance of all terms and conditions and shall constitute a binding contract in the absence of a fully signed written contract, unless specifically stated otherwise.

Said another way, forgetabout getting out of this one!!!!!!!!!!!!!!!!!!!!

Where, oh where, did my contract go?

2. I Spy With My Little Eye

I have been raising questions for a number of years about the evolution of privacy in the US and the world. As we use social and related media, the 20th century expectations of privacy are changing faster than protection of those expectations. For example, does making a clear choice in online privacy settings provide sufficient protection against disclosure or search? Is there a risk if an online or email account is hacked? The questions that we in the “legal ethics” community have been contemplating and a number of folks have been writing about—such as the article in 2010 in the Marquette Law Review, “The Fourth Amendment and the Brave New World of Online Social networking” coalesces as follows: “Is there now an illusion of privacy? Has the definition (i.e., the subjective expectation of privacy) been inextricably altered? Mark Zucker- berg said several years ago that online activity means that people no longer have an expectation of privacy—It is NO LONGER THE SOCIAL NORM. Is the right to be left alone permanently obviated by the new social media contract? So, if a social media post no longer resides within a reasonable expectation of privacy, let alone your care, custody and control, can access to such sites be held to be outside of 4th Amendment protections from unreasonable search and seizures?

As we know, after 9/11, President Bush issued an executive order that authorized the NSA to conduct surveillance of certain telephone calls without a FISA warrant. The issue has been raised anew recently. Do these realities create a new sense of exposure and liability for lawyers? Must we now take “reasonable” steps first to notify clients and others of the possibility of invasion of routine communications—hence the email disclosure? If we fail to do so, will we be charged

326 with breach of confidentiality by a less than gruntled client? Or, has the expectation of privacy been so eroded for so long that there is no need to connect these dots when engaged in privileged or confidential acts?

In light of the renewed disclosures on NSA activity, we have been considering reviving the following disclaimers for our emails:

“This email message, including any attachments that follow, was sent unencrypted. If you are concerned about confidentiality or privacy, such as the NSA PRISM program, please contact our office to discuss alternate delivery options for future communications,”

Answers may be few and far between. But, the conversation needs to begin anew.

327 Section 3M

“In-House” and “Out-House”

Many lawyers serve as “In House” counsel to corporations and other entities, a longstanding dual position as employee and inside counsel. Recently, the Massachusetts Supreme Judicial Court decided that, upon specific conditions, a law firm may designate one of its own members as “In- House” counsel to advise and represent the firm, including in connection with client-generated complaints, issue or claims.1

Benefits of having In-House counsel include ease and convenience of access to advice, lack of “direct” out of pocket cost (recognizing that every hour spent engaging inside counsel is an hour not spent on a billable event), knowledge of the real inner workings of the business (the firm) and Court-approval of the role.

Risks include inherent conflicts of interest, the disadvantage of putting in-house counsel at potential odds with one’s partners, the expenditure of time to get comprehensive and independent advice and the possible lack of the “independent” advice to the firm that outside counsel would and should provide. (Clients often say later—”Gee, whose interests were you protecting?” Em- powered by the Court’s decision, the reply is “Why, the law firm’s.” At which point, the client grumbles something about oxen being gored). While all law students are now required to take an ethics course in law school and then the MPRE exam, few lawyers deal with ethical issues and rules on a daily basis. So, weighing in the balance the measure of this case to your particular circumstance may lead to a conclusion that, while some law firms are equipped to designate appropriate in-house counsel to serve in this role, most are not.

We have proudly worn the mantle and served as “Out-House” counsel for many firms (solos to tall towers!) for many years. We have discussed these risks and benefits with our clients. Having had the Court put its imprimatur on in-house practice, we urge careful consideration about this newly-minted role. There is substantial disagreement within the national ethics bar whether the Massachusetts (and some other) decisions sufficiently insulate the firm and those acting as in- house counsel and whether, despite the Court’s ruling, it is still more beneficial to seek outside counsel advice which will be protected.

The attorney-client privilege applies to confidential communications between a law firm’s in-house counsel and the law firm’s lawyers, even where the communications are intended to

1 The national Association of Professional Responsibility Lawyers, of which James Bolan is a Past President, was one of the Amici on the side of permitting the privilege to be adopted/blessed.

328 defend the law firm from allegations of malpractice made by a current outside client. This holding is limited, in part, because “not every attorney in a law firm is its in-house counsel and not every communication within the firm is privileged”. Consequently, for the privilege to apply, four conditions must be met.

First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs.

Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.

Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm.

Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.

Fifth, size matters. For the “designation of an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs”, large firms regularly employ loss prevention counsel, conflicts counsel and partners who serve as ethics counsel and can, if sufficiently experienced, move into an in-house role. But, most law firms do not have the size, ability or expertise to employ a member in that role. Care must be taken, given the opening by the Court, to shoehorn someone into that position, not just because of the difficulty of the role and the substantial experience that in-house counsel must have, but that other conditions are equally difficult to satisfy.

Sixth, size still matters. “Where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.” The Court’s decision is, in essence, an analog to an internal “screen” (what used to be called a “Chinese Wall”). The larger the firm, the more segmented it is and can be, the more floors and offices exist to separate counsel and, thus, the easier it is to screen off conflicted members from non-conflicted members simply by virtue of size and space, computer access regimens and other restrictive access protocols. Most firms do not have the size or capacity to wall off its members, nor is it possible to do so in all but the very largest firms (and, even then, disqualification motions despite screens have been successful).

Seventh, size still really matters! “The time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm.” This is a substantially a business decision and large firms can more readily absorb or manage the indirect

329 costs of establishing and maintaining what is effectively a severable “inside law firm”. One real cost of placing one or more lawyers in the role of in-house counsel is that they run the risk of being conflicted out whenever an issue arises as to which the firm seeks or needs advice because the designated counsel has to “run the risk” of proving that she/he had not performed “any work on the particular client matter at issue or a substantially related matter”. Thus, counsel would be justifiably hesitant to advise the firm on any matter related to that client for fear of the conflict.

While one of the undecided issues is when in-house counsel is consulted before the client has “threatened litigation”, observant counsel is aware that smoke is starting to billow out and flames may someday follow. In that case, one of the risks is that the client will press to see all of the communications prior to the actual “threat of litigation” and the fight will be over whether they were or should be deemed to be “in contemplation” of litigation and, thus, also privileged.

Last, “as with all attorney-client communications, they must be made in confidence and kept confidential.” Thus, the age-old conundrum raises its head as to expectations and “unintended consequences” of the relationships within the firm. The client is the law firm. The partners who consult in-house counsel are doing so as the firm’s lawyer. The issue is not whether communications with in-house counsel are privileged. They are. But the facts disclosed are not privileged as they exist outside of the communication. This “push and pull” of interests becomes heightened if “blame” starts to be pushed to a responsible partner. Inside counsel is the firm’s lawyer and not the lawyer for any individual partner or associate. Inside counsel is not an “ombudsperson”. How are the lawyers who relied on the close relationships in the firm going to react in such circumstance? Do they need to be advised to seek separate and independent counsel to advise them? if so, when? Does all of this start to sound like an internal investigation as opposed to an internal relationship?

Some Practical Suggestions/Comments

1. Keep the roles separate—As we have advised corporate in-house counsel, keep the roles separate—one of the lawyers in the firm v. in-house counsel to the firm. Remember that the “client” is the law firm and not the individual attorneys in the firm so there is no detrimental reliance or expectation that legal advice is for the benefit of other than the firm.

2. Keep separate note pads—In-house counsel role has a set of note pads that say “Personal and Confidential—Attorney Client Privileged” on the top of each set of notes, memos, emails, letters.

3. Segregate electronic communications within the firm—Can you set up a separate privileged database or computer? If you send out an email to the lawyer seeking advice and it is in the server with access to all, how to you denote its privileged status?

4. Recording Time—How do you record the time everyone spends on the advice of counsel communications? Do you merge it with everything else? Do you not keep a record at all?

330 Section 3N

Fee Agreements and Related Administrative Documents

1. Client’s Fee Agreement (Litigation) provided by James S. Bolan 2. Records Management Policy provided by James S. Bolan

Note: Sample documents 4–13 are provided by Massachusetts Law Office Management Assistance Program (LO- MAP), an LCL, Inc. program. Unless otherwise indicated, all template forms in this collection are Massachusetts- specific.

LOMAP makes no representation or warranties of any kind, express or implied, concerning compliance with the Rules of Professional Conduct or the adequacy or enforceability of these sample forms. The following template forms should not be taken wholesale, and used “as is” in your practice; instead, these template forms should serve as guides to develop. Fee agreements and related administrative documents should reflect the needs of you, your specific clients, and your practice (including consideration for your practice areas). You must exercise your independent legal and business judgment when using these forms.

Hourly Fee Agreements: 3. Client’s Fee Agreement (Litigation) 4. Client’s Fee Agreement (Transactional Engagement) 5. Client’s Fee Agreement (Engagement with Possible Litigation to Follow)

Contingent Fee Agreements 6. Contingent Fee Agreement, Form A 7. Contingent Fee Agreement, Form B

Alternative Fee Agreements 8. Flat Fee Agreement

Nonengagement and Disengagement Letters 9. Non-Engagement Letter 10. Disengagement Letter (Closing Letter)

Alternative Clauses 11. Fee Agreement—Document Retention/Destruction at the End of the Representation Under 1.15[f] and 1.16[d] and [e] 12. Fee Agreement—Special Provision for Internet/Cloud Services

331 332 333 334 335

336 CLIENT'S FEE AGREEMENT (Litigation)

I, xxxxxxxxxxxxxxxxx, of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, (the "Client"), hereby agrees to retain the law firm of -Massachusetts, (the "Firm"), in connection with xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

1. The Client hereby agrees to reimburse the Firm for all costs and disbursements incurred by it and to pay for all legal services performed on the Client's behalf at the hourly rates set forth herein below.' This Agreement is not contingent upon the outcome of the above-referenced litigation.

2. a. The Firm hereby acknowledges receipt of Five Thousand Dollars ($5,000.00) as an initial retainer deposit in this matter, and, in consideration of the payment thereof, agrees to provide legal services in connecdon therewith. In the event that the sum of money being held as a retainer falls below the amount of Two Thousand Five Hundred Dollars ($2,500.00), the Firm will notify the Client and the Client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Five Thousand Dollars ($5,000.00). The Client shall complete, execute and retarn to the Firm, along with this Fee Agreement, IRS Form W-9, a copy of which is attached hereto.

b. In the event that the matter proceeds beyond the initial response or the scope ofthe initial engagement changes, the retainer shall then be increased to the amount of Ten Thousand Dollars ($10,000.00). In the event that the new retainer falls below the amount of Five Thousand Dollars ($5,000.00), the client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Ten Thousand Dollars ($10,000.00).

c. In the event that a determination is made by any party, the Client, or the Firm, that the matter is likely to proceed to a trial or hearing, the retainer shall then be increased to the amount of Twenty Thousand Dollars ($20,000.00). In the event that the new retainer falls below the amount of Ten Thousand Dollars ($10,000.00), the client shall, on each occasion, as requested, replenish all amounts necessary to bring the Client's retainer account balance to Twenty Thousand Dollars ($20,000.00).

d. In the event that the money being held as a retainer is insufficient to satisfy any of the Firm's invoices, the Client shall promptly pay such invoices in full, and replenish the retainer. The Client understands that no precise estimate of legal fees can be given. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than the retainers. The Firm's present estimate to complete this representation is not known.

In addhion, in the event that the Firm, in its sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy

'These rates are subject to the Firm's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 20 337 any of the Firm's prior or fiiture anticipated invoices, the Client shall provide a fmancial statement or other evidence of available assets by which to secure the payment of fiiture legal fees and Client shall execute instmments, such as a promissory note, revolving credit agreement and/or a mortgage or other security, to guarantee and secure the payment of legal fees. The Firm will inform the Client of hs determination to seek security and present the client with the forms to be signed and that Client will have the opportunity in the ten (10) days after being informed to seek advice from independent counsel prior to the execution of such instmment(s) and the provision of such security. The Client shall have the ten (10) days fiom the presentation by the Firm of such forms to be signed. The failure of the Client to execute such instruments within the ten (10) day period, will permit the Firm, after notice to the Client, to terminate the representation of the Client, as allowed by any applicable mles or laws.

3. ft is agreed by and between the Client and the Firm that the retainer paid herein by the Client shall be applied against legal services acmally performed, and disbursements made, by the Firm for the Client, which services shall be charged at the following current hourly rates^:

Primary lawyer(s)

Other lawyers Partners Associates

Paralegals

4. It is understood and agreed by and between the Client and the Firm that the bills/invoices rendered, including a final bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

• the time and labor required, the novelty and difficulty ofthe questions involved and the skill requisite to peiform the legal services properly;

• the likelihood, if apparent to the Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the Client or by the circumstances;

^These rates are subject to the Firm's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 21 338 • the nature and length of the professional relationship with the Client;

• the experience, reputation and ability of the lawyer or lawyers performing the services; and,

• whether the fee is fixed or contingent.

Invoices will be submitted to the Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer. All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly, to make the payments as set forth herein or to promptly replenish the retainers, will entide the Firm, after notice to the Client, to apply to the Court for leave to withdraw from representing you, subject to the requirements of any applicable Rules of Professional Conduct or mles ofthe Court. The Client agrees that the fmal bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship, as allowed by any applicable rules or laws.

5. The Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., fding fees, witness fees, travel and mileage costs, sheriffs and constable's fees, expenses of depositions, including transcript costs, investigative expenses, expert witness fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, fde retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval, excepting costs associated with deposition transcripts, before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consult with and/or retain an expert witness or consultant, the Firm will notify the Client and obtain the Client's consent to consult with or retain such expert witness and/or consultant for the benefit of the Client. In such an event, the Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

6. In the event that, upon either the completion of the within matter, or, the termination of the Firm's representation ofthe Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by the Client, the balance shall be refunded to the Client by the Firm.

7. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: Appearances (including travel time to and fi'om Court, or other administrative, juridical or investigative entity, department or body); conferences, whether with the Client, opposing counsel, lawyers within the Firm or potential witnesses; telephone calls; correspondence; legal research and wrhing, depositions, drafting and filing legal documents; reading and reviewing of file materials and preparation for any hearings and trial. Telephone calls and correspondence shall be billed at either actual time or a minimum of one-tenth (1/10) of one hour.

8. In some cases the Court awards counsel fees to one party and orders the other party to

Sample Fee Agreements Package 22 339 pay the amount awarded; such awards are solely in the discretion of the Court and cannot be relied on with certainty. Also, in some cases, if there is a settlement agi-eed to by any of the parties thereby avoiding a contested trial, the settlement contract may provide that one ofthe parties will contribute an agreed amount towards the other party's legal expenses. In the initial stages of a case it is impossible to predict whether either of the above situations will materialize and therefore no representation is made in this Agreement that any contribution by the other party will be obtained towards the Clienf s legal expenses. In the event, however, that any such contributions are obtained for the benefit of the Client, the amount in question will be credited against the Firm's final bill to the Client.

9. If the Client and Firm are unable to resolve their differences on the question of any fee, and/or expenses, they hereby agree to make a good faith effort at resolving their disputes. If the dispute cannot be resolved, the Client and Firm agi-ee to place the matter before the Fee Arbitration Board ofthe Massachusetts Bar Association and agree to be bound by the decision.

10. If the Firm is discharged by the Client prior to the conclusion of this representation, the Firm is enthled to be then compensated for the value of the services rendered to the Client under this Agreement up to the time of discharge, and for its reasonable expenses and disbursements.

11. The Firm and the Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agreement is not based upon any such promises or anticipated resuhs.

TfflS IS A LEGALLY BDTOING CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAINED TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKING.

12. The Client has read this Agreement carefully and understands the terms hereof

SIGNED IN DUPLICATE

Date xxxxxxxxxxxxxxxxxxxxxxxxx

By:

Sample Fee Agreements Package 23 340 TRANSACTIONAL ENGAGEMENT

CLIENT'S FEE AGREEMENT

, of (the "Chent"), hereby agree to retain the law firm of ^ Massachusetts (the "Firm"), in connection with

2. a. The Firm hereby acknowledges receipt of Five Thousand Dohars ($5,000.00) as an initial retainer deposh in this matter and, in consideration of the payment thereof agi-ees to provide legal services in connection therewith. In the event that the sum of money being held as a retainer falls below the amount of Two Thousand Five Hundred Dollars ($2,500.00), the Firm will notify the Client and the Client shall, on each occasion, as requested, replenish all amounts necessary ("refresher") to bring the Client's retainer account balance to Five Thousand Dollars ($5,000.00). The Client shall complete, execute and retum to the Firm, along with this Fee Agreement, IRS Form W-9, a copy of which is attached hereto.

b. In the event that the scope of the engagement anticipated by the Firm at the inception of the attorney-client relationship increases or changes in any way, or should the Client fail to keep the appropriate retainer balance, the Firm reserves the right, upon thirty (30) days notice to the Client, to increase the base amount ofthe retainer and any refresher.

c. In the event that the money being held as a retainer is insufficient to satisfy any ofthe Firm's invoices, the Client shall promptly pay such invoices in full, and replenish the full retainer. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than the retainers. The Firm's present estimate to complete this representation is not known. The Client understands that no precise estimate of legal fees can be given.

3. It is agreed by and between the Client and the Firm that the retainer paid herein by the Client shall be applied against legal services actually performed, and disbursements made, by the Firm for the Client, which services shall be charged at the following cuirent hourly rates^:

Primary lawyers

Other lawyers Partners

These rates are subject to the Firm's amiual increases as of each January 1, beginning with [insert date]. ^ These rates are subject to the Finn's annual increases as of each January 1, beginning with [insert date].

Sample Fee Agreements Package 25 341 Associates

Paralegals

4. It is understood and agreed by and between the Client and the Firm that the bills/invoices rendered, including a fmal bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

« the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly;

• the likelihood, if apparent to the Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the Client or by the circumstances;

• the nature and length of the professional relationship with the Client;

• the experience, reputation and ability ofthe lawyer or lawyers performing the services; and,

• whether the fee is fixed or contingent.

Invoices will be submitted to the Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer. All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly, to make the payments as set forth herein or to promptly replenish the retainers, will entitle the Firm, after notice to the Client, to apply to the Court for leave to withdraw from representing you, subject to the requirements of any applicable Rules of Professional Conduct or mles of the Court. The Client agrees that the final bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship, as allowed by any applicable rules or laws.

5. The Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., filing fees, travel and mileage costs, investigative expenses, expert fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, file retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consuh with and/or retain an expert or consultant, the Firm will notify the Client and obtain the Client's consent to consuh with or retain

Sample Fee Agreements Package 26 342 such expert and/or consultant for the benefit of the Client. In such an event, the Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

6. In the event that, upon either the completion of the within matter, or, the termination ofthe Firm's representation of the Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by the Client, the balance shall be refunded to the Client by the Firm.

7. It is understood and agreed that the hourly time charge for legal services includes, but is not limited to, the following: travel time to and from meetings; conferences, whether with the Client, opposing counsel, lawyers within the Firm or potential witnesses; telephone calls; correspondence; legal research and writing, depositions, drafting and filing legal documents; reading and reviewing of file materials and preparation for any meetings or conferences. Telephone calls and correspondence shall be billed at either actual time or a minimum of one-tenth (1/10) of one hour.

8. In addhion, in the event that the Firm, in its sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy any ofthe Firm's prior or fUmre anticipated invoices, the Client shall provide a financial statement or other evidence of available assets by which to secure the payment of future legal fees and Client shall execute instmments, such as a promissory note, revolving credit agreement and/or a mortgage or other security, to guarantee and secure the payment of legal fees. The Firm will inform the Client of hs determination to seek security and present the client with the forms to be signed. In such event, the Client shall have the ten (10) days from the presentation by the Firm of such forms to be signed to seek advice from independent counsel prior to the execution of such instmment(s) and the provision of such security. The failure of the Client to execute such instmments within the ten (10) day period will permit the Firm, after notice to the Client, to terminate the representation ofthe Client, as allowed by any applicable mles or laws.

9. If the Client and Firm are unable to resolve their differences on the question of any fee, and/or expenses, they hereby agree to make a good faith effort at resolving their disputes. If the dispute cannot be resolved, the Client and Firm agi-ee to place the matter before the Fee Arbitration Board of the Massachusetts Bar Association, or some other fee dispute resolution body, and agree to be bound by the decision.

10.. If the Firm is discharged by the Client prior to the conclusion of this representation, the Firm is entitled to be then compensated for the fair value of the sei-vices rendered to the Client up to the time of discharge, and for its reasonable expenses and disbursements.

11. The Firm and the Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agi-eement is not based upon any such promises or anticipated resuhs.

THIS IS A LEGALLY BINDING CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAR^D TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKING.

Sample Fee Agreements Package 27 343 (mm 12. The Client has read this Agreement carefully and understands the terms hereof.

SIGNED IN DUPLICATE

Date

By:

Sample Fee Agreements Package 28 344 ENGAGEMENT WITH POSSIBLE LITIGATION TO FOLLOW

CLIENT'S FEE AGREEMENT

I, (the "Client"), hereby agree to retain the law firm of , Massachusetts (the "Firm") in connection with

1. Client hereby agrees to reimburse the Firm for all costs and disbursements incurred by it and to pay for all legal services performed on Clienf s behalf at the hourly rates set forth herein below. This Agreement is not contingent upon the outcome ofthe above-referenced litigation.

The Firm hereby acknowledges receipt of Ten Thousand Dollars ($10,000.00) as an initial retainer deposit for initial consultation and related services in regard to this matter, and, in consideration of the payment thereof, agrees to provide legal services in connection therewith. In the event that the sum of money being held as a retainer falls below the amount of Five Thousand Dollars ($5,000.00), the Firm will notify Client and Client will pay, on each occasion, as requested, additional retainers in the amount of Five Thousand Dollars ($5,000.00). In the event that the money being held as a retainer is insufficient to satisfy any of the Firm's invoices. Client shall promptly pay such invoices in full, and replenish the retainer. Client understands that no precise estimate of legal fees can be given. The total amount of attorneys' fees, costs, and disbursements may be substantially more, or less, than this initial retainer. The Firm's present estimate to complete this representation is not known. The Client shall complete, execute and return to the Firm, along with this Fee Agi-eement, IRS Form W-9, a copy of which is attached hereto.

2. It is agreed by and between Client and the Firm that if it becomes apparent to the Firm that the matter will proceed to trial, then, upon that determination or conclusion by the Firm, the retainer shall be increased to Twenty Thousand Dollars ($20,000.00), and shall be paid immediately upon request. After this increase of retainer, if the amount of money being held as a retainer falls below Ten Thousand Dollars ($10,000.00), the Finn will notify Client and Client will pay, on each occasion requested, additional retainers in the amount of Ten Thousand Dollars ($10,000.00).

3. It is not intended that this Agreement cover any appeal that may be filed following a trial by any party.

5. In addition, in the event that the Firm, in hs sole discretion, determines that the money being held as a retainer or the estimate of legal fees to be incurred in the matter is insufficient to satisfy any ofthe Firm's prior or future anticipated invoices, Client shall provide a financial statement or other evidence of available assets by which to secure the payment of future legal fees and Client shall execute instruments, such as a promissory note, revolving credit agreement and/or a mortgage or other security instmments, to guarantee and secure the payment of legal fees. The Firm will inform Client of its determination to seek security and present Client with the forms to be signed and that Client will have the opportunity in the ten (10) days after being so informed to seek advice fiom independent counsel prior to the execution of such instrument(s) and the provision of such security. Client shall have the ten (10) days from the presentation by the Firm

Sample Fee Agreements Package 30 345 of such forms to be signed. The failure of Client to execute such instmments within the ten (10) day period, will permit the Firm, after notice to Client, to terminate representation of Client, as allowed by any applicable mles or laws.

6. It is agreed by and between Client and the Firm that the retainer paid herein by Client shall be applied against legal services actually performed, and disbursements made, by the Firm for Client, which services shall be charged at the following current hourly rates:

(a) Primary lawyer

(b) Other lawyers Partners Associates

(These rates are subject to the Firm's annual increases as of each January 1, beginning with January 1, 2008.)

7. It is understood and agreed by and between Client and the Firm that the bills/invoices rendered, including a final bill, shall, in addition to the time expended, take into account the following factors described by the Supreme Judicial Court as to the reasonableness of fees for legal services:

(a) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly;

(b) the likelihood, if apparent to Client, that the acceptance of the particular employment, will preclude other employment by the lawyer;

(d) the amount involved and the resuhs obtained;

(e) the time limitations imposed by Client or by the circumstances;

(f) the nature and length of the professional relationship with Client;

(g) the experience, reputation and ability of the lawyer or lawyers performing the services; and,

(h) whether the fee is fixed or contingent.

Invoices will be submitted to Client from time to time (generally monthly) and the outstanding sum of time charges and disbursements of the Firm will be deducted from the retainer.

Sample Fee Agreements Package 31 346 All interim billings shall be due and payable upon receipt unless otherwise stated. Failure to pay interim billings promptly or to make the payments as set forth herein will permit the Firm, after notice to Client, to terminate the representation of Client, subject to applicable mles of Court and any applicable Rules of Professional Conduct. Client agrees that the final bill submitted by the Firm for legal fees and costs will be due and payable at the conclusion of the matter or at the termination of the Attorney - Client relationship.

8. Client agrees to assume and pay for all out-of-pocket disbursements incurred in connection with this matter (e.g., fding fees, witness fees, travel and mileage costs, sheriffs and constable's fees, expenses of deposhions, including transcript costs, investigative expenses, expert witness fees, outside consultant fees, charges for photocopies, including any outside photocopying, postage. Federal Express, courier, file retrieval, Lexis-Nexis and/or any other computer research, and other incidental expenses); and the Firm agrees to obtain Client's prior approval, excepting costs associated with deposition transcripts, before incurring any specific disbursement expected to be in excess of Five Hundred Dollars ($500.00). In the event that the Firm determines that it is appropriate to consult with and/or retain an expert witaess or consultant, the Firm will notify Client and obtain Client's consent to consult with or retain such expert witness and/or consultant for the benefit of Client. In such an event, Client agrees to pay for all costs and fees associated with the retention of such expert and/or consultant.

9. In the event that, upon either the completion ofthe within matter or the teimination of the Firm's representation of Client, the total cost of the legal services performed and disbursements made by the Firm shall be less than the amount of any retainers paid by Client, the balance shall be refunded to Client by the Firm.

10. In some cases the Court awards counsel fees to one party and orders the other party to pay the amount awarded; such awards are solely in the discretion of the Court and cannot be relied on with certainty. Also, in some cases, if there is a settlement agreed to by any of the parties thereby avoiding a contested trial, the settlement contract may provide that one of the parties will contribute an agreed amount towards the other party's legal expenses. In the initial stages of a case it is impossible to predict whether either of the above situations will materialize and therefore no representation is made in this Agreement that any contribution by the other party will be obtained towards Client's legal expenses. In the event, however, that any such contributions are obtained for the benefit of Client, the amount in question will be credited against the Firm's final bill to Client.

11. If the Firm is discharged by Client prior to the conclusion of this representation, the Firm is entitled to be then compensated for the fair value of the services rendered to Client up to the time of discharge, and for hs reasonable expenses and disbursements.

12. The Firm and Client state that the Firm has made no promise or guarantee as to the successful resolution or eventual outcome of this matter, and that this Agreement is not based upon any such promises or anticipated results.

13. Client acknowledges and agrees that he/she/h has been apprised of the possible benefits and the risks and detriments associated with litigation, including, but not limited to the

Sample Fee Agreements Package 32 347 w MPLI possibility that the attomeys fees and costs contemplated by this Agreement may exceed the monetary value to or the amount ofthe claims and/or defenses to be litigated and that, upon execution of this Agreement, Client assumes hill responsibility for that risk as a part of entering into this Agi-eement.

14. [CONSIDER ADDING PARAGRAPH REGARDING FILE DESTRUCTION AT THE END OF THE REPRESENTATION UNDER 1.15[f| AND 1.16[d] AND [e]

TfflS IS A LEGALLY BINDhMG CONTRACT. ASK TO HAVE EACH TERM YOU DO NOT UNDERSTAND FULLY EXPLAR^D TO YOU SO THAT YOU UNDERSTAND THE AGREEMENT YOU ARE MAKDsfG.

15. Client has read this Agreement carefully and understands the terms hereof

SIGNED IN DUPLICATE

CLIENT

Date

[FIRM]

By:

Sample Fee Agreements Package 33 348 From SJC Rule 3:07 - Massachusetts Rules of Professional Conduct Rule 1.5

CONTINGENT FEE AGREEMENT, FORM A'

To be Executed in Duplicate

Date: , 20_

The Cliem (Name) (Street & Number) (City or Town) retains the Lawyer (Name) (Street & Number) (City or Town) to perform the legal sei-vices mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is recovery of damages, whether by settlement, judgment or otheiwise.

(3) The lawyer agrees to advance, on behalf of the client, all out-of-pocket costs and expenses. The client is not to be liable to pay court costs and expenses of litigation, other than from amounts collected for the client by the lawyer.

(4) Compensation (including that of any associated counsel) to be paid to the lawyer by the client on the foregoing contingency shall be the following percentage of the (gross) (net) [indicate which] amount collected. [Here insert the percentages to be charged in the event of collection. These may be on a flat rate basis or in a descending or ascending scale in relation to the amount collected.] The percentage shall be applied to the amount of the recovery not including any attorney's fees awarded by a court or included in a settlement. The lawyer's compensadon shall be such attorney's fees or the amount determined by the percentage calculation described above, whichever is greater.

(5) [IF APPLICABLE] The client understands that a portion ofthe compensation payable to the lawyer pursuant to paragraph 4 above shall be paid to [Name of Attorney entitled to a share of compensation] and consents to this division of fees.

(6) [IF APPLICABLE] If the attomey-client relationship is terminated before the conclusion of the case for any reason, the attorney may seek payment for the work done and expenses advanced before the termination. Whether the lawyer will receive any payment for the work done before the termination, and the amount of any payment, will depend on the benefit to the

^ See Rule, attached.

Sample Fee Agreements Package 35 349 client ofthe services performed by the lawyer as well as the timing and circumstances of the termination. Such payment shall not exceed the lesser of (i) the fair value of the legal services rendered by the lawyer, or (ii) the contingent fee to which the lawyer would have been endtled upon the occurrence of the contingency. This paragraph does not give the lawyer any rights to payment beyond those confeiTed by existing law.

(7) [USE IF LAWYER IS SUCCESSOR COUNSEL] The lawyer is responsible for payment of former counsel's reasonable attomey's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses.

This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court.

WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures Signatures of client and lawver (To client)

(Signature of client) (To lawyer)

_ (Signature of lawyer)

Sample Fee Agreements Package 36 350 From SJC Rule 3.07 - Massachusetts Rules of Professional Conduct Rule 1.5

CONTINGENT FEE AGREEMENT, FORM B'

To be Executed in Duplicate

Date: , 20_

The Client (Name) (Street & Number) (City or Town) retains the Lawyer (Name) (Street & Number) (City or Town) to perform the legal services mentioned in paragraph (1) below. The lawyer agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) Costs and Expenses. The client should initial next to the option selected.

(i) The lawyer agrees to advance, on behalf ofthe client, all out-of-pocket costs and expenses. The client is not to be liable to pay court costs and expenses of litigation, other than from amounts collected for the client by the lawyer; or

(ii) The client is not to be liable to pay compensation or court costs and expenses of htigation otherwise than from amounts collected for the client by the lawyer, except as follows:

(4) Compensadon (including that of any associated counsel) to be paid to the lawyer by the client on the foregoing contingency shall be the following percentage of the (gross) (net) [indicate which] amount collected. [Here insert the percentages to be charged in the event of collection. These may be on a flat rate basis or in a descending or ascending scale in relation to the amount collected.] The percentage shall be applied to the amount of the recovery not including any attorney's fees awarded by a court or included in a settlement. The lawyer's compensation shall be such attomey's fees or the amount determined by the percentage calculation described above, whichever is greater. [Modify the last two sentences as appropriate if the parties agi-ee on some other basis for calculation.]

(5) [IF APPLICABLE] The client understands that a portion of the compensation payable to the lawyer pursuant to paragraph 4 above shall be paid to [Name of Attorney entitled to a share of compensation] and consents to this division of fees.

' See Rule, attached.

Sample Fee Agreements Package 37 351 (6) [IF APPLICABLE] If the attomey-client relationship is terminated before the conclusion of the case for any reason, the attomey may seek payment for the work done and expenses advanced before the termination. Whether the lawyer will be entitled to receive any payment for the work done before the termination, and the amount of any payment, will depend on the benefit to the client of the services performed by the lawyer as well as the timing and circumstances of the termination. Such payment shall not exceed the lesser of (i) the fair value ofthe legal services rendered by the lawyer, or (ii) the contingent fee to which the lawyer would have been entitled upon the occurrence of the contingency. This paragraph does not give the lawyer any rights to payment beyond those conferred by existing law.

(7) [USE IF LAWYER IS SUCCESSOR COUNSEL] Payment of any fees owed to former counsel. The client should initial next to the option selected.

(i) The lawyer is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses; or

(ii) The client is responsible for payment of former counsel's reasonable attorney's fees and expenses and the cost of resolving any dispute between the client and prior counsel over fees or expenses.

This agreement and its performance are subject to Rule 1.5 of the Rules of Professional Conduct adopted by the Massachusetts Supreme Judicial Court.

WE EACH HAVE READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures Signatures of client and lawyer (To client)

(Signature of client) (To lawyer)

_ (Signature of lawyer)

Sample Fee Agreements Package 38 352 :miMll!1i £ This flat fee agreement form is provided as a sample only. You must review Massachusetts Rules of Professional Conduct to determine if the form is appropriate for your use in Massachusetts.

DISCLAIMER: The State Bar of Wisconsin makes no representations or warranties of any kind, express or implied, concerning compliance with the rules of professional conduct or the legal adequacy or enforceability of the accompanying sample or any part of it. These samples are intended for use only by lawyers admitted to practice in Wisconsin, who are expected to utilize their own independent legal and business judgment when evaluating the forms for their use.

This information should be used as a guide only. You alone are responsible for your contracts.

FLAT FEE AGREEMENT

1. Anonymous Lawyer, S.C., Attorney at Law (hereinafter "Attorney"), is engaged to represent (hereinafter "Client"), in a matter in County. Attomey and Client agree that Attorney is retained to perform the following legal sei-vice in connection with the matter: [INSERT DESCRIPTION OF SCOPE OF REPRESENTATION].

2. Client agrees to pay a flat fee of $ for this service. That fee, upon payment, becomes the property of the law firm. It will be deposited in Attorney's business account, rather than the firm's trust account, and Client hereby specifically agrees that Attomey may do so.

3. Client will be responsible for costs incuiTcd in the representation, such as witness and subpoena fees, process server's fees, investigator's fees, mileage for travel, parking, etc., that Attorney expects to incur in this matter and Client agrees to pay $ as an inhial advance for costs. Attomey will deposit the cost advance in Attorney's tmst account and disburse as needed to pay costs incurred on behalf of client. Client further agi'ees to pay, upon demand, any additional costs or disbursements incurred or advanced on Clienf s behalf.

4. In the event Client fails to pay Attomey's fees and/or costs and disbursements pursuant to this agreement, Attorney may withdraw as counsel upon written, timely notice to Client, subject to the court's authorization to withdraw.

5. At the conclusion of the representation, Attorney will provide client with a written accounting of all fees in the matter and a refund of any advanced fees that have not been earned and advanced costs that have not been used. If Attorney's representation terminates prior to the performance of the agreed-upon service. Attorney will provide client with a written accounting of the fees earned and costs incurred, and a refund of any unearned fees and/or unexpended costs.

Sample Fee Agreements Package 43 353 3AMPLE 6. If Client disputes the amount of fees or refund, if any, of uneamed fees, Client must notify Attomey, in writing, of the dispute within 30 days of the date of the fmal accounting. Client has the right to demand binding fee arbitration through available fee arbitration program to resolve the dispute. The parties agi'ee to be bound by the decision. Client is not required to agree to binding arbitration and may elect any other legal means to settle the dispute. If Client agrees to binding arbitration, Attomey must submh the dispute to binding arbitration within 30 days of receiving timely written notice of the dispute. 7. This agreement does not cover or apply to the fding of, prosecution of or defense of an appeal, in which case a new representation and fee agreement must be executed.

8. Storage of Files: Due to space limitations, h is our firm pohcy that files be stored in our storage area for seven (7) years after conclusion of a particular matter. After seven (7) years, the file is ordinarily destroyed. If you should desire a copy of the file, or any part of it, after the conclusion of this matter, it will be your responsibility to make a specific written request for those documents within that seven (7) year period. If no such request is made, the file may be destroyed after seven (7) years in accordance with firm policy.

9. By signing this agreement, I agree that I have had an opportunity to discuss the agreement with Attorney, understand the agreement, and have had an opportunity to ask questions and have received an explanation for any questions that I had.

Dated this day of , 2007, at Hometown, Wisconsin.

ANONYMOUS LAWYER, S.C.

By: Anonymous Client Anonymous Lawyer, Attomey-at-Law

Sample Fee Agreements Package 44 354 NON-ENGAGEMENT LETTER

(May be sent by certified mail, with a return receipt requested)

DATE

NAME ADDRESS CITY, STATE & ZIP

RE: [SUBJECT]

Dear:

The purpose of tbis letter is to confirm, based on our conversation of [date], that [insert firm name] will not represent you in [describe matter] because [insert reason for declination, if possible and appropriate to state it]. Our decision to decline this case should not be construed as a statement ofthe merits of your case.

You should be aware that any action in this matter must be fded within the applicable statute of limitations. I strongly recommend that you consult with another lawyer concerning your rights in this matter.

You should immediately confer with another attorney for assistance in order to pursue this matter. The Massachusetts Bar Association Lawyer Referral can assist you in fmding a lawyer if you do not have the name of available. They can be contacted by telephone at 866-MASS-LRS or online by clicking "Need a Lawyer?" at www.massbar.org.

This will also confirm that I am not charging you for any legal service or advice, and we have not provided any advice to you [if that is correct]. Finally, all documents which you have provided to us have been returned to you.

Very truly yours.

Enclosures

Sample Fee Agreements Package 46 355 - SM^LE DlSENGAGEUffiNT LETTER - CLOSING LETTER

RE: [Subject]

Dear [Name]:

We wish to take this opportunity to thank you for allowing us to represent you in the [describe] matter. In order to tie up all the loose ends, we will [outline any final matters you will take care of]. In addition, you will need to [outline everything the client is responsible for at this time].

Since this matter is now closed, we suggest that you keep all your copies of information relating to the matter in a safe place where you can easily locate them. We are closing our file, which will be kept for a period of [10 years]. We are returning your original [records, documents] related to your case.

We hope this matter has been concluded to your satisfaction. We would appreciate your filling out the enclosed evaluation questionnaire. The information you provide will help us improve our services.

Thank you for allowing us to represent you in this matter. If we can be of further assistance on this or any other matter, please let us know.

Very truly yours.

[Insert Lawyer's Name] [Insert Firm's Name]

Sample Fee Agreements Package 48 356 FEE AGREEMENT - DOCUMENT RETENTION/DESTRUCTION AT THE END OF THE REPRESENTATION UNDER 1.15[f] AND 1.16[d] AND [e]

Upon termination of this engagement, all papers, documents and other materials supplied to us by you in connection with that engagement will be retumed to you upon your written request. You may also request copies of all discovery documents, pleadings and other papers fded with or by the court or sei-ved by or upon any party. Those papers and documents will be delivered to you upon payment ofthe cost of copying the requested documents. In addition, you may request and receive copies of documents and other things prepared in the course of litigation, such as lawyers' notes, internal memoranda, legal and factual research, investigative reports and other work product prepared in the course of the engagement, but only ifyou have paid for the work performed.

This firm is not a document repository and we reseive the right to destroy or otheiwise dispose of documents and other materials in the file within a reasonable time after termination of this engagement. We have no obligation to retain files relating to this engagement beyond a reasonable period of time sufficient to permh you to request documents as set forth above. Under certain circumstances there may be exceptions and we may be required by the law to retain documents, but otherwise, there will be no exception unless we specifically agree in writing to retain and store documents.

Sample Fee Agreements Package 50 357 FEE AGREEMENT - SPECIAL PROVISION FOR INTERNET/CLOUD SERVICES

We use Internet and cloud based services for storing information and fdes, sharing information with clients and experts and for ease of access. These internet based services may include, among others, tracking appointments and other calendar events, storing contact information, tracking time, storing fdes and documents, sharing files with you and other authorized persons or entities and file synchronization services to keep this information up to date.

Whether we store this information in our physical offices or with an internet/cloud based service, we have an obligation to protect confidential information. Specifically, Supreme Court Rule 20:1.6 Confidentialitv requires that we not reveal information relating to our representation of you without your informed consent and we are therefore advising you of our intent to use these services in your representation. In addition to this Rule, there are a number of entities that have issued ethics opinions on the use of internet/cloud services by lawyers in representing their clients. These opinions state that using internet/cloud services by lawyers are acceptable so long as the firm takes reasonable steps to prevent the disclosure of confidential information. These steps include reviewing the various policies, procedures and security safeguards that an internet/cloud provider has in place. We follow the recommendations that have been made in one or more of these ethics opinion, but we would be remiss in not stating that no one can provide an absolute guarantee that a disclosure will not happen whether information is stored in our office or on the internet. What we can guarantee is that we will take all reasonable steps to insure that such a disclosure does not occur. We do this by conducting a thorough review of each and every internet/cloud provider that we use. Only after this review and the determination that a disclosure of confidential information is very unlikely are we satisfied that the service complies with our obligations to represent you. We understand though if you are not comfortable with our use of these services in representing you. If you prefer that we do not use these services in your representation, please cross out this provision and initial in the margin.

Sample Fee Agreements Package 52 358 Section 3O

359 Section 3P

Revisions to the Rules of Professional Conduct: What You Need to Know

360 Section 3Q Sample Potential Conflict Disclosure Letter—Civil Litigation

361 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 2

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

We have discussed and given careful consideration to the issues posed by simultaneous representation of both of you in defending this civil complaint. We have discussed that independent counsel representing one of you might want to pursue a strategy of shifting blame to the other. I understand that you have consulted with independent counsel regarding the advantages and disadvantages of simultaneous representation and you both agree that the risks posed by simultaneous representation are outweighed by the benefits which include, but are not limited to, your goal of trying to achieve a more favorable outcome with a united defense and to control the costs of defending the lawsuit. [INSERT MORE DETAIL HERE CONCERNING YOUR DISCUSSION REGARDING THE PARTICULAR FACTS OF THE CASE]. In my opinion, there is not an impermissible conflict with respect to the anticipated testimony, or incompatibility of your positions in relation to your defenses given your stated objectives.

Based upon our discussions, each of you understand that multiple party representation assumes that each of you will have a greater responsibility for decisions than when each client is independently represented. If at a future date the two of you were unable to agree with respect to a particular aspect of the litigation, you would need to resolve your differences on your own or with the assistance of independent counsel. With that understanding, you each have indicated that you have separate counsel with whom to confer if, and when, such separate advice of counsel might become necessary and you understand that the fees and expenses of such counsel are separate and independent of the retainer agreement with me.

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

362 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 3

Each of you also understand that the duty of loyalty is to both of you and that although information is kept confidential from third parties, as between the two of you there is no privileged or confidential information in a joint representation situation. Thus, I could not honor a request by one of you to keep certain information secret from the other. Further, such a request by one of you could create a potential conflict of interest that would require me to withdraw from representing both of you. If a potential conflict required my withdrawal as counsel, you would each incur the expense of hiring new counsel. Based upon my discussions with each of you, you each have agreed to deal openly and honestly with one another on all matters relating to the joint representation and do not anticipate any situation where either of you would request that some matter which is material to the representation would be kept from the other. However, if litigation were to eventuate between you, the privilege would not protect each of your communications with me from the other.

Further, based upon my discussions with each of you, neither of you possesses information or knowledge that would make you adverse to each other in this civil litigation. While unlikely in this case, the inherent risk when representation of multiple clients is undertaken includes the possibility that, at some future date, a conflict will arise between the parties that requires me to withdraw as counsel for one or both of the parties. By comparison, the benefits to both of you from joint representation in this civil litigation are significant. The joint representation will eliminate unnecessary duplication of work.

In the event that a future conflict arises in circumstances described in the preceding paragraphs, or any other circumstance, and the ethical rules require me to withdraw as counsel for one party, to the extent permitted by the Rules of Professional Conduct, I may continue to represent one of you individually.

Accordingly, I request that each of you sign and return to me the acknowledgment copy of this letter to confirm your understanding of the foregoing and your agreement that: (a) I may represent each of you in the civil litigation identified above; and (b) each of you has been afforded the opportunity to seek the advice of independent counsel.

As stated, you have the right to, and should, consult with independent counsel regarding your consent to multiple party representation and the within potential conflict disclosure.

Your anticipated attention to this matter is greatly appreciated.

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

363 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER− CIVIL LITIGATION

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 4

Very truly yours,

Christa A. Arcos CAA\

Acknowledged and agreed this _____ day of ______, 2016

By: ______

JOHN SMITH

Acknowledged and agreed this _____ day of ______, 2016

By: ______

JANE JONES

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

364 Section 3R Sample Potential Conflict Disclosure Letter—Joint Estate Plan

365 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER−JOINT ESTATE PLANNING

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 2 example, if the two of you were unable to agree with respect to a particular aspect of your joint estate plan, you would need to resolve your differences on your own or with the assistance of independent counsel hired at your own expense. Another potential conflict could arise if one of you wishes to change a part of the estate plan that you both agreed on without the consent of the other. I could not advise either of you concerning any such change, nor could I assist one of you in implementing such a change or the other in opposing the change. [INSERT MORE DETAIL HERE CONCERNING YOUR DISCUSSION REGARDING THE PARTICULAR FACTS OF THE CASE]. Based upon our discussions, each of you understand that joint representation assumes that each of you will have a greater responsibility for decisions than when each client is independently represented. By comparison, the benefits to both of you from joint representation are significant and will eliminate unnecessary duplication of work.

Please consider carefully whether you wish to proceed with joint representation. If you decide to proceed, each of you must sign the waiver below and forward it to my office. If you have any questions regarding either the potential conflict or the waiver, please feel free to contact me.

Very truly yours,

I, John Jones, acknowledge that I have read and understand the disclosures set forth above and further that I have the right to seek the advice of independent counsel concerning my decision to consent to joint representation. I have fully considered the consequences of joint representation and I wish to proceed.

Signed this ___ day of ______, 2016. ______John Jones

I, Jane Jones, acknowledge that I have read and understand the disclosures set forth above and further that I have the right to seek the advice of independent counsel concerning my decision to consent to joint representation. I have fully considered the consequences of joint representation and I wish to proceed.

Signed this ___ day of ______, 2016. ______

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

*The author acknowledges the contribution of Mary Schmidt, Esq. of Schmidt & Federico, P.C. in the preparation of this sample letter.

366 CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER−JOINT ESTATE PLANNING

PRIVILEGED & CONFIDENTIAL RE: CONFLICT DISCLOSURE LETTER [DATE] Page 3

Jane Jones

CHRISTA ARCOS, ESQ.−SAMPLE POTENTIAL CONFLICT DISCLOSURE LETTER

*The author acknowledges the contribution of Mary Schmidt, Esq. of Schmidt & Federico, P.C. in the preparation of this sample letter.

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CJE Opinion No. 2016-01 Facebook: Using Social Networking Site

February 16, 2016

You have asked the CJE to advise you on the extent to which the principles and guidelines set forth in CJE Op. No. 2011-6 (“Facebook: Using Social Networking Website”) remain valid under the Massachusetts Code of Judicial Conduct in effect as of January 1, 2016 ("Code" or "2016 Code").

The fundamental principles of the 2016 Code are consistent with those of the predecessor Code. A judge must, at all times, uphold and promote the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety. A judge must, at all times, maintain the dignity of judicial office and aspire to conduct that ensures the greatest possible public confidence in the judge's own conduct and in the legal system. A judge must avoid engaging in extrajudicial activities that are reasonably likely to interfere with the proper performance of the judge’s judicial duties or to lead to recurrent disqualification of the judge. A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens.

While the underlying principles remain the same, we are aware of the rapid growth and evolution in the use of electronic social media, such as Facebook. Judges newly-appointed to the bench may arrive with a Facebook account containing many hundreds of “friends,”1 so we must offer guidance that addresses both the status of pre-existing friends and the possible acquisition of new friends. It is also generally known today that Facebook members use that social media platform in very different ways. Some users post regularly, while others post rarely or never. Some users limit their Facebook friends to family and close, personal friends, while others have many ac- quaintances among their Facebook friends. Some users accept the vast majority of friend requests they receive, while others screen them carefully. Some users regularly review the postings and profiles of their friends, while others do not.

Moreover, we have the benefit of reviewing the many ethics opinions that have been issued by other jurisdictions, as well as the American Bar Association, since 2011. Almost without excep-

1 As of this writing, a Facebook friend is someone that the host (hereafter “the judge”) has given permission to view the judge’s Facebook page. Either the judge has sent a friend request that was accepted, or vice versa. While Face- book permits a judge to employ a variety of privacy settings to differentiate among Facebook friends, these settings may be used without the knowledge of the Facebook friend or others. Also, a judge may “unfriend” a Facebook friend; this results in the (now former) friend's loss of access to the judge’s page.

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tion, these opinions all note that a judge’s use of electronic social media (many of these opinions are not limited to Facebook) is, while permissible, “fraught with peril.” We agree.

Disagreement among jurisdictions continues, however, concerning whether a judge may be a Fa- cebook friend with a lawyer who may appear before the judge. Several jurisdictions (e.g., Con- necticut, Florida, and Oklahoma) prohibit judge-lawyer Facebook friendship on the grounds that it can convey the impression that the lawyer is in a special position to influence the judge. Sever- al other jurisdictions permit it, having concluded that Facebook friendship does not by itself convey the impression of being in a special position to influence the judge. Many jurisdictions have not specifically addressed the subject, and California appears to be the only jurisdiction to have specifically considered when a judge may need to “unfriend” a Facebook friend. As always, we are aware that jurisdictions in which judges stand for election often permit a degree of interaction with lawyers that is not permitted in Massachusetts.

I. RELEVANT PORTIONS OF THE CODE

Because Facebook is a medium for communication, a judge’s Facebook use may implicate many Code provisions, including the following:

• Rule 1.2, which requires that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

• Rule 1.3, which requires that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

• Rule 2.3, which requires that a judge perform all duties of judicial office without bias, prejudice or harassment.

• Rule 2.4, which requires that a judge “shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment,” and “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”

• Rule 2.9, which prohibits ex parte communications.

• Rule 2.10, which demarcates the restrictions on judicial speech on pending and impending matters.

• Rule 2.11, which sets forth the circumstances when a judge shall disqualify himself or herself.

• Rule 3.1, which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.

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• Rule 4.1, which prohibits a judge from participating in political and campaign activities.

Improper use of Facebook may also implicate other provisions of the Code, such as the prohibitions on solicitation in Rule 3.7 and on practicing law in Rule 3.10.

II. GENERAL GUIDELINES

A judge who uses Facebook must avoid violating the Code’s restrictions, including those enumerated above. This requires a judge to be cautious concerning the judge's Facebook communications, that is, to think before engaging in electronic speech. A judge must avoid conduct that may interfere with the duties of judicial office (e.g., making improper comments on pending or impending matters, engaging in ex parte communications, suggesting that any person or party has special access to the court) or conflict with the dignity of judicial office (e.g., posting inappropriate photos). A judge must avoid any conduct that suggests that any person or organization is in a position to influence the judge. A judge must not use Facebook to endorse (e.g., "like" or "follow") commercial entities or political candidates, or otherwise violate the Code's restrictions on abusing the prestige of judicial office and participating in political activity.

Moreover, a judge must consider all of the judge's Facebook communications to be potentially public and, once made, wholly outside of the judge's control. Postings, including comments on other’s posts, may be transmitted without the judge’s permission or knowledge to unintended recipients, and Facebook communications may be taken out of context or relayed incorrectly. Facebook communications may be saved indefinitely.

The above guidelines are all consistent with CJE Op. No. 2011-6. We depart from that Opinion, however, when it comes to the monitoring and control that we may reasonably expect a judge to exercise over the judge’s Facebook friends. A judge must not, of course, authorize others to de- pict the judge or the judiciary in a manner that negatively impacts the integrity or impartiality of the judiciary. However, we are aware that a Facebook user often has no knowledge concerning the communications made by Facebook friends, and do not believe that a reasonable person would consider a judge to have endorsed a Facebook friend's communication unless the judge has so indicated by taking some affirmative action (e.g., "liking," "following," commenting, or reposting). If, however, a judge becomes aware that a Facebook friend's communications negatively impact the integrity or impartiality of the judiciary, a judge must "unfriend" that person. Similarly, a judge may not reasonably be expected to monitor all postings and comments on a Facebook page that the judge "likes" or "follows," but if the judge becomes aware of content that negatively influences the integrity or impartiality of the judiciary, the judge must stop "liking" or "following" that page.

We also part ways with CJE Op. No. 2011-6 because we do not believe that the Code requires a judge who uses Facebook to conceal the judge's judicial identity. A judge's appropriate use of Facebook should not threaten the dignity of judicial office, constitute an abuse of the prestige of judicial office, or otherwise violate the Code. It is reasonable to assume that a judge's Facebook friends will be aware of the judge's judicial office, and the Code governs a judge's personal as

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well as professional life. A judge may, of course, choose not to identify himself or herself as a judge on Facebook and may request that others do the same. Indeed, there may be sound reasons apart from ethical considerations for a judge to refrain from identifying his or her judicial role on social media -- such as the judge's concerns over the personal safety of the judge or the judge's family members. More generally, we recommend that judges consider carefully the benefits and attendant risks of being Facebook friends with more than a carefully-circumscribed circle of family and close friends.

III. LAWYERS AS FACEBOOK FRIENDS

The issue of a judge’s being a Facebook friend with lawyers is complex, particularly as the degree to which Facebook friendship signifies genuine personal friendship varies widely. Nonethe- less, we agree with the conclusion of CJE Op. No. 2011-6 that a lawyer who is a Facebook friend with a judge may appear to others to be in a special position to influence the judge. Even the most casual of Facebook friends may, for example, acquire personal information about the judge (e.g., celebration of a family event, a vacation destination) that could be used to convey the impression that the Facebook friend has special knowledge about and access to the judge.

In our judgment, the Code prohibits a judge from being Facebook friends with any attorney who is reasonably likely to appear before that judge. This bars a judge from making friend requests to or accepting friend requests from any lawyer reasonably likely to appear before the judge. This conclusion also requires that a judge review the judge's Facebook friends and "unfriend" lawyers who are reasonably likely to appear before the judge. If a judge knows2 that a lawyer appearing before the judge is a former Facebook friend, the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification. See Rule 2.11, Comment [5].

Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge. Because of the wide variability in the nature of Facebook friendships, disqualification may or may not be required. The scope of the Facebook friendship is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is ultimately unwarranted, the judge should both "unfriend" the lawyer and disclose on the record the existence and nature of the Facebook friendship. See Rule 2.11, Com- ment [5].

IV. CONCLUSION

Although a judge may use Facebook, the Code of Judicial Conduct limits the manner and extent of the judge's participation. Because of the presumptively public nature of Facebook communications, a judge must ensure that the judge's Facebook use does not undermine public confidence in

2 The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

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the judge or the judiciary. To uphold public confidence in the judicial system, a judge must not be Facebook friends with a lawyer who is reasonably likely to appear before the judge.3 4

3 The same standards applicable to a judge's Facebook friendship with a lawyer also apply to others who are reasonably likely to appear before the judge in an adversarial role, such as law enforcement personnel, expert witnesses, and parties. 4 Social media changes rapidly. A judge who uses Facebook is expected to stay reasonably informed about changes to that social networking service and, as appropriate, reassess whether and how those developments might impact the judge's permissible Facebook use.

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CJE Opinion No. 2016-08 LinkedIn: Using Social Networking Site

September 6, 2016

You have asked the CJE whether you may accept Linked in requests from attorneys who appear before you. You have also asked whether you must disconnect from Linked In connections you may have with attorneys who appear before you.

Your question requires us to consider whether our analysis and advice in Letter Opinion No. 2016-01, Facebook: Using Social Networking Site, is applicable to Linked In. We believe that the same overarching principles and concerns stated in Op. 2016-01 apply to all forms of social media that are currently available. Different types of social media networking may, however, pose distinct issues due to their features and the nature and extent of the audience with access to content posted by the judge.

Linked In is primarily a business-oriented social networking site, although some Linked In users post personal updates on and send personal messages through their Linked In accounts. A Linked In user, like a Facebook user, creates a personal profile. The Linked In user may then invite others "to connect" and respond to invitations "to connect" sent by others. Affirmative replies lead to the establishment of a "connection." Users may also "like" a connection's updates and achievements, endorse a connection's skills, and post recommendations. These actions will generally be visible on the profile page of the connection (although a Linked In user may choose not to post endorsements and recommendations). Linked In's default settings permit each user to view each connection's entire list of connections and vice versa. This is considered one of the most useful aspects of Linked In; a Linked In user may ask a connection (a first-order connection) to introduce the user to one of the connection's connections (a second-order connection). While Linked In resembles Facebook by requiring a person's affirmative response to connect with another, many if not most Linked In users seek to grow their number of connections so as to increase their business network. Moreover, Linked In user profiles are generally available to any other Linked In user (even if not a connection) who logs onto the Linked In website and enters the name of any person with a Linked In profile.

In our judgment, and consistent with Op. 2016-01, a judge who uses Linked In may not be connected with any attorney who is reasonably likely to appear before that judge. This conclusion requires a judge to reject requests to connect with and to disconnect from lawyers who are reasonably likely to appear before the judge1. Because of the prevalence of professional recommen-

1 This requirement also applies to parties or witnesses reasonably likely to appear before the judge.

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dations and endorsements of professional skills that appear on many Linked In profiles, discon- nection and disclosure are necessary to protect the independence, integrity, and impartiality of the judiciary. Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows2 to be a Linked In connection appears before the judge. The existence and nature of the Linked In connection (e.g., whether, while the judge was a practicing attorney, the judge had posted a recommendation or endorsement on the profile page of this lawyer) is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is unwarranted, the judge should both disconnect from the lawyer on Linked In and disclose on the record the existence and nature of the Linked In connection. See Rule 2.11, Comment [5]. If a judge knows that a lawyer appearing before the judge is a former Linked In connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted. See Rule 2.11, Comment [5B].

As the use of social media continues to grow, we again emphasize judges' obligations under the Code of Judicial Conduct, including the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in their professional and public lives; maintain the dignity of judicial office at all times; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. Judges must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. Each judge who uses social media must take steps to minimize the likelihood that the manner in which that judge uses social media would lead a reasonable person to question the judge's impartiality.

Judges must, of course, be aware that all social media communications may become public. See, e.g., In the Matter of Archer (Alabama Court of the Judiciary, August 8, 2016) (judge conducted what he regarded as "private" Facebook communications with a Facebook friend who made a copy of these communications and shared them with a reporter). There may also be sound reasons, apart from ethical considerations, for a judge to exercise restraint when using social media, such as the judge's concerns over the personal safety of the judge or the judge's family members. As we stated in Op. 2016-01, judges inclined to use social media should carefully weigh the risks and benefits.

2 The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

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CJE Opinion No. 2016-09 Twitter: Using Social Networking Site

November 22, 2016

You have an active Twitter account, and have requested advice concerning your continuing use of Twitter. In general, the same overarching principles and concerns stated in Letter Op. 2016- 01 and Letter Op. 2016-08 apply to all forms of social media that are currently available. Different types of social media pose distinct issues, however, due to their features and the nature and extent of the audience with access to content posted by the judge. We therefore begin with an overview of how Twitter functions, before turning to the relevant ethical rules that are potentially implicated by your particular use of Twitter.

I. TWITTER

Twitter is a social network that permits a user (anyone who has created a Twitter handle and posts to a Twitter account) to create and share information in the form of tweets. Tweets may be up to 140 characters and may include images or videos. Because of this element of brevity, Twitter is sometimes referred to as a "microblog." The subject of a user's posts are limited only by the user's imagination.

Twitter is meant to be shared; users follow selected other users. Each Twitter user has a homepage that includes a "feed"; the feed displays the stream of tweets a user receives from all Twitter accounts that user follows. A user may choose to post selected tweets from the feed; this is known as retweeting. When a user retweets, the twitter handle of the user who created the tweet is displayed. Unless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed. A user may also "like" others' tweets.

Twitter users generally seek widespread public dissemination of their posts. A user's posts (tweets and retweets) are viewed by others in one of two ways. Most commonly, a user's posts will show up on the feed of any person who has chosen to follow that user. A user's posts are also publicly available to any person who visits Twitter.com (whether or not a registered Twitter user) and enters the user's name. Although a user may take steps to limit access to the user's Twitter account1, that is rarely done, and you have not done so.

1 This is known as a "protected account"; in such an account, the user's posts, the identities of those a user follows, and the identities of those who follow a user, are not visible to the public. However, as with other forms of social media, a Twitter user must assume that all communications are potentially public.

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II. CODE REQUIREMENTS

As we noted in our opinions concerning Facebook and Linked In, judges in Massachusetts are not prohibited from using social media, but their use must comply with their obligations under the Code of Judicial Conduct (Code). These include the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in one's professional and personal life; maintain the dignity of judicial office; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. The Code applies to judges in their private as well as public spheres, and a judge must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge's impartiality.

Specific Code provisions relevant to the use of Twitter include the following:

• Rule 1.3, which requires that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”

• Rule 2.2, which requires that a judge shall uphold and apply the law, and perform all duties of judicial office fairly and impartially, regardless of a judge's unique background and personal philosophy

• Rule 2.3, which requires that a judge perform all duties of judicial office without bias, prejudice or harassment.

• Rule 2.9, which prohibits ex parte communications.

• Rule 2.10, which places restrictions on judicial speech on pending and impending matters.

• Rule 2.11, which sets forth circumstances in which a judge must disqualify himself or herself.

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• Rule 3.1, which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.

• Rule 3.10, which provides that a judge may not give legal advice to others.

• Rule 4.1, which prohibits a judge from participating in political and campaign activities.

III. YOUR TWITTER ACCOUNT

Your Twitter account announces that you are an active judge.Your Twitter handle is the word "judge" followed by your surname, and numerous tweets include a photo of you wearing your judicial robe2.Your posts are publicly available; you have not limited access to your account, and your posts, the accounts that you follow, and the identities of your followers are available to be seen by the public at large.

The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious. The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts3. In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes. If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge's opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts. In addition, as to each piece of information revealed by the judge's Twitter account (whether it is a tweet, a retweet, a "like," the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge's impartiality.

IV. YOUR TWITTER POSTS

Many of your Twitter posts fall into certain categories, which we consider below. In the case of retweets, we consider both the content and the source of the posts. Our answers are intended to illuminate the general application of various Code provisions. Each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge's individual circumstances will be consistent with the Code. A judge must, for example, always consider whether a particular post or communication would be improper in light of cases pending before that judge and that judge's typical caseload.

2 We do not offer an opinion today on the use of a Twitter account by a judge who does not disclose his or her occu- pation as a judge, other than to note that the Code, of course, applies to judges in their private as well as public spheres. We also do not offer an opinion today on a judge’s use of a private or restricted Twitter account. 3 The risk is heightened because courts have official Twitter accounts, which are used for outreach, education, and information. See http://www.mass.gov/courts/social-media-policy.html

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• Posts that share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges). Much of this information is in the nature of retweets from bar associations, law schools, courts, and other organizations and institutions dedicated to maintaining high standards and professionalism among the bench and bar. These posts are consistent with the Code.

• Posts that advise trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination). Purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not. You must make certain that the posts do not reflect your reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person. Avoiding a close temporal proximity between the time that you observe the behavior and the time that you post a tweet on that subject will help ensure that such posts are perceived to be purely educational. Your posts must, of course, offer only practice tips and not legal advice.

• Posts that report on selected cases decided by other courts, including the Massachusetts Su- preme Judicial Court and the United States Supreme Court. These posts often report court decisions concerning racial discrimination, police misconduct, or both. Some concern issues, such as assessing the credibility of police officers, which you confront on a regular basis.

• Reporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise your impartiality. To avoid conduct that a reasonable person may regard as demonstrating partiality, you must take certain pre- cautions when reporting on cases. Tweets or retweets must be from official or neutral sources such as court websites or libraries.You must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly- charged legal issues. Reports even by "mainstream media" should be avoided, as such reports may contain commentary or reaction favoring one point of view.

• Posts intended to reveal the existence of racism and implicit bias in the courts. We are, of course, aware that Massachusetts court leaders comment on and are taking steps to address these important concerns. Nonetheless, caution is required when posting on controversial social or legal issues that may come before you in the course of your judicial duties. Posts must serve a legitimate educational or informational purpose, and you must avoid posts that individually or as a pattern would lead a reasonable person to conclude you have a predisposition or bias that calls your impartiality into question.

• Posts that detract from the dignity of the judiciary and the court system. Examples include excerpts from an examination in which a defendant used profanity when addressing the judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing. A reasonable person may perceive these posts to be needlessly offensive, or as

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making light of behavior by litigants who may have mental health problems. Posts of this nature must be avoided.

• Posts that include photographs of litigants, attorneys, court personnel and other judges. In some instances, you post photographs that appear to show litigants, attorneys, court personnel, and judges in your courtroom or lobby. In other instances, you have posted photos that include children. Privacy and safety concerns require that you obtain consent from any person (or from a parent, in the case of a minor) whose image you post, unless you are retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.

• Posts that generally reflect pride in your personal characteristics, background, and achievements. These posts reflect acknowledgement of and pride in your personal characteristics, circumstances in your background, and accomplishments, and are not indicative of personal bias or prejudice. It is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge's ability to interpret and apply the law fairly and impartially4. These posts are consistent with the Code.

We also address the issue of Twitter accounts that you follow. Because your Twitter account is publicly accessible, the list of accounts you follow is readily available to your followers as well as anyone who visits your account at Twitter.com. Additionally, pop-up notices occasionally call attention to those you follow, even if you do not retweet from those accounts. Consequently, you must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.

V. CONCLUSION

As we observed at the outset, the same overarching considerations apply to all forms of social media, but different types of social media may raise distinct issues and require distinct cautions. The use of Twitter poses special challenges, especially where the judge maintains a public, unrestricted account, and posts as a judge. For the reasons stated above, in some respects your current use of Twitter is consistent with the Code, but in others, it is not.

4 Courts have conclusively rejected the repugnant view that a judge’s gender, race, or ethnicity is evidence that the judge cannot administer the law fairly. See e.g., MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33, 37 (2d Cir. 1998) (a suggestion that a judge cannot administer the law fairly because of the judge's racial and ethnic herit- age is extremely serious and should not be made without a factual foundation going well beyond the judge`s membership in a particular racial or ethnic group); Commonwealth of Pennsylvania and Raymond Williams v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155, 181 (E.D. Pa. 1974) (Judge A. Leon Hig- ginbotham famously observed that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations”).

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What’s in a Statement? Truth and Accuracy in Preparing and Executing Sworn Documents

by Christa A. Arcos

December 2004

It is Friday afternoon and you are an associate preparing an emergency motion for an ex parte real estate attachment in a pending Massachusetts Superior Court lawsuit for your firm’s most important client. The client had notified your firm earlier in the week that the defendant had executed a purchase and sale agreement to transfer a commercial property the following Tuesday at 10:00 a.m. If this commercial property is sold, the client believes that the proceeds will disappear and that there will be no other assets from which to satisfy a potential judgment in the pending lawsuit. You speak with the client by telephone at 3:00 p.m. on Friday afternoon and read the affidavit to him. He verifies its content; however he is in his car speaking to you by cell phone and will not have access to a fax machine within the next hour. The client demands that the motion and affidavit be filed immediately. Accordingly, he authorizes you to sign his name and to file the motion and affidavit before the close of business that day.

Pursuant to Rule 4.1(f) and (h) of the Massachusetts Rules of Civil Procedure and Superior Court Rule 9A(a)(1), the motion must be supported by an affidavit signed under the penalties of perjury. Can you sign the client’s name to the affidavit in support of the motion? The short and une- quivocal answer is, no.

When specifically authorized to do so, it is a commonly accepted practice for a lawyer to sign another individual’s name to a letter, pleading or motion, along with the lawyer’s initials. How- ever, the same is not true with respect to an affidavit or any other pleading or document signed under the penalties of perjury. The purpose of such an affidavit is to present the sworn statement of the client, not the lawyer. When you sign a client’s name to a document under the penalties of perjury, you are also misrepresenting your signature to be that of the client. Your client’s authorization does not cure this problem.

Mass. R. Prof. C. 8.4, in relevant part, provides that it is professional misconduct for an attorney to:

(d) engage in conduct that is prejudicial to the administration of justice; . . .

380 (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

Signing the client’s name to this affidavit and filing it in court would constitute a violation of these rules. You would also be making an intentional misrepresentation to the court in violation of Rule 3.3(a)(1), which prohibits making a false statement of material fact or law to a tribunal. See Matter of Molloy, SJC No. BD-2003-067 (November 5, 2003)(three-month suspension for, among other misconduct, signing or directing someone else to sign the client’s name to an affidavit and then filing it with the court). Even if the affidavit were not going to be filed in court or used in litigation, signing another’s name to a document under the penalties of perjury would still be a misrepresentation in violation of Mass. R. Prof. C. 8.4(c).

What if the associate in this hypothetical had signed the client’s name to the affidavit and then added his own initials, indicating to the court that it was he, the attorney, and not the client that had signed the affidavit? Although there would then be no misrepresentation concerning who signed the affidavit, the document obviously has not been signed under oath by the putative signatory, as required. The court may reject the filing, which potentially could create other problems for the associate and the client.

Misrepresentations in sworn documents filed with a court can result in discipline even where the attorney is not the actual signatory and even if those misrepresentations do not relate to the substance of the litigation. In Matter of Cross, 15 Mass. Atty Disc. R. 157 (1999), a lawyer was publicly reprimanded for filing a return of service with the court that she knew or should have known was not true or correct. On the last day of the 120-day time limit for service, and unable to find a constable, the lawyer decided to serve the complaint herself. She and a friend drove to the corporate defendant’s office, where the lawyer left a copy of the complaint while the friend remained in the car. The lawyer filled out the return of service and directed her friend to sign it, thereby implying that the friend had made service at the corporate defendant’s office.

Exigent circumstances are not a defense to signing a client’s name to a sworn document. Similar- ly, the constraints of a busy schedule will not excuse the attorney’s signing a client’s name to a sworn document. In Matter of Guinane, SJC No. BD-2004-0038 (March 8, 2004), an attorney received a one-month suspension after he prepared and signed an affidavit in his client’s name to support a motion to suppress evidence in a criminal case. In that case, the motion had to be filed in court within seven days of the hearing and the attorney found himself “too busy to drive sixty- five miles” to obtain his incarcerated client’s signature.

What then should you do when faced with the impossibility of obtaining your client’s signature to an affidavit or other sworn statement prior to the expiration of an impending deadline? The most straightforward option is to file a motion to extend the deadline so that you will have sufficient time to meet with the client and obtain his or her signature. The other available options may vary from case to case. If permitted by the particular court, and preferably by agreement with opposing counsel, you can file an unsigned affidavit with the understanding that you will substi- tute or supplement it with a signed affidavit on the day of the hearing.

381 In other instances, lawyers have filed affidavits of counsel, making statements based upon “information and belief.” However, anytime you file an affidavit of counsel, you run the risk of becoming a witness in the case, which obviously is its own problem. It is also imperative that you not disclose privileged or confidential information and that you read the affidavit to the client, and review its content together, before it is filed. In Guinane, the attorney not only prepared and signed the client’s affidavit, but also did so without discussing the content of the affidavit with the client.

In our hypothetical, your options are limited. If the court will not allow you to file the motion with an unsigned affidavit from your client for the purposes of scheduling the hearing for early Monday morning, you will have to obtain the client’s signature over the weekend and file the motion and supporting affidavit on Monday morning.

In sum, when a document must be signed under the penalties of perjury, resist the pressure to take shortcuts. Leave plenty of time to draft the required affidavit and to obtain your client’s or the witness’s signature. Require the affiant to read sworn statements carefully. It is advisable that you be available to answer questions at the time that your client or the witness reviews the sworn document. Emphasize how important it is that each statement be truthful and accurate because the document is being signed under the penalties of perjury. Keep in mind also that any affidavit and the circumstances of its creation and execution may well be the subject of a later deposition or cross-examination at trial. Always ensure that the signature on a sworn statement does, in fact, belong to the affiant. As other Bar Overseer articles have pointed out, the road to discipline or malpractice is often paved with good intentions.

382 Section 38

Wearing Two Hats: Dual Practices and Ancillary Businesses

by Christa A. Arcos, Assistant Bar Counsel

December 2003

Although attorneys have historically been allowed both to practice law and to pursue other business activities, the rendering of nonlegal services by attorneys or entities in which attorneys have an ownership interest raises several ethical concerns. These so called “dual practice” or “ancillary business” issues commonly arise where a practicing attorney holds another professional license or owns or has an interest in a company that provides services that are arguably “law- related.” While the Massachusetts Rules of Professional Conduct do not contain a specific prohibition on the simultaneous participation of attorneys in other businesses and professions, they do place constraints.

Rule 5.7 of the Massachusetts Rules of Professional Conduct identifies the responsibilities of an attorney who provides law-related services, defined as “services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.” Exam- ples of law-related services include “providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.” Mass. R. Prof’l C. 5.7, comment 9. It is permissible, and probably advisable, for lawyers to provide law-related services through “an entity that is distinct from that through which the lawyer provides legal services.” Rule 5.7, comment 4.

Where an attorney provides law-related services through the law firm “in circumstances that are not distinct from the lawyer’s provision of legal services to clients,” the attorney’s conduct is subject to the Rules of Professional Conduct. Rule 5.7(a)(1). For example, a sole practitioner who is also a Certified Public Accountant (“CPA”) may want to list both professions on the law firm letterhead and in law firm advertisements. If an attorney’s dual professional status is made known to clients or potential clients of the firm, or listed on firm letterhead, or in advertisements or solicitations for the law firm, the attorney’s activities in providing CPA services may be governed by all of the ethical rules such as, for example, those on conflicts of interest, confidentiality, and business transactions with clients.

If this same attorney provides CPA services through a separate entity, the attorney still will be subject to all of the Rules of Professional Conduct unless the attorney takes “reasonable measures” to ensure that the recipient of the financial services “knows that the services of the

383 separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.” If such measures are taken, the Rules of Professional Conduct that relate to the client- lawyer relationship do not apply. See Rule 5.7(a)(2) and comment 4. “Reasonable measures” should include a sufficient explanation to the recipient of the services, preferably in writing, that the additional services are not legal services and that the ethical rules, including the attorney- client privilege, do not apply. See Rule 5.7 comments 4 and 6-8.

In either event, a lawyer’s conduct in all business transactions is always subject to those ethical rules that apply generally to a lawyer’s conduct, irrespective of whether the conduct relates to the provision of legal services. For example, lawyers may not engage in dishonesty, fraud or misrepresentation or violate criminal statutes regardless of whether they are acting as lawyers or in some other capacity. See Rule 5.7 comments 2, 11 and Rule 8.4.

If an attorney forms a partnership or other business entity with nonlawyer professionals to offer law-related services, the business entity cannot provide legal services to the public or to clients without raising numerous ethical dilemmas. The Rules of Professional Conduct strictly prohibit attorneys from forming “a partnership or other business entity with a nonlawyer if any of the activities of the entity consist of the practice of law.” Rule 5.4(b); see also Boston Bar Association, Ethics Op. 1999-B (noting that an entity owned by lawyers and nonlawyers “cannot offer any legal services to its customers”).

Advertising

A law firm and an ancillary business that has nonlawyer owners cannot advertise together. The public may perceive, correctly or incorrectly, that the ancillary business and the law practice are combined. See State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826); N.J. Sup. Ct. Advisory Comm. on Prof’l Ethics, Op. 657 (1992) (1992WL257816) (prohibiting law firm from advertising jointly with ancillary business). Creat- ing such a public misperception could violate Rules 7.1 through 7.5, which prohibit misleading advertisements or solicitations.

Sharing Legal Fees

Attorneys are also prohibited from sharing legal fees with nonlawyers or assisting nonlawyers in the unauthorized practice of law. Rule 5.4(a) and Rule 5.5(b). Accordingly, the CPA/attorney in our example could only consider employment with, or a partnership in, a CPA firm if the sole business of the CPA firm is the provision of accounting or related financial services. If the CPA/attorney provided legal services to the CPA firm’s clients and any portion of the fee for legal services went to the CPA firm, the attorney might be in violation of Rules 5.4(a) and 5.5(b).

The CPA/attorney’s ethical dilemma would not necessarily be remedied if he or she provided “free” or “discounted” legal services to the CPA firm’s clients through his or her law practice. Under Rule 7.3(f), an attorney cannot give “anything of value to any person or organization to solicit professional employment for the lawyer from a prospective client.” See Sup. Ct. of Ohio

384 Bd. of Comm’rs on Grievances and Disp., Op. 92-17 (1992) (1992 WL 796110); Sup. Ct. of Texas Prof’l Ethics Comm., Op. 531 (1999) (1999 WL 1007267). Advisory ethics opinions in at least one jurisdiction have held that giving free or discounted legal services to clients of the ancillary business transfers the value of the legal services to the package of services the ancillary business sells to its clients, and as such constitutes an impermissible “reward” or “compensation” to the ancillary business, in violation of attorney ethical rules. See Sup. Ct. of Ohio Bd. of Comm’rs on Grievances and Disp., Op. 92-17 (1992) (1992 WL 796110); Sup. Ct. of Ohio Bd. of Comm’rs on Grievances and Discp., Op. 88-012 (1988) (1988 WL 508803) (if attorney provides a free consult to funeral director’s clients, the attorney impermissibly compensates the funeral director by adding value to the package of services the funeral director sells to his or her customers).

Referrals and Solicitation

When an attorney participates both in a law practice and a business that provides law-related services, a commonly asked question is whether the ethical rules allow the referral of business between the two professional practices. Referrals from the law firm to a law-related business in which the lawyer has an ownership interest constitute business transactions with a client. Com- ment 5 to Rule 5.7 requires a lawyer to comply with the requirements of Rule 1.8(a) on entering into business transactions with clients when referring a client “to a separate law-related service entity controlled by the lawyer, individually or with others.” If the attorney complies with the requirements of Rule 1.8(a) that the transaction be fair and reasonable and that there be full disclosure and consent in writing, referrals from the law firm to the ancillary business may be permissible in some situations. See Boston Bar Association, Ethics Op. 1999-B; Cal. State Bar Standing Comm. on Prof’l Resp. and Conduct, Op. 154 (1999) (1999 WL 692059); State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

When the ancillary business refers its clients to the attorney’s law firm, or the attorney while wearing his or her “business hat” seeks to solicit legal business from the clients of the ancillary business, arguably the ethical rules on advertising and solicitation apply. See Boston Bar Associ- ation, Ethics Op. 1999-B. The attorney must first ensure, as previously discussed, that there has been no violation of Mass. R. Prof. C. 7.3(f) by giving something of value in return for solicitation of the client.

Beyond the problems raised by Rule 7.3(f), the attorney may not be able to engage in personal or in-person solicitation. Although Rule 7.3(c) allows attorneys to solicit prospective clients with written communications if those communications comply with the provisions of that rule, Rule 7.3(c) prohibits solicitation through personal communication unless those “prospective clients are persons with whom the lawyer had a prior attorney-client relationship,” or are persons that fall under other exceptions not applicable here. At least two advisory ethics opinions have rea- soned that an attorney who renders services to clients through a separate law-related business does not have a “prior attorney-client relationship” with those clients for the purposes of making future solicitations on behalf of the attorney’s law firm. See California State Bar Standing Comm. on Prof’l Resp. and Conduct, Op. 1995-141 (1995) (1995 WL 530260 p.10, footnote 12);

385 State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826); cf. Boston Bar Association, Ethics Op. 2002-B (lawyers may not solicit clients of the ancillary business for legal business in violation of Rule 7.3).

The key point, however, concerning referrals from the business to the law practice, is that even when the ancillary business is appropriately separated from the attorney’s law practice (such that the attorney’s business conduct is not subject to all of the Rules of Professional Conduct), the attorney is always subject to the Rules of Professional Conduct in his or her law practice. See N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478). Thus, when soliciting or considering a person as a prospective client for the law practice, the attorney’s ownership interest in, or even employment with, an ancillary business creates the potential for numerous, possibly unwaivable, conflicts. See Rules 1.7 through 1.10; see also N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478) (discussing dual roles of an attorney to which a client cannot consent); cf. Boston Bar Association, Ethics Op. 2002-B.

Conflicts

Conflicts can arise when a business client becomes a law firm client or when an unrelated party seeks to pursue a claim against or involving a business client. In either situation, the attorney’s provision of business services, or interest in maintaining a good relationship with an ancillary business and its clients, may well constitute a “responsibility” to a third person or a “personal interest” of the attorney subject to scrutiny under Rule 1.7(b). At least one jurisdiction has opined that if the attorney “possesses confidences of the business customer which could be compromised by undertaking a legal matter which is adverse to the business customer[,]” the attorney may have to decline the new legal matter. See State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

Some conflicts cannot be waived. Other conflicts can be waived with the informed consent of the clients involved. Under Rule 1.7(b), “if the representation of [a] client may be materially limited by the lawyer’s responsibilities . . . to a third person, or by the lawyer’s own interests[,]” the attorney must decline representation unless the lawyer reasonably believes that the legal representation will not be affected and the client gives informed consent. See Rule 1.7(b) and comments 7,12, & 12A; see also Boston Bar Association, Ethics Op. 2002-B (when acting as an attorney, rules require independent assessment of client’s best interests); N.Y. State Bar. Ass’n Comm. on Prof’l Ethics, Op. 752 (2002) (2002 WL 1303478).

Along the same lines, the attorney’s ethical duties to existing or prior clients of the law practice may prevent an attorney from rendering nonlegal services to prospective business clients if doing so would conflict with the attorney’s duties of loyalty to law practice clients. Rules 1.6 through 1.10. And, of course, if the attorney’s independent assessment of a prospective client’s best interests would result in legal advice that would be contrary to the financial or other interests of the ancillary business, the lawyer should decline to represent the prospective client. See Rule 1.7(b); see also Boston Bar Association, Opinion 2002-B; State Bar of Mich. Standing Comm. on Prof’l and Judicial Ethics, Op. RI-135 (1992) (1992 WL 510826).

386 As the discussion in this article illustrates, the provision of business services in many areas may overlap with the rendering of legal services, such that business services that might otherwise be performed by laypersons may be subject to the Rules of Professional Conduct when performed by an attorney. Engaging in dual professional practices may be a desirable and profitable undertaking, but only after a careful evaluation of the ethical concerns.

387 Section 39

Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012)

SMALAND BEACH ASSOCIATION, INC. vs. ARTHUR F. GENOVA & another [1]; ALLAN BARTLETT & others, [2] third-party defendants. 461 Mass. 214 October 4, 2011– January 5, 2012 Court Below: Superior Court Department, Plymouth Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CIVIL ACTION commenced in the Superior Court Department on January 20, 2005.

Motions for disqualification of counsel and for reconsideration were heard by Richard J. Chin, J., and a proceeding for interlocutory review was heard in the Appeals Court by Janis M. Berry, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Lee P. Alfieri for Smaland Beach Association, Inc., & others.

Robert Kraus for the defendants.

CORDY, J.

Smaland Beach Association, Inc. (Smaland), together with the third-party defendants Allan Bart- lett, Louise Johnson, Mark Johnson, Russell Johnson, William Smith, and Carol Mahoney, all of whom are directors, officers, or members of Smaland, appeal from a Superior Court judge’s order disqualifying their attorney, Lee Alfieri, from representing them in a real property dispute against Arthur and Patricia Genova (Genovas). [3] The judge disqualified Alfieri based on his conclusion that Alfieri was a necessary witness because his clients had raised an advice of counsel defense and he had assisted various witnesses in submitting errata sheets that substantively changed their deposition testimony. We conclude that the judge failed to engage a sufficiently searching review of this fact-intensive issue. Consequently, we vacate the order and remand the case for a further hearing. We also take this occasion to consider the scope of disqualification orders under Mass. R. Prof. C. 3.7 (a), 426 Mass. 1396 (1998), and to clarify the proper use of errata sheets in altering deposition testimony under Mass. R. Civ. P. 30 (e), 365 Mass. 780 (1974).

1. Background. The details of the underlying substantive dispute are not material here, although we summarize them briefly for context. In 1971, the owners of various lots in a subdivision around Island Pond in Plymouth formally incorporated Smaland to maintain a beach and related recreational facilities for its members. Smaland commenced this action in 2005 against the Genovas, two of its members whose property shares a common boundary with a beach lot owned

388 by Smaland. [4] The complaint sought to ascertain the boundaries of the Genovas’ front property line and asserted claims of encroachment onto the Smaland lot, trespass and unlawful cutting of trees, tortious interference with Smaland members’ use of a boat ramp and boat dock, and pre- scriptive easement over the Genovas’ property. The Genovas asserted counterclaims against Smaland to quiet title to the disputed areas, remove certain items from their property, and establish adverse possession of an area near and beneath their cottage. The Genovas also brought third-party claims against the officers and directors of Smaland alleging that the action brought against them constituted an abuse of process and that the conduct of the officers and directors violated fiduciary duties owed to the Genovas as Smaland members; and a third-party claim against a neighbor alleging that her retaining walls and stairs encroached onto the public road.

During the course of the lengthy litigation that ensued, the parties deposed a number of witnesses. Following their depositions, four third-party defendants and three other deponents submitted errata sheets that substantively changed their testimony. At various points in these errata sheets, the deponents wholly reversed their testimony from an affirmative to a negative response, or vice versa, struck existing testimony and replaced it with a different narrative, or added explanatory text to existing deposition testimony. [5] Although some changes carried in-depth explanations, the typical reason given was to “clarify testimony.” During the second day of their depositions, two of these deponents—both Smaland officers and third-party defendants—testified that their attorney, Alfieri, had assisted them in drafting the errata sheets.

In May, 2006, the parties filed their first joint pretrial memorandum, in which the Genovas listed Alfieri as a potential witness. At a hearing to discuss the bifurcation of the trial into nonjury and jury issues, a Superior Court judge (not the judge who entered the disqualification order) in- quired into the need to call Alfieri. Alfieri represented that he did not believe he would be called as a witness at the trial and the Genovas’ counsel did not disagree. The judge subsequently issued an order bifurcating the trial [6] and, in June, 2007, presided over the jury-waived trial, at which Alfieri was not called as a witness. The judge issued a decision in April, 2009. [7]

In advance of the jury trial on the remaining issues, the parties submitted a second joint pretrial memorandum, in which the Genovas again listed Alfieri as a potential witness. Smaland and the third-party defendants, like their adversaries, also filed various pretrial motions, including a motion to prohibit the Genovas from calling Alfieri as a witness. The day before the hearing scheduled to consider these motions, the Genovas filed their opposition to this motion, expressing a conditional need to call Alfieri as a witness. The judge, however, treated the Genovas’ opposition as a motion to disqualify Alfieri, and focused the hearing on that issue.

At the start of the hearing, the judge instructed the parties that, on his reading of the bifurcation order, only three claims would proceed to trial [8]: (1) Smaland’s trespass claim, alleging that Arthur Genova entered its property and wrongfully cut down a tree; (2) the Genovas’ trespass and vandalism counterclaim, alleging that Smaland entered their property and removed granite survey markers and large rocks; and (3) the Genovas’ adverse possession counterclaim alleging that they had acquired title to a portion of their cottage, related retaining walls, garden, and bor- dering pathway that may technically lie on Smaland’s lot. Later in the hearing, he acknowledged

389 that the Genovas’ breach of fiduciary duty claim against the third-party defendants was also appropriate for the jury trial.

After defining the scope of the impending jury trial, the judge identified two ways in which Al- fieri had rendered himself a necessary witness and heard from both parties on the disqualification issue. First, the judge accepted that the third-party defendants had raised an advice of counsel defense to the Genovas’ breach of fiduciary duty claim. [9] To the judge, if the third-party defendants invoked this defense at trial, the Genovas had a “right” to call Alfieri. Second, the judge held that, given the highly unusual nature of the errata sheets that “totally change the deposition testimony,” both the Genovas and the appellants could use Alfieri’s testimony at trial. He went on to conclude that, while the Genovas would not be permitted to question Alfieri about what he had done for his clients, they would be allowed to inquire about the creation of the errata sheets submitted for nonclient witnesses, two of whom Alfieri admitted would be called as witnesses at trial. On learning from Alfieri that at least one of these nonclient witnesses suffered from memory loss, the judge further suggested that it would be reasonable for Smaland and the third- party defendants to call Alfieri to rehabilitate that witness and, perhaps, other witnesses who might be impeached through their errata sheet changes. The judge, therefore, issued an order from the bench disqualifying Alfieri from representing Smaland and the third-party defendants, though he recognized that they would suffer some hardship as a result.

Through Alfieri, the appellants moved for reconsideration. The judge ordered that the motion be “reserved pursuant to [Superior Court] Rule 9A upon [Smaland] as they are technically without counsel.” The appellants then petitioned a single justice of the Appeals Court for relief pursuant to G. L. c. 231, § 118, first par. Discerning “no abuse of discretion or clear error of law,” the single justice denied relief. Through new counsel, the appellants again moved the judge to take action on the motion for reconsideration. The judge determined “[n]o action necessary” because the Appeals Court had affirmed his prior ruling. The appellants then brought this interlocutory appeal. We transferred the appeal here on our own motion. [10]

2. Discussion.

a. Attorney disqualification. [11] Rule 3.7 (a) of the Massachusetts Rules of Professional Con- duct, provides, in pertinent part, that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where . . . disqualification of the lawyer would work substantial hardship on the client.” [12] The primary purpose of the rule is “to prevent the jury as fact finder from becoming confused by the combination of the roles of attorney and witness.” Steinert v. Steinert, 73 Mass. App. Ct. 287, 291 (2008) (Steinert). See also comment [2] to rule 3.7 (“A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. . . . It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof”). It mitigates the potential negative perception by the public that the attorney colored his or her testimony to further the client’s case and relieves the opposing counsel of the difficult task of cross- examining his lawyer-adversary. Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 99–100

390 (1st Cir. 1988). See Borman v. Borman, 378 Mass. 775, 786 (1979) (Borman); Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985) (Serody).

Despite these obvious benefits of the rule, it nonetheless carries with it the severe consequence of stripping a party of chosen counsel. Because of this, judges must proceed with “deliberate caution” when considering the disqualification of an attorney. Rizzo v. Sears, Roebuck & Co., 127 F.R.D. 423, 424 (D. Mass. 1989), citing Borman, supra, and Serody, supra. They must reconcile “the right of a person to counsel of his choice on the one hand, and the obligation of ‘maintaining the highest standards of professional conduct and the scrupulous administration of justice,’ on the other.” Slade v. Ormsby, 69 Mass. App. Ct. 542, 545 (2007) (Slade), quoting Mailer v. Mailer, 390 Mass. 371, 373 (1983).

As this analysis hinges in large measure on a judge’s balancing of the respective prejudices to the parties, we review disqualification orders for an abuse of discretion. Kendall v. Atkins, 374 Mass. 320, 324 (1978) (Kendall). See Steinert, supra at 288. Yet, we must be mindful that “[d]isqualification is not required in every case in which counsel could give testimony on behalf of his client on other than formal or uncontested matters,” Byrnes v. Jamitkowski, 29 Mass. App. Ct. 107, 109 (1990), citing Borman, supra, nor is it automatically granted where a party attempts to call opposing counsel, Borman, supra at 792. Rather, our framework requires a more searching review to determine whether the lawyer’s “continued participation as counsel taints the legal system or the trial of the case before it.” Id. at 788.

To that end, judges must carefully examine the evidence before them and should consider whether the information sought from the attorney-witness can be presented in a different manner, whether the attorney-witness’s testimony would be cumulative or marginally relevant, or whether disqualification was a foreseeable outcome. See Kendall, supra at 325; Serody, supra at 414; comment [4] to rule 3.7 (“It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness”). Where the need for an attorney to testify on behalf of his client arises, judges should defer to “the best judgment of counsel and his client,” unless the attorney is “withhold[ing] crucial testimony from his client because he prefers to continue as counsel.” Borman, supra at 790. But where opposing counsel seeks to question the attorney, “[t]he matter lies differently . . . .” Serody, supra at 413. In such cases, judges must guard against the “the Canons of Ethics [being] brandished for tactical advantage,” and must prevent litigants from wielding the rule as a weapon to “maneuver [opposing counsel’s] withdrawal and to that degree unsettle the adversary.” [13] Id. at 414. Although such scrutiny typically discourages the practice of allowing a party to call opposing counsel as a witness, where the testimony sought is prejudicial to or directed against the client, “the case for judicial intervention is more powerful.” Id. at 413. See Kendall, supra at 324.

Because the judge grounded his decision in two independent courses of conduct, we explore each path to disqualification in turn. First, we recognize that an attorney may be deemed a necessary witness when his clients assert an advice of counsel defense. See, e.g., Sea Trade Maritime Corp. vs. Coutsodontis, No. 09 Civ. 488 (BSJ) (HBP) (S.D.N.Y. July 25, 2011) (permitting attorney disqualification where advice of counsel defense raised). The content of that defense requires,

391 among other things, a showing that the clients made a full and honest disclosure of material facts to the attorney and that they followed the attorney’s advice. G.S. Enters., Inc. v. Falmouth Ma- rine, Inc., 410 Mass. 262, 275 (1991). Surely, it might be reasonable to call the attorney who rendered the advice. But, just because inclusion of such testimony would be reasonable in some instances does not mean it is required in all.

When faced with disqualification stemming from this defense, a judge must still undertake the analysis discussed above, and consider whether the information sought from an attorney could be adduced through other means. See Kendall, supra at 324–325; Serody, supra at 414. Here, there is no indication that the judge conducted that inquiry, and the record before us does not enable us to do so. The Genovas have not articulated the expected content of Alfieri’s testimony, nor have they explained what it may offer beyond the testimony of the parties themselves. [14] The record is equally devoid of any reason why Alfieri must testify to defend his clients. Such strategic decisions rest with the attorney and his client, unless a judge concludes that the attorney’s failure to testify is “obviously contrary to the client’s interests.” Borman, supra at 791. Absent these additional findings, Alfieri’s disqualification on the ground that his clients have asserted an advice of counsel defense rests on speculation, which is “plainly insufficient to serve as a basis for disqualification.” [15] Steinert, supra at 290.

The second path to Alfieri’s disqualification originates in his role in drafting the errata sheets that substantively change the deposition testimony of his client and nonclient witnesses. Throughout the hearing, the judge emphasized the unusual nature of these documents. We do not disagree. Our review of the errata sheets reveals that meaningful changes were made to the underlying testimony, and their consistent use across witnesses calls into question Alfieri’s role in their creation. Yet, given the prospective uses of Alfieri’s testimony, these facts alone do not provide adequate justification for concluding that the attorney is a necessary witness.

First, in accepting the Genovas’ argument that Alfieri was needed to explain the creation of the errata sheets, the judge failed to explore whether the testimony sought would be prejudicial to or directed against Alfieri’s clients, or whether alternate sources for this information were available. Such analysis is crucial in justifying judicial intervention into the attorney-client relationship where a party seeks the testimony of opposing counsel. See Kendall, supra at 325; Serody, supra at 414.

Here, however, the judge did not engage this inquiry, and the record that was before him does not allow us to do so. [16] In the first instance, there is again no evidence of the likely content of Alfieri’s testimony, which inhibits our investigation of the potential harm it could cause his clients without steering us toward impermissible speculation. In the second, the judge’s dialogue at the hearing disregarded the likelihood that most witnesses would be capable of recalling how their errata sheets were created and the possibility that any explanation of the process may have been preserved in deposition testimony. For example, on the second day of her deposition, the witness identified as suffering from memory loss explained that she marked changes on a deposition transcript that Alfieri had provided to her and delivered those changes to him. According to the witness, Alfieri then “wrote it up in better language than what . . . I had. But I made the corrections first and brought them down to . . . Alfieri.” Perhaps this passage would serve as an adequate

392 explanation of the errata sheets for the parties to present to the jury. We do not know. The bulk of the underlying deposition transcripts was not before the judge at the disqualification hearing.

Similar flaws are apparent in the judge’s conclusion that Alfieri may have to testify to rehabilitate any witnesses impeached through their errata sheets changes, and, thus, “properly defend his client.” Through the use of the errata sheets at trial, the jury would be in a position to consider the memories of the witnesses and their ability to remember a given fact at a certain time. On the record before us, it appears that Alfieri is in no better position to speak to these issues than the witnesses themselves, nor is he better poised than the jury to judge the apparent discrepancies. In any event, the decision to call Alfieri to rehabilitate a witness, and thus testify on behalf of his clients, initially lies with him, as the attorney, and his clients. Borman, supra at 787–788. They could reasonably decide that the witnesses could overcome any impeachment without Alfieri’s testimony. Without additional findings, any decision to forgo Alfieri’s testimony does not appear to contradict the clients’ interests so dramatically as to warrant judicial intervention. See id. at 790–791.

The decision to disqualify an attorney is a difficult one with substantial consequences to the attorney’s client, particularly, as here, where the case has been litigated by the attorney over many years. As such, judges considering these motions must closely scrutinize the facts before them to determine whether a lawyer’s “continued participation as counsel taints the legal system.” Id. at 788. Given the accusations of attorney misconduct in the preparation of the errata sheets, it may be that, after further review, the judge will again disqualify Alfieri. Even with that possibility, the present order cannot stand on the record before us. Although the decision came on the eve of trial, the judge did not sufficiently analyze the factors before him, particularly in light of the narrow issues for the jury trial he proscribed. Therefore, we vacate the disqualification order and remand the case for a further hearing consistent with this opinion. [17] b. Pretrial disqualification. Although we have vacated the judge’s order, the total disqualification he imposed on Alfieri compels us to offer some guidance on the subsequent review of this issue.

By its plain language, rule 3.7 (a) prohibits a lawyer from acting “as an advocate at trial in which the lawyer is likely to be a necessary witness” (emphasis added). Unlike the rules governing disqualification due to conflicts of interest with the lawyer-witness’s current client or prior representation of the opposing party, this rule contains the limiting phrase “at trial.” Contrast Mass. R. Prof. C. 1.7, 426 Mass. 1330 (1998) (conflict of interest); Mass. R. Prof. C. 1.9, 426 Mass. 1342 (1998) (prior representation). It also focuses on a lawyer’s specific role as an advocate at that trial, thus differentiating this rule from its predecessor, which broadly prohibited a lawyer who ought to serve as a witness from participating in “the conduct of the trial” (emphasis added). Disciplinary Rule 5-102 (A), 359 Mass. 814 (1972). While the former rule could—and had been—read to encompass a lawyer-witness’s pretrial representation of his client, we are persuaded that the current rule does not. See Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1998) (Culebras) (Rule 3.7 of Model Rules of Professional Conduct of American Bar Associa- tion [ABA], which is identical to Massachusetts rule, should not be read “as broadly prohibiting the rendition of case-related out-of-court services prior to trial”); Steinert, supra at 290-291 (rule

393 3.7 “does not limit the attorney’s involvement prior to trial”). Compare Massachusetts Bar Asso- ciation Committee on Professional Ethics Opinion No. 88-6 (1988) (concluding that Disciplinary Rule 5-102 [A] prohibited lawyer-witness from participating in pretrial activities, while recognizing that model rule 3.7, which is identical to current Massachusetts rule, was “a much less restrictive disqualification provision”) with ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 89-1529 (1989) (concluding that model rule 3.7 permits lawyer- witness representation in pretrial activities provided client consents after consultation). As such, an attorney considered to be a necessary witness may participate in pretrial proceedings, though it would be particularly prudent first to secure client consent after consultation. [18] See id.

This reading of rule 3.7 (a) adheres to its text and fulfils its underlying purposes. See Culebras, supra at 99–100. That is, because the rule strives to mitigate potential jury confusion, to avoid the difficulties of cross-examining an adversary and to diminish the appearance of impropriety where an attorney “leave[s] counsel table for the witness chair,” Serody, supra at 414, judges need only divorce the two functions—that of advocate and witness—at the trial itself. Id. at 414– 415. These concerns, however, “are absent or, at least, greatly reduced, when the lawyer-witness does not act as trial counsel, even if he performs behind-the-scenes work for the client in the same case.” Culebras, supra at 100.

Thus, were the judge to ground any future disqualification of Alfieri in rule 3.7 (a) alone, he is limited to barring the attorney’s participation at trial. [19] Any disqualification that might extend to pretrial activities must derive from a different source. [20] c. Judicial disqualification. [21] Smaland and the third-party defendants ask that we disqualify the motion judge from further involvement in the case on remand. We find nothing in the record to suggest that the judge’s “impartiality might reasonably be questioned,” and therefore decline to disqualify him. S.J.C. Rule 3:09, Canon 3 (E) (1), as appearing in 440 Mass. 1319 (2003). De- spite the appellants’ arguments to the contrary, the judge acted within his authority when he raised the issue of Alfieri’s disqualification after the opposing party signaled its conditional intention to call Alfieri as a witness. See Kendall, supra at 325. That the resulting order was adverse to the appellants does not demonstrate the required “bias or prejudice” to warrant judicial disqualification. Commonwealth v. Greineder, 458 Mass. 207, 235 (2010), quoting Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). d. Errata sheets. Errata sheets have played a central role in the litigation among the parties, and Smaland and the third-party defendants have argued that any substantive changes contained within the errata sheets were proper under Mass. R. Civ. P. 30 (e). Although the validity of the errata sheets is not directly before us, we nonetheless take this opportunity to clarify the use of errata sheets to alter deposition testimony.

Rule 30 (e) allows that “[a]ny changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of reasons given by the witness for making them.” No Massachusetts appellate court has squarely decided the propriety under this rule of submitting substantive changes to deposition testimony through errata sheets. [22]

394 Because the Massachusetts and Federal rules are similar, it is instructive to turn to our Federal counterparts for guidance. [23] See Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996), quoting Solimene v. B. Grauel & Co., 399 Mass. 790, 800 (1987), and Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975) (“ ‘Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts,’ . . . ‘absent compelling reasons to the contrary or significant differences in content’ “).

As courts and commentators have noted, divergent trends have emerged across the national landscape as Federal courts have grappled with this issue. See, e.g., Reilly v. TXU Corp., 230 F.R.D. 486, 487 (N.D. Tex. 2005) (Reilly); Summerhouse v. HCA Health Servs. of Kan., 216 F.R.D. 502, 504-505 (D. Kan. 2003); Macchiaroli, Rewriting the Record: A Federal Court Split on the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1, 4–10 (2009). The traditional approach, adopted in the majority of Federal courts, allows any changes, whether in form or substance, clarifying or contradictory. Reilly, supra at 489-490. See, e.g., Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Tingley Sys., Inc. v. CSC Consult- ing, Inc., 152 F. Supp. 2d 95, 120 (D. Mass. 2001) (Tingley); Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981) (Lugtig). To mitigate the potential for abuse under this liberal view, courts implementing this approach have allowed the original and changed answers, as well as any reasons given for the changes, to remain part of the record, Lugtig, supra at 641-642, and “reserved the right to reopen the deposition if the changes were material,” Summerhouse v. HCA Health Servs. of Kan., supra at 505, citing Tingley, supra at 120–121.

A growing minority of courts has, however, adopted a narrower interpretation of Fed. R. Civ. P. 30 (e), either restricting the rule to typographical or transcription corrections, see, e.g., Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992), or permitting clarifying, but not contradictory changes, see, e.g., Hambleton Bros. Lumber Co. v. Balkin Enters. Inc., 397 F.3d 1217, 1225–1226 (9th Cir. 2005). [24]

Given the plain language of our rule 30 (e), which encompasses “[a]ny changes in form or substance” to deposition testimony, we adopt the majority approach. Unlike the minority view, which imposes an artificial stricture on the analogous Federal rule, this scheme allows legitimate corrective changes and advances the underlying purpose of the discovery process, i.e., “for the parties to obtain the fullest possible knowledge of the issues and facts before trial.” Strom v. American Honda Motor Co., supra at 336, quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947). See Reilly, supra at 490.

Yet, we do not import this expansive reading without limitations necessary to guard against ma- nipulation of rule 30 (e). First, counsel must understand and should explain to deponents that any changes they make must represent their own good faith belief, and may not be undertaken simply to bolster the merits of a case. Second, counsel must ensure that any submitted changes comply with the procedural requirements of rule 30 (e). See Lugtig, supra at 641–642. We emphasize, in particular, the instruction that a statement of reasons must accompany the change. Mass. R. Civ.

395 P. 30 (e). These reasons must be advanced in good faith and provide an adequate basis from which to assess their legitimacy; that is, they must not be conclusory. Tingley, supra at 119–120.

Like other courts employing a similar interpretation of rule 30 (e), we also adopt certain remedial measures. See Lugtig, supra at 642. First, because the text of rule 30 (e) does not require that the original answers of the deponent be struck, the original answers remain part of the record and may be read, along with the changed answers and reasons provided for the change, at trial. See id. at 641. Second, in the interest of fairness, where the deponent has made substantive changes as to significant matters on an errata sheet that, if provided during the deposition, would reasonably have triggered further inquiry, the party who took the deposition can reopen the examination for the purposes of exploring matters raised by the substantive changes in testimony and the origins of those changes. [25] Finally, if there is any indication that an attorney has exploited the rule by arranging or facilitating the submission of errata sheets for the purpose of strategic gain in a case and not to correct testimony, his conduct may be grounds for sanctions. See, e.g., Mass. R. Prof. C. 3.3, 426 Mass. 1383 (1998) (candor toward tribunal); Mass. R. Prof. C. 3.4 (a)-(d), (f), (g), 426 Mass. 1389 (1998) (fairness to opposing party and counsel).

While substantive changes to errata sheets are permitted under rule 30 (e), we caution deponents and attorneys to invoke this privilege sparingly. The errata sheet is intended as a tool to correct mistakes in deposition testimony or subsequent transcription. It is not to be used as a mechanism to inject additional facts into the testimony of a single deponent, or to align testimony across deponents.

3. Conclusion. The judge’s disqualification order is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.

FOOTNOTES

[1] Patricia A. Genova.

[2] Louise Johnson, Mark Johnson, Russell Johnson, William Smith, and Carol Mahoney.

[3] We refer to Smaland Beach Association, Inc. (Smaland), together with the third-party defendants, as the appellants.

[4] Arthur and Patricia Genova (Genovas) were members of Smaland from September 1, 1974, until April 23, 2005, when they were expelled as beach members.

[5] Some examples of the errata sheet changes relevant to the parties’ claims include: (1) One deponent adding to an answer, “I recall seeing them walking, standing, or working in the grassy area at some point in time, but it was on a irregular basis and I never observed an established or discernible pathway.” (2) The same deponent later changed “I’d say no,” to “I’d say yes,” and “I don’t believe . . . “ to “I believe . . . .” (3) He also clarified existing testimony that Arthur Genova had cut down a tree to clear a neighbor’s view of the beach, but changed the language, “I knew

396 [the tree] was blocking,” to “I knew [the Genovas] claimed it was blocking.” (4) Another deponent struck seven lines of testimony explaining that she had answered questions from Alfieri about her history in the area and then signed an affidavit at his office and replaced it with four paragraphs of testimony emphasizing her role in making changes to and altering drafts of the affidavit before signing it. (5) That deponent also changed her testimony on five occasions to explain that, although she did not witness the construction itself, “it appeared to [her] that when the [Genovas’] railroad road tie retaining wall was replaced with the pressure-treated retaining wall, backfilling was done behind the front section of the new wall” and that, as a result, she believed that “the front yard was extended.” (6) A third deponent added nine passages to clarify testimony revolving around markings she had made on a map of the Genovas’ property and surrounding area during her deposition, repeatedly emphasizing that “[the Genovas’ wall] extended into Crescent Road.” (7) A fourth deponent added testimony “but the pathway is very recent.” (8) That same deponent also changed her answer “Yes,” to “Yes, I heard that Arthur claimed he cut down the tree because it blocked [a neighbor’s] view.”

[6] In the bifurcation order, the judge concluded that the jury-waived trial would resolve the Genovas’ counterclaim to quiet title and would determine whether the Genovas owned “the fee in a specific section of land which is located forward of their lot line and extends across a private way shown as Crescent Road,” which would require analysis of the derelict fee statute and the scope of any property rights the original common grantor had retained “in the land on the side of Crescent Road which is opposite that of the land of the parties.” It would also reach whether the Genovas had any rights, by implication, in that area and whether Island Pond, the body of water on the opposite side of the road from the parties’ lots of land, is a Great Pond.

The judge then identified as issues for a later jury trial what, if any, rights were obtained through adverse possession or prescription, the obstruction of paths, encroachment of buildings, trespass, vandalism, and cutting of trees, as well as the abuse of process counterclaim and the third-party claims for abuse of process, breach of fiduciary duty, and encroachment.

[7] The judge concluded that Island Pond is privately owned and that, although the Genovas “have fee interest across the total way of Crescent Road and to the mid-point of Island Pond,” that fee is subject to an easement, which permits “all lot owners . . . to access the waters of Island Pond, including the beach and water in front of [the Genovas’ lots] for purposes of recreation.”

[8] The judge narrowed the scope of the jury issues to those claims seeking a remedy other than, or in addition to, injunctive relief. He explained that this “ruling is based on the bifurcation order that indicates the counts for injunctive relief will be tried jury waived by somebody else.” This statement alludes to a portion of the order that reads, “Although permanent injunctive relief is a matter for the court, not the jury, it cannot be decided until all the issues, non-jury and jury, have been resolved.” As a result, the judge presiding over the first jury-waived trial refrained from considering permanent injunctive relief in that proceeding.

[9] The judge recognized at the hearing that the advice of counsel defense also went to the abuse of process counterclaim filed against Smaland and the third-party defendants. But, he reserved

397 that issue for a later jury-waived trial because it solely sought injunctive relief (as compared to the breach of fiduciary duty claim, which he permitted to proceed because it sought injunctive relief and monetary damages).

[10] Under the doctrine of present execution, an interlocutory appeal from a disqualification order may be taken immediately. See, e.g., Borman v. Borman, 378 Mass. 775, 780–781 (1979). Neither party disputes that this appeal is properly before us.

[11] The Genovas have incorporated throughout their appellate brief a conflict of interest argument regarding Alfieri’s representation of the appellants. Because this argument was not developed or presented to the judge below, we decline to consider it.

[12] The full text of the rule provides for two additional exceptions where the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case. Mass. R. Prof. C. 3.7 (a) (1), (2), 426 Mass. 1396 (1998). The facts before us do not implicate these two exceptions.

[13] The likelihood of such underhandedness is minimal in this case. The Genovas did not request Alfieri’s disqualification; they merely expressed a conditional need to call the lawyer as a witness if the appellants invoked the advice of counsel defense or if they called witnesses whose testimony implicated the changes in the errata sheets. It was the judge who identified Alfieri’s role as warranting disqualification and initiated the hearing.

[14] In their initial opposition, which the judge treated as a motion to disqualify Alfieri, the Genovas conceded the possibility that they could explore the advice of counsel defense without calling Alfieri.

[15] The assertion of an advice of counsel defense may also lead to a conflict of interest between Alfieri and his clients. Although we refrain from exploring that issue here, we note that Alfieri represents three parties in this case: Smaland as a corporate entity, its officers and directors as third-party defendants, and one of its members as a third-party defendant.

[16] The Genovas’ argument—and the record before the judge—also fails to explain adequately why Alfieri’s prospective testimony about the creation of the errata sheets would be necessary to the limited issues reserved for the jury trial. In a two-page errata sheet, one of the nonclient witnesses added a few lines about the location of a gate and fence, changed an equivocal answer to a firmer assertion that he had seen an individual use a particular ramp, and replaced a “yes” with a “no.” In an eight-page errata sheet, another provided a more detailed explanation of how she created an affidavit, added testimony regarding the Genovas’ replacing their retaining wall (and thus potentially extending their front yard) and changed a negative response to an affirmation that she had seen her brother’s affidavit (see note 5, supra).

Although this testimony would feasibly be relevant to the Genovas’ adverse possession counterclaim, which was among the four issues to be heard at the jury trial, it is unclear why its inclusion

398 would render Alfieri a necessary witness. With regard to these particular witnesses, these changes suggest little more than a lapse in memory and, as discussed more fully infra, both the underlying deposition testimony and the errata sheet changes would be available to impeach them. The Genovas, then, are free to discredit these and any other witnesses with the discrepancies they identify between the two sets of documents, even without any testimony from Alfieri.

[17] Because we are vacating the disqualification order on other grounds, we need not reach the appellants’ due process arguments.

[18] As the ABA has cautioned, “some limitations on pre-trial representation [where an attorney is designated a necessary witness] should be observed.” ABA Standing Committee on Ethics and Professional Responsibility Informal Opinion 89-1529 (1989). For instance, although the precise language of the rule does not call for disqualification in such settings, the ABA has suggested that a lawyer-witness should not represent his client at the lawyer-witness’s own pretrial deposition, nor should the lawyer-witness argue a pretrial motion where his testimony is material to the substance of that motion. Id.

[19] “Nothing herein is meant to suggest that [Mass. R. Prof. C. 3.7 (a)] condones a witness- lawyer’s visible association in the courtroom in the role of co-counsel with his client’s trial attorney.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94, 100 n.8 (1st Cir. 1988).

[20] We recognize that combining the roles of advocate and witness may create a conflict of interest, and note that such situations are governed by Mass. R. Prof. C. 1.7, 426 Mass. 1373 (1998) (conflict of interest), or Mass. R. Prof. C. 1.9, 426 Mass. 1342 (1998) (prior representation), not rule 3.7. See comment [1] and [5] to rule 3.7. As such, total disqualification would be available under those theories.

Similarly, once it is established that Alfieri “intends to be a witness for his client,” Rule 12 of the Rules of the Superior Court 960 (LexisNexis 2011–2012) would prohibit his participation “in the conduct of a trial . . . except by special leave of the court.”

[21] Although we proceed to decide this issue, the Genovas correctly argue that, because the appellants did not raise this issue before the judge, they are technically barred from presenting it here. See Commonwealth v. Greineder, 458 Mass. 207, 235 (2010), citing Commonwealth v. Coyne, 372 Mass. 599, 602 (1977) (“Recusal is a matter that rests in the first instance in the discretion of the judge”); Guardianship of Hocker, 439 Mass. 709, 719 (2003).

[22] Two Superior Court judges have addressed this issue, concluding that, although Mass. R. Civ. P. Rule 30 (e), 365 Mass. 780 (1974), permits substantive changes through errata sheets, the original answers may remain on the record and available for impeachment purposes, McHugh vs. Kilp, MICV1999- 00875 (Mar. 22, 2001), and that, if the changes relate to matters of substance and, “in the judgment of the opposing party . . . have a substantially detrimental effect on the discovery in the case,” the opposing party may be entitled to reopen the deposition, Chaplin vs. Quinn, WOCV2002-1492B (Jan. 13, 2004).

399 [23] Rule 30 (e) of the Federal Rules of Civil Procedure provides: “On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.”

[24] Some courts have analyzed this issue under the “ ‘sham’ affidavit rule,” which generally states that “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Hambleton Bros. Lumber Co. v. Balkin Enters. Inc., 397 F.3d 1217, 1225 (9th Cir. 2005). See Burns v. Board of County Comm’rs of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). This mode of analysis goes to the use of contradictory submissions in the context of a summary judgment motion, see Lyons v. Nutt, 436 Mass. 244, 249 (2002) (conflict between postdeposition affidavit and deposition testimony may not be used to create disputed issue of fact to defeat summary judgment motion), rather than the validity of those submissions under the rules of civil procedure. Because a summary judgment motion is not before us, the relevance of these cases to our decision is limited to any general pronouncements they make on the scope of permissible changes under rule 30 (e).

[25] A judge may assess to the party whose substantive changes necessitated the reopened deposition the costs and attorney’s fees associated therewith, where fairness requires.

400 Section 3:

Getting Ahead in the Cloud*

The following is included as an advertisement example only. It does not imply endorsement of any kind by MCLE or the SJC.

401 402 403 404

405 Section 3;

MBA Ethics Opinion 12-031 (Using Cloud Storage—Google Docs)

Summary: A lawyer generally may store and synchronize electronic work files containing confidential client information across different platforms and devices using an Internet based storage solution, such as “Google docs,” so long as the lawyer undertakes reasonable efforts to ensure that the provider’s terms of use and data privacy policies, practices and procedures are compatible with the lawyer’s professional obligations, including the obligation to protect confidential client information reflected in Rule 1.6(a). A lawyer remains bound, however, to follow an express instruction from his or her client that the client’s confidential information not be stored or transmitted by means of the Internet, and all lawyers should refrain from storing or transmitting particularly sensitive client information by means of the Internet without first obtaining the client’s express consent to do so.

Facts: A lawyer (“Lawyer”) wishes to store and synchronize the electronic work files that he creates in the course of his law practice across multiple computers and devices (e.g., smartphones, iPads, etc.) so that he can access them remotely. Some of the work files contain privileged or other confidential client information. Lawyer is considering several potential solutions to address his needs, including storing and synchronizing his electronic files remotely using a third-party service that is accessible through the Internet, such as “Google docs.” As described by Google, Google docs is a private service that permits users to store their documents and other data on Google’s servers and access that information remotely over the Internet using multiple devices and platforms. Numerous other “cloud” based storage options, such as Microsoft’s “Windows Azure,” Apple’s “iCloud,” and Amazon.com’s “S3” service, exist. The issue presented is whether it would violate Lawyer’s obligations under the Massachusetts Rules of Profes- sional Conduct to store confidential client information using Google docs or some other Internet based storage solution, and to synchronize his computers and other devices that contain or access such information over the Internet.

Discussion: Rule 1.6 of the Massachusetts Rules of Professional Conduct governs the confidentiality of client information. Subsection (a) of Rule 1.6 provides, in relevant part, that “[a] lawyer shall not reveal confidential information relating to the representation of a client unless the client consents after consultation....” The duty of confidentiality dictated by Rule 1.6 (as well as other rules) imposes upon Lawyer the obligation to avoid using means of communication with the client that pose an unreasonable risk of inadvertent disclosure to third persons.

1 MBA Ethics Opinion 12-03 was published in 2012, prior to the revision of the Massachusetts Rules of Professional Conduct, effective July 1, 2015. Please review in light of the rules as revised in 2015.

406 In this context, the question posed is whether Lawyer’s use of Google docs or another Internet based data storage service provider, which carries with it a small, but genuine risk of unauthorized access or interception, presents an unreasonable risk of inadvertent disclosure and, therefore, violates Rule 1.6(a).

The Committee on Professional Ethics previously has addressed issues of client confidentiality posed by a lawyer’s use of the Internet and remote access capabilities. For example, in Opinion 00-01, the Committee concluded that a lawyer’s use of unencrypted Internet e-mail to engage in confidential communications with his or her client does not violate Massachusetts Rule of Pro- fessional Conduct 1.6(a) in ordinary circumstances. We said, in relevant part,

[i]t is the Committee’s opinion that the use of unencrypted Internet e-mail for the purpose of transmitting confidential or privileged client communications does not, in most instances, constitute a violation of any applicable ethical rule, including Rule 1.6. The Committee reaches this conclusion primarily because it believes that both the lawyer and the client typically have a reasonable expectation that such communications will remain legally and effectively private. See, e.g., 18 U.S.C.A. 2510, et seq. (the “Electronic Communications Privacy Act”). The technological possibility that a privileged or confidential e-mail communication could be intercepted in disregard of federal law does not diminish that expectation. Oth- er standard forms of communication, including the telephone and the United States mail, also carry with them some risk of interception. Legal prohibitions on the interception of private telephone calls and letters, however, generally provide protection against unauthorized disclosure sufficient to make those means of communication reasonably secure for purposes of Rule 1.6(a). The Committee believes that, in light of statutes such as the Electronic Communications Privacy Act, the same reasoning now applies to unencrypted Internet e-mail.

Similarly, in Opinion 05-04, the Committee concluded that a law firm may provide a third-party software vendor with remote access to confidential client information stored on the firm’s computers for the purpose of allowing the vendor to support and maintain a computer software application utilized by the law firm so long as the law firm undertakes “reasonable efforts” to ensure that the conduct of the software vendor “is compatible with the professional obligations of the lawyer[s],” including the obligation to protect confidential client information reflected in Rule 1.6(a). The Committee stated that “reasonable efforts” in the circumstances would include, among other things,

(a) notifying the vendor of the confidential nature of the information stored on the firm’s servers and in its document database; (b) examining the vendor’s existing policies and procedures with respect to the handling of confidential information; (c) obtaining written assurance from the vendor that confidential client information on the firm’s computer system will only [be] utilized solely for technical support purposes and will be accessed only on an “as needed” basis; (d) obtaining written assurance from the vendor that the confidentiality of all client information

407 will be respected and preserved by the vendor and its employees; and (e) drafting and agreeing upon additional procedures for protecting any particularly sensitive client information that may reside on the firm’s computer system, to the extent necessary.

The Committee believes that the reasoning set forth in Opinion 00-01 and Opinion 05-04 generally would allow Lawyer also to use Google docs or some other Internet based data storage service provider to store confidential client information, and to synchronize data using that provider over the Internet. More specifically, the Committee believes that the use of an Internet based service provider to store confidential client information would not violate Massachusetts Rule of Professional Conduct 1.6(a) in ordinary circumstances so long as Lawyer undertakes reasonable efforts to ensure that the provider’s data privacy policies, practices and procedures are compatible with Lawyer’s professional obligations, including the obligation to protect confidential client information reflected in Rule 1.6(a). “Reasonable efforts” by Lawyer with respect to such a provider would include, in the Committee’s opinion:

(a) examining the provider’s terms of use and written policies and procedures with respect to data privacy and the handling of confidential information;

(b) ensuring that the provider’s terms of use and written policies and procedures prohibit unauthorized access to data stored on the provider’s system, including access by the provider itself for any purpose other than conveying or displaying the data to authorized users;

(c) ensuring that the provider’s terms of use and written policies and procedures, as well as its functional capabilities, give the Lawyer reasonable access to, and control over, the data stored on the provider’s system in the event that the Law- yer’s relationship with the provider is interrupted for any reason (e.g., if the storage provider ceases operations or shuts off the Lawyer’s account, either temporarily or permanently);

(d) examining the provider’s existing practices (including data encryption, password protection, and system back ups) and available service history (including reports of known security breaches or “holes”) to reasonably ensure that data stored on the provider’s system actually will remain confidential, and will not be intentionally or inadvertently disclosed or lost; and

(e) periodically revisiting and reexamining the provider’s policies, practices and procedures to ensure that they remain compatible with Lawyer’s professional obligations to protect confidential client information reflected in Rule 1.6(a).

Consistent with its prior opinions, the Committee further believes that Lawyer remains bound to follow an express instruction from his client that the client’s confidential information not be stored or transmitted by means of the Internet, and that he should refrain from storing or trans-

408 mitting particularly sensitive client information by means of the Internet without first seeking and obtaining the client’s express consent to do so.[1]

Applying its conclusions to Google docs, Lawyer’s proposed Internet based data storage solution, the Committee observes that Google has adopted written terms of service and a privacy policy for users of Google docs (see generally http://www.google.com/google-d-s/terms.html) that reference and incorporate various other Google policies. Among other things, Google represents that data stored on Google docs is “private” and “password protected,” but can be voluntarily shared by the user with others or published to the World Wide Web. The Committee further observes that Google docs and other Internet based storage solutions, like many, if not most, remotely accessible software systems and computer networks, are not immune from attack by unauthorized persons or other forms of security breaches. See, e.g., “How Safe Are Your Google Docs”, found at http://www.odesk.com/blog/2010/05/how-safe-are-your-google-docs; and “Can You Trust Your Data To Amazon, Other Storage Cloud Providers?”, found at http://www.networkworld.com/supp/2008/ndc3/051908-cloud-storage.html.

The foregoing policies, protections and resources are referenced by the Committee solely for informational purposes. Ultimately, the question of whether the use of Google docs, or any other Internet based data storage service provider, is compatible with Lawyer’s ethical obligation to protect his clients’ confidential information is one that Lawyer must answer for himself based on the criteria set forth in this opinion, the information that he is reasonably able to obtain regarding the relative security of the various alternatives that are available, and his own sound professional judgment.

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on May 17, 2012.

[1] The American Bar Association and the bar associations of various states also have addressed the ethical implications of using Internet-based software and data storage services, either formally or provisionally. See, e.g., American Bar Assoc. Commission on Ethics 20/20 “Issues Paper Concerning Client Confidentiality and Lawyers’ Use of Technology,” dated September 20, 2010; New York State Bar Association Committee on Professional Ethics Opinion 842, dated Septem- ber 10, 2010; California State Bar Standing Committee on Professional Responsibility and Con- duct Proposed Formal Opinion Interim No. 08-0002, approved for public comment in August 2010; Iowa State Bar Association Committee on Ethics and Practice Guidelines Opinion 11-01, dated September 9, 2011; and North Carolina State Bar Ethics Committee Proposed 2011 Formal Ethics Opinion 6, dated October 20, 2011.

409 Section 3"

Revised Massachusetts Rules of Professional Conduct

A. SJC Announcement of Revised Rules

B. Report of the Standing Advisory Committee

410 Supreme Judicial Court Adopts Revised Rules of Professional Conduct 1.0–3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4

The Justices of the Supreme Judicial Court have adopted substantial revisions to the Rules of Professional Conduct (Mass. R. Prof. C.) contained in SJC Rule 3.07. These revisions are announced in the Justices' Order dated March 26, 2015, and will be effective on July 1, 2015.

These revisions are based on the Justices' consideration of recommendations of the Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee"). At the request of the Justices, the Committee examined the current Massachusetts Rules of Professional Conduct in light of amendments to the American Bar Association's Model Rules of Professional Conduct adopted following the work of the ABA Ethics 2000 Commission and the ABA Com- mission on Ethics 20/20. In July 2013, with the Court's permission, the Committee published its proposed rules for comment. Following careful review of the comments received, the Commit- tee on May 14, 2014 submitted to the Justices revised Proposed Rules of Professional Conduct. This proposal included amendments to all of the Massachusetts Rules with the exception of Rules 5.2, 6.3, 6.4, 6.5, and 8.5.

On October 29, 2014, the Justices announced their decisions concerning Rules 1.0–1.5, 1.7–1.9, 1.11–3.4, 3.6, 3.7, 3.9–5.0, 5.2, 5.4–6.2, 7.1–7.5, and 8.1–8.4. The Justices also announced that they would hear argument on certain issues pertaining to Rules 1.6, 1.10, 3.5, 5.1, and 5.3 on De- cember 18, and that they were deferring action on Rule 3.8. The Justices' decisions on Rules 1.6, 1.10, 3.3, 5.1, and 5.3 are reflected in the Revised Rules adopted today and summarized in the Report of the Standing Advisory Committee on the Adoption of Revised Rules of Professional Conduct effective July 1, 2015.

The following documents are available for review on the Supreme Judicial Court website:

• The Order of the Justices adopting revised Rules of Professional Conduct 1.0 –3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4.

• Revised Mass. Rules of Professional Conduct 1.0–3.7, 3.9–5.1, 5.3–6.2, and 7.1–8.4.

• A redlined version of the Revised Mass. Rules of Professional Conduct marked to show changes from the current Massachusetts Rules of Professional Conduct.

• A redlined version of the Revised Mass. Rules of Professional Conduct marked to show changes from the American Bar Association Model Rules of Professional Conduct.

• The Report of the Standing Advisory Committee on the Adoption of Revised Rules of Pro- fessional Conduct effective July 1, 2015. This Report summarizes key changes in the rules as adopted.

• The Committee's Report dated July 1, 2013 and its Supplemental Report dated May 14, 2014, describing to the Committee's proposed revisions to the rules. The Supreme Judicial

411 Court did not adopt all of the Committee's recommendations, but these reports provide guidance on the rationale for many of the adopted revisions.

The Justices of the Supreme Judicial Court appoint the members of the Standing Advisory Committee on the Rules of Professional Conduct. The Committee is chaired by John L. Whit- lock, Locke Lord LLP. The other members are Carol Beck, Committee for Public Counsel Ser- vices; Professor R. Michael Cassidy, Boston College Law School; Timothy J. Dacey, Goulston & Storrs, P.C.; Henry C. Dinger, Goodwin Procter LLP; Erin K. Higgins, Conn Kavanaugh Rosenthal Peisch & Ford, LLP; Professor Andrew L. Kaufman, Harvard Law School; Elizabeth Mulvey, Crowe & Mulvey LLP; Professor Andrew M. Perlman, Suffolk University Law School; James B. Re, Sally & Fitch LLP; Regina E. Roman, Sugarman, Rogers, Barshak & Cohen, PC; Professor Constance Rudnick, Massachusetts School of Law; and Massachusetts Bar Counsel Constance V. Vecchione, Office of Bar Counsel.

Source: http://www.mass.gov/courts/case-legal-res/rules-of-court/rule-changes-invitations- comment/sjc-adopts-revised-rules-of-professional-conduct-march-2015.html

412 413 414 415 416

417 Section 3#

Massachusetts Bar Association Committee on Professional Ethics Opinion 2014-5 Summary: A lawyer for a party may "friend" an unrepresented adversary in order to obtain information helpful to her representation from the adversary's nonpublic website only when the lawyer has been able to send a message that discloses his or her identity as the party's lawyer.

Facts: A lawyer inquires whether she may directly request access to "non-public information" on a potential adverse party's social networking site (Facebook) to attempt to ascertain information relevant to contemplated litigation when the opposing party (X) is at present unrepresented.

Discussion: We begin our analysis with the reported fact that X is unrepresented. Rule 4.3 provides that "(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." We will assume that as of the moment the inquirer does not know that X has counsel. Rule 4.3 states that a lawyer shall makes a reasonable effort to correct any misunderstanding of an unrepresented party with whom the lawyer is dealing concerning the lawyer's role. This requirement seems derived from the more general proposition contained in Rule 4.1(a) that "[i]n the course of representing a client a lawyer shall not knowingly. . . " make a false statement of material fact or law to a third person." Rule 8.4(c) makes the same point even more broadly: "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . .

In the Committee's view, it is not permissible for the lawyer who is seeking information about an unrepresented party to access the personal website of X and ask X to "friend"[1] her without dis- closing that the requester is the lawyer for a potential plaintiff. In so doing, the lawyer would be engaging in deceit forbidden by Rules 4.1 and 8.4(c). See Philadelphia Bar Association Opinion 2009-2 and San Diego County Bar Association Legal Ethics Opinion 2011-2. Moreover, this is a situation where not only is X likely to misunderstand the lawyer's role but also one where the lawyer has enabled the misunderstanding. See New Hampshire Advisory Ethics Opinion 2012- 13/05. We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No. 2013-189 that the burden should be on the unrepresented party to ask about the inquirer's purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to "friend" X in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as the plaintiff's lawyer. Face- book, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion 2010-2 of the New York City Bar Associa-

418 tion's Committee that the lawyer's identification message may be contained in a "profile" created on the lawyer's personal social media page. It is well known that "friending" requests are often granted quite casually, and viewing the invitee's profile is not necessarily a mandatory step in accepting a "friend" request. The lawyer's message must accompany the "friending" request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.

It is incumbent on the inquiring lawyer to keep in mind, however, that at some point she may learn that in fact X has come to be represented by counsel. At such point, the Rules change and any communication with X becomes subject to the prohibition contained in Rule 4.2. (As to a lawyer's "knowledge" of representation, see Rule 4.2, Comment 5.) Rule 4.2 provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." This Opinion does not address any issues relating to social media when the restrictions of Rule 4.2 are involved.

This Opinion addresses only the factual situation described herein and is not meant to advise with respect to other hypothetical situations involving access to social networking sites.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.

[1] For simplicity, we refer to Facebook/Instagram terminology, but the Committee's view applies equally to connecting on LinkedIn and other similar social media.

419

Section 3$

MORRISON MAHONEY LLP COUNSELLORS AT LAW

250 SUMMER STREET BOSTON, MASSACHUSETTS 02210-1181 MASSACHUSETTS NEW HAMPSHIRE 617-439-7500 BOSTON MANCHESTER FALL RIVER NEW JERSEY SPRINGFIELD S PARSIPPANY cott Douglas Burke WORCESTER Direct Dial: 617-439-7578 CONNECTICUT NEW YORK Direct Fax: 617-342-4937 NEW YORK [email protected] HARTFORD RHODE ISLAND ENGLAND PROVIDENCE LONDON

SAMPLE ENGAGEMENT LETTER/AGREEMENT

[date]

Personal & Confidential

Mr. Bad Shape, President Defective Widgets, Inc. 13 Dire Straits Boston, MA 01970

Re: Best Widgets v. Defective Widgets Our File No.

Dear Mr. Shape:

I am writing to confirm that you have requested Morrison Mahoney LLP (“Morrison Ma- honey” or “the firm”) to protect Defective Widgets, Inc.’s (“Defective Widgets” or “you”) interests with respect to the above-referenced matter. We appreciate your confidence in our firm and are pleased to accept this engagement subject to the terms of this letter. This Agreement sets forth the terms of our services.

[Optional insert: We will not commence work on your behalf until this Agreement, executed by you, is returned with the agreed retainer/deposit.]

420 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Scope of Services

Morrison Mahoney will be providing services to you in connection with the claims asserted by Best Widgets against Defective Widgets for slander.

Because the engagement is limited to a specific undertaking, Morrison Mahoney’s acceptance of this engagement does not involve an undertaking to provide any services to you or any of your interests in any other matter unless specifically requested by you and agreed by the firm. After completion of this matter, changes may occur in pertinent laws or regulations that may have an impact upon your future rights and liabilities. Unless you engage us after completion of this matter to provide advice on issues arising from this matter, Morrison Mahoney will have no obligation to provide any advice to you with respect to future legal developments.

You may limit or expand the scope of our engagement from time to time, provided that Morrison Mahoney must agree in writing to any expansion of scope. Except as we may otherwise agree in writing, the terms of this Agreement apply to all expansions in the scope of engagement and to all additional engagements for you which the firm may undertake.

[Optional insert for ongoing client matters (e.g. corporate advice, advice to municipalities, etc.):

Morrison Mahoney will be providing ongoing services to you, as requested by authorized representatives within your organization. In order to avoid any confusion on the part of our firm or your organization as to whether we are providing legal services with regard to any particular matter, we will send a letter or email that identifies each matter for which we have been engaged. Please do not assume that we are handling any matter without such a confirmation. Because each engagement is limited to a specific undertaking, Morrison Mahoney’s acceptance of this engagement does not involve an undertaking to provide any services to you or any of your interests in any other matter unless specifically requested by you and agreed by the firm. After completion of this matter, changes may occur in pertinent laws or regulations that may have an impact upon your future rights and liabilities. Unless you engage us after completion of a particular matter to provide advice on issues arising therefrom, Morrison Mahoney will have no obligation to provide any advice to you with respect to future legal developments.

Except as we may otherwise agree in writing, the terms of this Agreement apply to all engagements for you which the firm may undertake.]

Hourly Fee Rates

421 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Morrison Mahoney has agreed to represent Defective Widgets at fees of $100 per hour for partners, and at $75 per hour for associates. Paralegal and law clerk services are billed at a rate of $20 per hour. These rates are subject to periodic adjustment, generally at the beginning of a calendar year, with 30 days notice to you.

Costs and Disbursements

In addition to the fees listed above, you will be responsible for the cost and disbursements which may be incurred in the course of our representation of you. These disbursements include court costs and filing fees, service of process fees, expert fees, transcript costs, long-distance telephone charges, facsimile charges, photocopy costs, travel expenses, computer research costs, overnight and hand-delivery charges, and any other additional charges other than the actual payment of attorneys’ fees. These charges will be based on actual charges incurred by the firm plus 0% to 10% depending on the amount of administration necessary to track the expense. In-house photocopies will be charged at less than $.15 per page (B&W) and $1.00 per page (color). Out- side vendor bills in excess of $250 will be sent directly to you for payment. You acknowledge that our relationship with vendors will be adversely impacted if you do not pay such vendor bills promptly and such failure to pay vendors will permit Morrison Mahoney LLP to cease performing services on your behalf to the extent permitted by applicable rules and/or the court. You also agree that if we, in our sole discretion, pay such vendors on your behalf, we may include such charges to you on our monthly statements.

Monthly Statements

Morrison Mahoney LLP will send you monthly statements for services performed and costs advanced, payable within thirty (30) days of the billing date. (If a monthly statement is of a nominal amount, we may hold those charges to a subsequent month.) If you fail to pay the bills for legal services sent to you, Morrison Mahoney LLP will have the right to cease performing services on your behalf, to the extent permitted by applicable rules and/or the court.

You agree to notify us in writing or by email if you dispute any work, billing entry, expense or computation. If you fail to do so within thirty (30) days after the mailing thereof, all entries and work reflected shall be deemed by both you and us to be fair, reasonable and correct.

[Optional language: Interest will be charged at a rate of eighteen (18%) percent per annum on all unpaid bills for fees and costs. In the event we initiate any proceeding to recover fees or costs, you agree to be responsible for reasonable attorney’s fees, costs and interest at 18%.]

Retainer/Deposit

422 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Morrison Mahoney requires a retainer/deposit of $10,000 for this engagement. The funds you deposit with us will ordinarily be held until the end of the engagement and applied against the firm’s final invoice for services. Any excess will be refunded to you. Morrison Mahoney may, however, at any time and at its option apply these funds to any balance that has remained outstanding for more than 60 days. In such event, you agree to replenish the retainer/deposit, or furnish a larger retainer/deposit, as Morrison Mahoney reasonably believes may be necessary to insure payment of its final invoice.

[Option 2: Morrison Mahoney requires a retainer of $10,000 for this engagement. The funds you deposit with us will be held in our IOLTA account and applied against invoices for services rendered in the following manner: One week after delivering an invoice to you, unless we hear from you to the contrary, we will assume that you agree with the charges and we will transfer the total invoice due from our IOLTA account to a firm account. You agree to replenish the retainer, or furnish a larger retainer, as Morrison Mahoney reasonable believes may be necessary to insure payment of its final invoice. The amount of the retainer may change from time to time depending upon the projected budget for future work.

[Option 3: Morrison Mahoney will forego its standard practice and not require a retainer or deposit at this time. However, you agree that if Defective Widgets fails to pay any invoice for legal services within 60 days of the billing date, Defective Widgets will provide Morrison Mahoney with a deposit to hold, upon the firm’s request, equal to two times the largest invoice to date. Such funds would be held until the conclusion of the case and applied against the final invoice. As long as Defective Widgets is consistently current in its payment (i.e. payment within 60 days of the billing date), no retainer will ever become necessary.]

Termination of Agreement

Either of us may terminate the engagement at any time for any reason by providing written notice, subject on the part of Morrison Mahoney to comply with the requirements of any applicable rules of professional conduct or rules of court. You agree that we shall have the right to withdraw from representation if you do not make payments as required by this Agreement, or if you have misrepresented or failed to disclose material facts, or failed to follow advice after a course of action has been discussed, or if you insist on taking action which we consider repugnant or with which we have a fundamental disagreement. In any of these events, you will substi- tute attorneys at our request. Unless we agree to render additional services for you, Morrison Mahoney’s work for you will terminate upon our firm sending its final statement for services rendered in this matter.

423 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

[Optional last sentence: The matter shall be deemed to be concluded and our representation under this Agreement terminated upon, at the latest, the entry of any final judgment in the trial court.]

[Optional insert if applicable to your practice: Trust Accounts and FDIC Insurance

We wish to bring to your attention how FDIC coverage of funds held in our trust account could be impacted by where you bank. Our firm's primary "pooled trust account" bank is at ______Bank("Trust Bank"). We have been assured by Trust Bank that our account is identified by it as a "pooled trust account", and, accordingly, each depositor to such account will be insured by the Federal Deposit Insurance Corporation ("FDIC") to the amount of $250,000 per depositor until December 31, 2013. However, for FDIC insurance purposes, any amount on deposit for a client will be aggregated by the FDIC with all other funds that such client may have at Trust Bank, and, the total insured amount must not exceed $250,000 to still be eligible for such FDIC protection. If protection greater than $250,000 is desired, Trust Bank is, under special circumstances, prepared to open a "special trust account" with a depositor having overnight "sweep" and "repurchase obligation" protections. It is your obligation to advise us if such protection is being requested.]

[Optional insert for Cloud storage:

Cloud Storage

Morrison Mahoney is please to use the services of Cloud Vendor X for management and storage of electronic data. All documents that are part of your file including but not limited to emails and documents provided by you or to you may be scanned and stored with Cloud Vendor X at its facilities instead of on a storage devices at our offices. All documents will be uploaded/downloaded and stored in a confidential manner in accordance with our firm’s rights and obligations to you as our client. This letter is intended to inform you of our firm’s relationship with this third-party vendor in order to provide you disclosure regarding the storage location of your file during our representation. Your signature below confirms your understanding of cloud storage and that your consent to same. If you believe that any information that you provide to us requires special protection, you agree to notify us in writing.]

Document Retention

During the course of the engagement, Morrison Mahoney shall maintain a file on your behalf that will include both documents and electronically stored information (“the file”). The file may include material such as pleadings, transcripts, exhibits, reports, contracts, wills, certifi- cates and other documents as are determined to be reasonably necessary to the representation.

424 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

The file shall be and remain your property. Morrison Mahoney may also include in the file attorney work product, mental impressions and notes (collectively “work product”). The work product shall be and remain the property of Morrison Mahoney.

At the termination of the engagement or upon our firm’s sending you its final statement, whichever occurs earlier, Morrison Mahoney will return to you all original documents that you have provided to us. Further, for a period of six (6) years (unless otherwise required by the Rules of Professional Conduct) after termination or upon our firm sending you its final statement, and provided there are no outstanding unpaid statements for fees and charges owed by you to Morrison Mahoney, you shall have the right on request to take possession of the file, not including the work product. In such event, Morrison Mahoney at its expense may make and retain copies of all or portions of the file. If you do not request possession of the file within this time period, Morrison Mahoney will have no further responsibility for the retention and maintenance of the file and may at its option dispose of all or parts of the file without further notice to you.

[Optional insert: Waiver of Privilege for Successor Counsel

As you know, I am a sole practitioner. For your protection, in the event that I die or become incapacitated so that I cannot practice law, I have arranged for a local attorney in whom I have confidence to review my files, contact my clients and handle matters on a temporary basis until you either retain my colleague or successor counsel. By entering into this Agreement, you agree to waive the attorney-client privilege so that this attorney may have access to your file. This waiver and this attorney’s involvement in my law practice only applies in the event I die or become incapacitated.]

Predictability of Results

The results, and the time required to obtain such results, in a given case will depend on many uncertain factors. Therefore, we are unable to guarantee or even predict with any degree of certainty the result in any matter. That being said, I do, however, look forward to working with you toward a successful resolution of this matter.

[Optional insert: Arbitration

Before including an arbitration provision, make sure that your insurer does not view that such a provision violates your duty to cooperate under your professional malpractice policy. Also, this language only concerns fees, not other disputes regarding services.

425 MORRISON MAHONEY LLP

Mr. Bad Shape Page [date]

Morrison Mahoney and you agree to resolve all fee disputes by binding arbitration before the Massachusetts Bar Association Fee Arbitration Board in conformity with its rules unless otherwise agreed upon in writing.]

Governing Law

This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts and the rules of the Supreme Judicial Court of Massachusetts.

In the event that you have questions or comments about our bills or services, I request that you advise me thereof promptly. It is our goal that you be fully satisfied with our services as well as the cost thereof.

If this letter correctly sets forth your understanding of our agreement, and any questions you might have concerning the same have been answered to your satisfaction, please sign and return the original of this letter and maintain a copy for your own records.

[Option: Also request that retainer/deposit, if applicable, be remitted with signed original.]

We look forward to working with you and appreciate the opportunity to be of service. Very truly yours,

Scott Douglas Burke

Accepted and Agreed to: DEFECTIVE WIDGETS, INC.

By: ______Mr. Bad Shape

Date: ______

426

Section 3%

MORRISON MAHONEY LLP COUNSELLORS AT LAW

SAMPLE NON-ENGAGEMENT LETTER

[date]

Personal & Confidential

Mrs. Jane Smith One Justice Way Salem, MA 01970

Re: Potential personal injury action

Dear Mrs. Smith:

Thank you for considering Morrison Mahoney LLP (“Morrison Mahoney” or “the firm”) regarding your claim for personal injuries. Because I understand the importance of this legal matter to you, I am writing to memorialize our conversation of earlier today.

Morrison Mahoney has reached a final conclusion that it is unable to undertake your representation. In making this decision, the firm expresses no opinion as to merits of your claim. As your rights will expire if you delay taking action, you should immediately confer with another attorney for assistance in order to pursue this matter.1 The Massachusetts Bar Association Law- yer Referral can assist you find a lawyer if you do not have the name of one available. They can be contacted by telephone at 866-MASS-LRS or on line by clicking “Need a Lawyer?” at www.massbar.org.

1 If the statute of limitations may expire within 3-6 months, it is recommended that under those circumstances, you highlight the date with language as follows: “Based on the information that you have provided to us, we believe that the time limit for you to bring these claims, if you choose to do so, is April 1, 2012. As such, it is urgent that you act immediately to obtain the opinion of another lawyer.”

427 MORRISON MAHONEY LLP

Mrs. Jane Smith Page [date]

This will also confirm that I am not charging you for any legal services and we have not provided any advice to you. Further, prior to our meeting, I advised you that you should limit the information that you provide to me to (a) the identity of all parties involved and (b) basic information regarding the matter so that the firm could determine whether to undertake your representation. Finally, all documents which you have provided to us have been returned to you.

I am sorry that we cannot be of service and we wish you every success in pursuing this matter.

Very truly yours,

Scott Douglas Burke

428 SECTION 4 Overview of the Bar Discipline System & Common Ethical Issues

Overview of the Bar Discipline System & Common Ethical Issues ...... 431

Presentation Slides ...... 439

429

430 2017 Practicing With Professionalism Program OBC & B.B.O. Presentation “Overview of the Bar Discipline System and Common Ethical Issues”

I. Overview

A. Legal profession -- largely self-regulating

See Preamble to Mass. Rules of Professional Conduct.

• Lawyers are responsible for observing the rules of professional conduct, and also for working to secure their observance by other lawyers.

B. Disciplinary enforcement

• Lawyers admitted to practice, or engaging in practice, in Massachusetts are subject to the Supreme Judicial Court’s disciplinary authority.

• The Court has adopted the Massachusetts Rules of Professional Conduct. [S.J.C. Rule 3:07]

• The rules of professional conduct govern lawyers’ conduct in both their business and personal affairs.

• The Court has also adopted rules governing bar discipline, administering the practice of law, and protecting clients’ security. [S.J.C. Rule 4:01, et seq.]

C. Massachusetts is a voluntary bar state.

• Membership in bar associations in Massachusetts is voluntary, not required.

• Lawyers are required to pay annual registration fees to the Board.

• Your lawyer registration fees are used to fund the bar discipline system, the Clients’ Security Board, and Lawyers Concerned for Lawyers.

o No taxes are spent to support the bar discipline system.

o Payments to victims of lawyer theft are also made solely from registration fees paid by lawyers.

431 D. Organization of the Board of Bar Overseers

• Board – established by the S.J.C. in 1974 as an independent administrative tribunal to consider disciplinary charges brought by the Bar Counsel, and to hear petitions for reinstatement to the bar.

• Court appoints 12 volunteer members to serve on the Board for 4-year terms.

• Eight Board members are lawyers / four Board members are non-lawyers.

• Board meets once a month.

• Hearing Committees – made up from a list of volunteer lawyers and lay members appointed by the Board.

• General Counsel’s Office – advises the Board and assists hearing committees.

• Board also oversees the Registration Office.

E. Office of Bar Counsel

• Bar counsel is an independent prosecutor appointed by the S.J.C. to investigate complaints of professional misconduct by lawyers, and to prosecute formal charges before the Board of Bar Overseers.

• The Attorney and Consumer Assistance Program (ACAP) is the intake unit of the Office of Bar Counsel. ACAP resolves routine concerns or minor disciplinary issues without opening a disciplinary file and promptly refers matters that raise issues of more serious misconduct for investigation. Always return calls from ACAP.

F. Clients’ Security Board

• Clients’ Security Board – manages and distributes monies from the Client Security Fund to members of the public whose funds have been stolen by a Massachusetts lawyer acting as a lawyer or fiduciary.

• Board is composed of seven volunteer members appointed by the S.J.C.

• General Counsel’s Office – advises the CSB Board.

G. Volunteer opportunities

• After you have been in practice for a while, consider volunteering as a hearing officer, or as counsel to a lawyer who is facing disciplinary charges.

432

II. Ten Tips for newly-admitted Massachusetts lawyers

(1). Return calls and written communications from clients promptly.

• A primary cause of complaints to OBC is the failure of lawyers to return telephone calls or respond to letters, e-mails and other communications from their clients. [Rule 1.4]

• Nothing angers a client more than not being called back promptly – try to call back within 24 hours or leave a message telling the client when you will call.

• Little is more appreciated by the client than knowing that the lawyer is thinking about the case and respecting their professional relationship.

• Good client communication is the keystone to a successful practice – if you stay in contact with your clients, you will make yourself do the work so that you have something to report. It is not an excuse that you have turned a matter over to a subordinate or support staff – you need to supervise support staff and be aware of what they are doing or not doing and communicate that information to clients as well.

• Important corollary: notify your clients promptly if something has gone wrong. Ignoring the client and, worse, lying to the client, only compounds the problem.

(2). Put it in writing.

This recommendation relates to many aspects of the attorney-client relationship. For example:

• Fee agreements – the scope of the representation and the basis and rate of the fee and expenses must be communicated to the client in writing before or within a reasonable time after commencing the representation (with some limited exceptions). [Rule 1.5(b)] [Also Rule 1.5(c) -- separate rule for contingent fee agreements]

• Non-engagement and disengagement letters – Very important to document in writing when you are declining to take a case, or when you consider the representation concluded.

• Consents to conflicts of interest – There are significant amendments to the Mass. R. Prof. C. that were approved by the S.J.C. and went into effect on July

433 1, 2015. Under Rules 1.7 (general conflicts between clients or client and lawyer) and 1.9 (former client conflicts), as well as under Rule 1.8(a) (business transactions with clients), informed consent to a conflict must in some instances be in a writing signed by the client and, in others, at a minimum be confirmed in a writing from the lawyer to the client.

• All settlement offers – especially important if the client is rejecting the offer against your advice.

• Notices of fee payments withdrawn from client funds accounts – On or before paying yourself a fee from your client funds account, you must deliver a written notice to the client with (1) an itemized bill or accounting for your services; (2) the amount and date of the fee withdrawal; and (3) a statement of the balance of the client’s funds in the account after your fee payment. [Rule 1.15(d)(2)]

(3). Provide a copy of the file promptly.

• A large number of calls to ACAP come from former clients or successor counsel in need of the case file.

• The file must be made available to the former client within a reasonable time. [Rule 1.16(e)]

• The rule sets forth different requirements depending on whether the fee is contingent or hourly and on the type of document.

• The wisest course is to hand over the file – promptly – and put off any fee disputes, or disputes over copying charges, for a later day. You cannot ransom the file.

• Note: it is rarely worth fighting with a client over the file. Clients are entitled to most if not all of the file under the rules, and withholding the file is a good way to provoke a disciplinary complaint.

• Make returning the file quickly a priority – try to send the file within a week or two, or sooner if it is an emergency.

(4). Withdraw appropriately, formally, and when required.

• You are either in the case or out of it. Don’t withhold services because you haven’t been paid.

434 • If the case is not in court, send the client a withdrawal letter, and return the file and any unearned fee. [Rule 1.16(d)]

• If the case is in court, file a motion with notice to the client and the opposing party and get the court’s permission to withdraw. [Rule 1.16(c)]

• When you file a motion to withdraw, do not disclose client confidences.

(5). Identify and avoid conflicts of interest.

• Have a conflicts-checking system and use it.

• Identify who is your client at the outset of the representation.

• Consider whether you have a personal conflict of interest. [Rule 1.7(a)(2)]

• Do not go into business with your client. If you must, tread carefully, read all the conflict rules, and advise the client in writing to confer with outside counsel on the matter. [Rule 1.8(a)]

(6). Have an appropriate trust account record-keeping system and use it.

• If you are going to be handling client or fiduciary funds, make sure you are familiar with the requirements of Rule 1.15, including:

o A detailed check register that identifies each deposit and withdrawal with client identifiers;

o Individual, chronological client ledgers for each client matter; and

o Three-way reconciliations — meaning three things reconciled two ways, the individual ledgers to the check register and the check register to the bank statement — at least every 60 days, preferably once a month.

• Retainers and funds advanced for costs and expenses are trust funds. [Rule 1.15(b)(3)]

• Inadequate trust account record-keeping is the easiest way to find yourself in serious disciplinary trouble, even without any intent to violate any of the rules. Again, this is an issue where turning the record-keeping over to a subordinate, a bookkeeper or a secretary or office manager, buys you nothing as a disciplinary or malpractice matter if the records aren’t being kept properly and you aren’t aware of that fact.

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• The detailed trust account rules are designed for your protection, as well as for your clients’ protection.

• If you will be handling client funds or other trust funds, call our office and sign up for the free trust account training session given monthly between October and June, or contact LOMAP, the Law Office Management Assistance Program that your bar dues funds, or do both.

• And remember, never pay your bar dues with an IOLTA check.

(7). Be aware of the limits of advocacy, particularly trial advocacy.

• We are advocates, and zealous representation is required, but that does not mean that anything goes.

• Remember your role as a counselor when dealing with an overly aggressive client. [Rules 1.2 and 4.4]

• As an officer of the court, you have duties of candor to the tribunal and of fairness to opposing parties. [Rules 3.3 and 3.4]

• Use particular caution when dealing with unrepresented opposing parties. [Rule 4.3]

• These issues also occur outside of the litigation context – for example, never notarize a document unless a signing party is in front of you. (This mistake often occurs in the context of trying to help a client or someone else.)

(8). Keep your clients’ confidences.

• Do not discuss your client’s case in public without client consent, even if the substance of the representation is contained in a public record, such as a trial record.

• Be aware of inadvertent disclosures through email and other forums. Make sure any support staff you employ or use are trained in this regard.

• Do not bad mouth your clients to successor counsel.

(9). Be civil.

436 • Perceived rudeness is a factor in approximately 6 percent of inquiries to bar counsel. If you are nice to your clients, as well as forthright, they are much more likely to accept that we all make mistakes.

• Complaints have been received from clients, opposing parties, and opposing counsel.

• Civility also counts in your dealings with court officials and other third parties.

(10). Just say no.

• Use care in accepting new cases. You do the client no favor by accepting a case that probably should never see the light of day. If you are too busy, or otherwise unable to handle the case, decline the case.

• If investigation reveals that a case is not viable, let the client know. Seek to withdraw early to avoid harm to the client.

• When something goes wrong, tell the client promptly. Tell the client the truth.

• If a client or supervising attorney asks you to do something that violates your professional obligations, just say no.

III. Finding Answers to Ethical Questions

• If you have ethical questions, you can call the Office of Bar Counsel at 617- 728-8750, on Monday, Wednesday, and Friday, from 2:00 p.m. to 4:00 p.m., and speak to an assistant bar counsel.

• Check out our website at www.mass.gov/obcbbo (includes links to the rules; answers to frequently asked questions; articles on ethics prepared by assistant bar counsel; disciplinary decisions dating back to 1999; information on upcoming programs and new developments; and other resources)

• Trust account training programs – monthly free programs (check our website); also training/information is available through LOMAP, the IOLTA Committee, and periodic MCLE and bar association courses.

IV. What to do if a complaint does get filed with Bar Counsel.

• Answer any calls from ACAP.

437 • Answer correspondence from bar counsel.

• Consider retaining counsel. (Your professional liability policy usually provides coverage).

• Review your file.

• Do not avoid the tough questions.

• Talk to the client and finish the work if the client wants you to.

• Show someone else the answer before filing it.

• A cover-up is almost always worse than the alleged misconduct.

• Remember, it is very hard to lose your license.

Rev. 1/21/2016

438 Overview of the Bar Discipline System and Common Ethical Issues

2017 Practicing With Professionalism Program

I. Overview

A. The legal profession is largely self-regulating.

B. Disciplinary enforcement • Lawyers in Massachusetts are subject to the Supreme Judicial Court’s disciplinary authority.

439 C. Massachusetts is a voluntary bar state.

• Lawyer registration fees are used to fund the bar discipline system, the Clients’ Security Board, and Lawyers Concerned for Lawyers.

D. Organization of the Board of Bar Overseers

• Board • Hearing Committees • General Counsel’s Office • Registration

E. Office of the Bar Counsel, including ACAP

440 F. Clients’ Security Board

G. Volunteer opportunities

II. Ten Tips for newly- admitted Massachusetts lawyers

441 (1). Return calls and written communications from clients promptly.

Important corollary: notify your clients promptly if something has gone wrong. Ignoring the client and, worse, lying to the client, only compound the problem.

(2). Put it in writing.

• Fee agreements • Non-engagement and disengagement letters • Consents to conflicts of interest • All settlement demands and settlement offers • Notices of fee payments withdrawn from client funds accounts

(3). Provide a copy of the file promptly. • Give the former client the requested file promptly. • You cannot ransom the file for unpaid legal fees.

442 (4). Withdraw appropriately, formally, and when required.

(5). Identify and avoid conflicts of interest.

(6). Have an appropriate trust account record- keeping system, and use it.

If you handle client or fiduciary funds, be sure to keep the records required by Mass. R. Prof. C. 1.15, including: • A detailed check register that identifies each deposit and withdrawal with client identifiers; • Individual, chronological client ledgers for each client matter; and • Three-way reconciliations at least every 60 days, preferably once a month.

443 (7). Be aware of the limits of advocacy, particularly trial advocacy.

(8). Keep your clients’ confidences.

(9). Be civil.

444 (10). Just say no.

III. Finding Answers to Ethical Questions • Call the Office of Bar Counsel at 617-728-8750, on Monday, Wednesday, and Friday, from 2:00 p.m. to 4:00 p.m., and speak to an assistant bar counsel. • Check out our website: www.mass.gov/obcbbo. • Attend a trust account training program.

IV. What to do if a complaint does get filed with Bar Counsel.

• Answer any calls from ACAP. • Answer all correspondence from bar counsel. • Consider retaining counsel. (Your professional liability policy usually provides coverage). • Review your file. • Do not avoid the tough questions. • Talk to the client and finish the work if the client wants you to. • Show someone else the answer before filing it. • A cover-up is almost always worse than the alleged misconduct. • Remember, it is very hard to lose your license.

445

446 SECTION 5 Why Every Lawyer Should Be Interested in Cultural Competency

Articles by Ronald E. Wheeler Jr., Fineman & Pappas Law Libraries, Boston University School of Law, Boston

Helping Courts Address Implicit Bias ...... 449

Michael Brown, Eric Garner, and Law Librarianship ...... 473

Soft Skills—The Importance of Cultivating Emotional Intelligence ...... 483

We All Do It: Unconscious Behavior, Bias, and Diversity ...... 489

447

448 Helping Courts Address Implicit Bias Frequently Asked Questions*

1) What is Implicit Bias?

Unlike explicit bias (which reflects the attitudes or beliefs that one endorses at a conscious level), implicit bias is the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control. The underlying implicit attitudes and stereotypes responsible for implicit bias are those beliefs or simple associations that a person makes between an object and its evaluation that “...are automatically activated by the mere presence (actual or symbolic) of the attitude object” (Dovidio, Gaertner, Kawakami, & Hudson, 2002, p. 94; also Banaji & Heiphetz, 2010). Although automatic, implicit biases are not completely inflexible: They are malleable to some degree and manifest in ways that are responsive to the perceiver’s motives and environment (Blair, 2002).

Implicit bias research developed from the study of attitudes. Scientists realized long ago that simply asking people to report their attitudes was a flawed approach; people may not wish or may not be able to accurately do so. This is because people are often unwilling to provide responses perceived as socially undesirable and therefore tend to report what they think their attitudes should be rather than what they know them to be. More complicated still, people may not even be consciously aware that they hold biased attitudes. Over the past few decades, scientists have developed new measures to identify these unconscious biases (see FAQ #3: How is implicit bias measured?).

*Preparation of this project brief was funded by the Open Society Institute, the State Justice Institute, and the National Center for State Courts. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. The document summarizes the National Center for State Courts’ project on implicit bias and judicial education. See Casey, Warren, Cheesman, and Elek (2012), available at www.ncsc.org/ibreport for the full report of the project. 1

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What do researchers think are 2) the sources of implicit bias?

Although scientists are still working to understand implicit bias, current theory and evidence indicate that it may arise from several possible sources (as listed by Rudman, 2004). These interrelated sources include:

Developmental History

Implicit bias can develop over time with the accumulation of personal experience. Personal experiences include not only traditional learning experiences between the self and the target (i.e., classical conditioning; Olson & Fazio, 2001), but also social learning experiences (i.e., via observing parents, friends, or influential others; Greenwald & Banaji, 1995). For example, implicit biases in children are positively correlated with the implicit biases of their parents; however, consistent with social learning theory (Bandura, 1997), this congruence occurs only between children who identify with their parents and not for children who do not have a positive attachment relationship with their parents (Sinclair, Dunn, & Lowery, 2005). Implicit biases can develop relatively quickly through such experiences: Implicit racial bias has been found in children as young as 6 years old, and discrepancies between implicit and explicit attitudes emerge by the age of 10 (Baron & Banaji, 2006).

Affective Experience

Implicit bias may develop from a history of personal experiences that connect certain racial groups with fear or other negative affect. Recent developments in the field of cognitive neuroscience demonstrate a link between implicit (but not explicit) racial bias and neural activity in the amygdala, a region in the brain that scientists have associated with emotional learning and fear conditioning. Specifically, White individuals who score highly on measures of implicit racial bias

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also react to images of unfamiliar Black faces with stronger amygdala activation (Phelps, O’Connor, Cunningham, Funayama, Gatenby, Gore, & Banaji, 2000; see also Stanley, Phelps, & Banaji, 2008). Other researchers have demonstrated a causal relationship between the experience of certain types of emotions and the emergence of implicit bias, showing that inducing people to experience anger or disgust can create implicit bias against newly encountered outgroups (Dasgupta, DeSteno, Williams, & Hunsinger, 2009). Another study found that increased exposure to a socially valued Black instructor in the context of a diversity education course decreased participants’ implicit bias against Blacks, and that a reduced fear of Blacks – in addition to other affective factors – predicted this attitudinal change (Rudman, Ashmore, & Gary, 2001).

Culture

People share a common social understanding of the stereotypes that are pervasive in our culture, and this knowledge can foster implicit bias even if a person does not necessarily endorse the cultural stereotype (Devine, 1989; Fazio, Jackson, Dunton, & Williams, 1995). One explanation is that people implicitly make associations and evaluations based on cultural knowledge in a way that “may not be available to introspection and may not be wanted or endorsed but is still attitudinal because of its potential to influence individual perception, judgment, or action” (Nosek, 2007, p. 68 [emphasis added]). Another explanation offered by Nosek (2007) is that responses on implicit measures are easily influenced by cultural knowledge, but that this cultural knowledge does not reflect the respondent’s actual attitude (e.g., Karpinski & Hilton, 2001).

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The Self

People tend to possess consistent and strongly positive attitudes toward themselves, and this positive attitude about the self can transfer very easily to other things, people, and groups that share attributes with the self (for a review, see Banaji & Heiphetz, 2010). This transference can occur without conscious awareness; hence, such effects are termed “implicit egotism.” For example, people demonstrate a biased preference for new products that resemble their own names (Brendl, Chattopadhyay, Pelham, & Carvallo, 2005). They appear to be disproportionately likely to live in locations that reflect their birth date (e.g., people born on February 2nd and residing in the town of Two Rivers, Wisconsin) and to choose careers or marry others with names that resemble their own (e.g., people named Dennis or Denise in dentistry, a marriage between two unrelated Smiths). They are also more attracted than usual to others who have been assigned an allegedly random experimental code number that matches their birth dates and whose alleged surnames share letters with their own surnames (Pelham, Mirenberg, & Jones, 2002; Jones, Pelham, Carvallo, & Mirenberg, 2004). Provocative and strange, this research illustrates the impressive automaticity of the human mind and the influence of implicit processes in our daily lives. Fundamental attitudes toward the self may underlie implicit racial bias by facilitating a general tendency to prefer one’s ingroup (a group with which one identifies in some way) over outgroups (any group with which one does not affiliate; see Greenwald, Banaji, Rudman, Farnham, Nosek, & Mellott, 2002). As Rudman (2004) explains, people tend to believe that “If I am good and I am X [X being any social group with which one identifies], then X is also good” (p. 137; italicized text added).

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452 Helping Courts Address Implicit Bias

3) How is Implicit Bias measured? Researchers use a number of scientific methods in the measurement of implicit bias (for reviews, see Fazio & Olson, 2003; Gawronski, 2009; Wittenbrink & Schwarz, 2007). Although the specific procedures involved in the individual approaches differ widely, implicit measures take on one of the following three general forms:

Computerized Measures

Computerized implicit measures typically gauge the direction and strength of a person’s implicit attitudes by assessing their reaction times (i.e., response latencies) when completing a specific computerized task. The exact nature of each task varies, but usually falls into one of two classes of procedures (see Wittenbrink & Schwarz, 2007): sequential priming or response competition.

Sequential priming procedures. Sequential priming procedures are based on a long history of evidence in the field of cognitive psychology demonstrating that when two concepts are related in memory, the presentation of one of those concepts facilitates the recall or recognition of the other (see Neely, 1991). In the context of racial bias, people with a negative implicit racial bias toward Blacks will more quickly and easily respond to concepts associated with the negative stereotype of Blacks than concepts that are not associated with that stereotype. One popular procedure for measuring this phenomenon is the evaluative priming task or “bona-fide pipeline” (Fazio, Sanbonmatsu, Powell, & Kardes, 1986). In this task, respondents are briefly presented with a Black or White face immediately before a positive or negative target word appears on the screen. They must then identify, as quickly as possible, the meaning of the presented word as “good” or “bad.” In the standard paradigm, respondents with racial bias more quickly identify negative words as “bad” and more slowly identify positive

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words as “good” when that word appears immediately after the presentation of a Black face (Fazio, et al., 1995). A similar priming procedure, called the Affect Misattribution Procedure (AMP; Payne, Cheng, Govorun, & Stewart, 2005), briefly presents respondents with a prime of a Black or White face before viewing a neutral Chinese character they know they must evaluate as more or less visually pleasant than the average Chinese character. These researchers found that individuals’ racial attitudes colored their evaluations of the characters, with White respondents reporting more favorable ratings for characters that appeared after White primes than Black primes. This effect emerged even when respondents received a forewarning about the influence of the racial primes on subsequent evaluations.

Response competition procedures. Another approach to implicit attitude measurement emerged from research on interference effects. Specifically, when a target has multiple different meanings (e.g., the word “red” written in blue font), these different meanings can imply competing responses (e.g., color identification as red or blue) in a given task that can slow down the overall performance of the respondent (note that the well-known Stroop effect is one example of interference effects at work; see Stroop, 1935; MacLeod, 1991). These implicit measures, called response competition procedures (Wittenbrink & Schwarz, 2007), takes advantage of the informational value of interference effects by presenting two competing categorization tasks in a single procedure and measuring response latencies. Thus, unlike the sequential priming procedures discussed above in which shorter response times indicate bias, longer response times denote implicit bias when response competition procedures are used. One of the most popular of these types of measures is the Implicit Association Test (IAT; Greenwald, McGhee, & Schwartz, 1998). In the IAT, respondents are asked to categorize a sequence of images (as a Black or White face) and words (as either good or bad) by pressing one of two pre- labeled buttons. For example, the respondent may be instructed to press the left

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button whenever they see a Black face or whenever a negative word appears, and to press the right button whenever they see a White face or a positive word. Alternatively, they may be informed to press one button when they see a Black face or positive word, and the other button for a White face or negative word. Because of interference effects, individuals who associate “Black” with “bad,” for example, will respond much more slowly when “Black” and “good” share the same response button. Related measures include the Go/No-Go Association Task (GNAT; see Nosek & Banaji, 2001) and the Extrinsic Affective Simon Task (EAST; see De Houwer, 2003).

Paper & Pencil Measures

Several paper & pencil measures of implicit attitudes exist (see Vargas, Sekaquaptewa, & von Hippel, 2007 for a review). Some of these measures are simply adaptations of existing computerized assessments. Although researchers have primarily focused on developing manual adaptations of the IAT (e.g., Kitayama & Uchida, 2003; Lemm, Sattler, Khan, Mitchell, & Dahl, 2002), Vargas and colleagues (2007) suggest that the AMP (see description under “Computerized Measures,” above) may be more easily adapted to a paper & pencil format because the procedure does not involve measurement of response time.

Other paper & pencil implicit measures assess memory accessibility. One example is the Word Fragment Completion (WFC) task, in which people are presented with fragments of words (e.g., POLI_E) and are asked to fill in the missing letters. These word fragments, however, can be completed in stereotypic or non-stereotypic ways (e.g., POLITE, POLICE; Gilbert & Hixon, 1991). The number of stereotypic word completions in the WFC task has been used as an implicit measure of racial prejudice (e.g., Son Hing, Li, & Zanna, 2002).

Finally, two other implicit bias measurement approaches assess attributional processing styles. One such example is the Stereotypic Explanatory Bias (SEB;

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Sekaquaptewa, Espinoza, Thompson, Vargas, & von Hippel, 2003), which is the tendency to ascribe the stereotype-consistent behavior of minorities to factors intrinsic to the individual (e.g., trait or dispositional attributions like hard work or talent), but stereotype-inconsistent behavior to extrinsic, situational factors (e.g., the weather, luck). Similarly, the Linguistic Intergroup Bias (LIB; Maass, Salvi, Arcuri, & Semin, 1989) is the tendency to describe stereotypic behavior using abstract language (e.g., by ascribing the behavior to a global trait) but non-stereotypic behavior using concrete language (e.g., by describing the behavior as a specific event). By carefully examining the respondent’s choice of language or agreement with particular summaries of a behavioral event, researchers have used these tendencies as indicators of implicit prejudice (see von Hippel, Sekaquaptewa, & Vargas, 1997 and Sekaquaptewa, et al. 2003).

Physiological Measures

Psychologists have long expressed interest in determining the physiological correlates of psychological phenomena. Those interested in the study of intergroup attitudes have examined autonomic nervous system responses such as the amount of sweat produced (e.g., Rankin & Campbell, 1955), heart rate (e.g., Shields & Harriman, 1984), and even small facial muscle movements that are nearly imperceptible to the untrained human eye (e.g., Vanman, Saltz, Nathan, & Warren, 2004; Mahaffey, Bryan, & Hutchison, 2005). More recently, neuroscientists have attempted to understand the neural underpinnings of implicit bias (e.g., Stanley, Phelps, & Banaji, 2008; Cunningham, Johnson, Gatenby, Gore, & Banaji, 2003). With further technological advances in physiological measurement, researchers will gain greater insight into the connection between psychological and physiological phenomena that could make some physiological techniques invaluable in the measurement and study of implicit bias. Given the current state of the science, however, the following common techniques are appropriate for advancing scientific understanding of implicit bias, but not for the detection of implicit bias (i.e., “diagnosing” implicit bias in an individual). Frequently Asked Questions 8

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Common physiological measures used in the study of attitudes (as described more thoroughly in reviews by Banaji & Heiphetz, 2010; Blascovich & Mendes; 2010, and Ito & Cacioppo, 2007) include:

EDA. The measurement of sweat production is interchangeably referred to as skin conductance response (SCR), galvanic skin response (GSR), and electrodermal activity (EDA). When an individual experiences greater arousal in response to a stimulus, the eccrine glands in the skin (particularly in the hands and feet) excrete more sweat (Banaji & Heiphetz, 2010, p. 363). However, sweat production as a response and, therefore, EDA as a measurement tool do not discriminate between positive and negative responses to a stimulus. That is, by itself, EDA provides no information about the valence of the individual’s response, but simply detects arousal. For example, as Banaji & Heiphetz (2010) explain, greater EDA in the presence of Black individuals but not White individuals (Rankin & Campbell, 1955) indicates only that the respondent reacts more strongly to the Black individual, and not that the reaction is necessarily a negative one.

Cardiovascular responses. Although a number of techniques have been used to measure cardiac and vasomotor responses, the most common measurement is that of heart rate. Like EDA, heart rate is a valence-insensitive measure of autonomic nervous system arousal and therefore cannot be used to distinguish between positive and negative reactions to a stimulus.

EMG. Facial electromyography (EMG) is the measurement of electrical activity associated with facial muscle contractions. With this technique, researchers can detect the presence of muscle movements and measure the amplitude of the response. Unlike some of the earlier measures discussed, however, the facial EMG can be used to assess response valence because different facial muscles are associated with positive and negative reactions. One study found that greater cheek EMG activity towards Whites than Blacks predicted racial

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bias in participant selection decisions when evaluating candidates for a teaching fellowship (Vanman, Saltz, Nathan, & Warren, 2004). Unlike the IAT, the facial EMG remained unaffected by participants’ motivation to control for prejudiced responses, indicating its potential value as a measure of implicit attitudes.

Another physiological measure, the startle eyeblink response, relies on similar response mechanisms; however, only highly arousing stimuli evoke a startle response, limiting the utility of this measurement approach.

fMRI. Functional magnetic resonance imaging (fMRI) is a relatively new technique that measures blood flow in the brain. Because increased blood flow in any specific region of the brain signals increased activity in that region, blood flow can be used as a proxy measure for neural activity. In a groundbreaking study, Phelps, O’Connor, Cunningham, Funayama, Gatenby, Gore, and Banaji (2000) demonstrated a correlation between the degree of activation in the amygdala region of the brain, as measured by fMRI, and scores on the IAT; moreover, people exhibit greater amygdala activation when processing negative, rather than positive, stimuli (Cunningham, Johnson, Gatenby, Gore, & Banaji, 2003). Although other brain areas are involved in social cognitive processes like implicit bias, the amygdala has been extensively studied because it is so important to evaluation and preference development (Banaji & Heiphetz, 2010).

ERP. Event-related brain potentials (ERPs) are measurable electrical signals emitted by brain activity (i.e., neural firing) and provide information on the strength and valence of a person’s response to a stimulus. Because this technique measures real-time changes (within milliseconds) in neural activity, researchers can correlate individual ERP data with specific temporal events (e.g., changes in brain activity from a baseline measurement after exposure to a photo of a Black man). Several specific components of ERPs (e.g., larger late-positive potentials or LPPs; Ito, Thompson, & Cacioppo, 2004) provide information about an individual’s responses to others that are related to implicit bias (for more information, see Ito & Cacioppo, 2007, pp. 134-138). Frequently Asked Questions 10

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Does Implicit Bias matter much in the 4) real world?

A recent meta-analysis of 122 research reports found that one implicit measure (the IAT) effectively predicted bias in a range of relevant social behaviors, social judgments, and even physiological responses (r = .274; Greenwald, Poehlman, Uhlmann, & Banaji, 2009). Implicit bias can influence a number of professional judgments and actions in the “real world” (see Jost, Rudman, Blair, Carney, Dasgupta, Glaser & Hardin, 2009) that may have legal ramifications.

Some particularly relevant examples are:

Police Officers: The Decision to Shoot

Police officers face high-pressure, high-risk decisions in the line of fire. One seminal research report reveals that these rapid decisions are not immune to the effects of implicit biases. Specifically, college participants in this study played a computer game in which they needed to shoot dangerous armed characters as quickly as possible (by pressing a “shoot” button), but decide not to shoot unarmed characters (by pressing a “don’t shoot” button). Some of the characters held a gun, like a revolver or pistol, and some of the characters held innocuous objects, like a wallet or cell phone. In addition, half of the characters were White, and half were Black. Study participants more quickly chose to shoot armed Black characters than armed White characters and more quickly chose not to shoot unarmed White characters than unarmed Black characters. They also committed more “false alarm” errors, electing to shoot unarmed Black characters more than unarmed White characters and electing not to shoot armed White characters more than armed Black characters (Correll, Park, Judd, & Wittenbrink, 2002). This research was inspired by the 1999 New York City shooting of Guinean immigrant Amadou Diallo: Police officers fired 41 rounds and killed Diallo as he

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pulled out a wallet. Other studies produced similar results with police officers and community members, and also showed that training and practice can help to reduce this bias (e.g., Correll, Park, Judd, Wittenbrink, Sadler, & Keesee, 2007; Plant & Peruche, 2005; Plant, Peruche, & Butz, 2005).

Physicians: Treatment Decisions

Physicians routinely make crucial decisions about medical care for patients whose lives hang in the balance. In the face of such high stakes, it may be surprising to think that automatic associations can unknowingly bias professional decision- making. One study showed that the implicit racial biases of ER physicians predicted fewer thrombolysis treatment recommendations when the patient was described as Black as opposed to White (Green, Carney, Pallin, Ngo, Raymond, Iezzoni, & Banaji, 2007). The implicit racial biases of White physicians also seem to play a role in predicting how positively or negatively Black patients respond to the medical interaction (Penner, Dovidio, West, Gaertner, Albrecht, Daily, & Markova, 2010), which might lead to a greater incidence of malpractice lawsuits (cf. Stelfox, Gandhi, Orav, & Gustafson, 2005).

Managers: Hiring Decisions

When screening a pool of job candidates, hiring managers must review hundreds if not thousands of resumes of qualified applicants. Studies show that interview and selection decisions reflect bias against minorities (e.g., Dovidio & Gaertner, 2000; Bertrand & Mullainathan, 2004; Ziegert & Hanges, 2005). In one such study, hiring managers were three times less likely to call highly qualified Arab job candidates in for an interview compared to equally qualified candidates of the racial majority. Interestingly, the implicit racial bias scores of hiring managers predicted their likelihood of offering callbacks to the Arab job applicants (Rooth, 2010).

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Judges and Jurors: Capital Punishment and Sentencing

If implicit biases can affect both the intuitive, split-second decisions of police officers and sway the more deliberate decisions of physicians and hiring managers, it stands to reason that judges and jurors may exhibit similar tendencies. Indeed, one archival study of 600 death-eligible cases in Philadelphia appears to support this possibility. Researchers identified all cases (n=44) in which a Black male defendant was convicted of murdering a White victim and presented a photograph of each defendant to participants, who in turn rated each defendant on how “stereotypically Black” he appeared to be. Stereotypicality of appearance predicted death penalty sentencing outcomes: 57.5% of those judged as more stereotypically Black were sentenced to death, compared to 24.4% of those who were perceived as less stereotypically Black (Eberhardt, Davies, Purdie-Vaughns, & Johnson, 2006). Eberhardt and colleagues explain this effect in the context of other empirical research (Eberhardt, Goff, Purdie, & Davies, 2004) that demonstrates a tendency to implicitly associate Black Americans with crime. Other studies further illustrate racial biases in the context of detain-release decisions, verdicts, and sentencing (e.g., Gazal-Ayal & Sulitzeanu-Kenan, 2010; Sommers & Ellsworth, 2001).

Voters and Other Decision-Makers

Other research also shows that implicit racial biases can predict voting intentions and behavior. In one study of 1,057 registered voters, pro-White implicit bias scores predicted reported intent to vote for McCain over Obama a week before the 2008 U.S. Presidential election (Greenwald, Smith, Sriram, Bar-Anan, & Nosek, 2009). Another study found that, after controlling for explicit prejudice, voters who were more implicitly prejudiced against Blacks were less likely to vote for Obama and more likely to abstain from the vote or vote for third party candidates (Payne, Krosnick, Pasek, Lelkes, Akhtar, & Tompson, 2010). Implicit biases may, in particular, help “tip the scales” for undecided decision-makers (e.g., Galdi, Arcuri, & Gawronski, 2008). Frequently Asked Questions 13

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What are the key criticisms of 5) Implicit Bias research?

The mounting research evidence on the phenomenon of implicit bias may lead to two disconcerting conclusions: (1) People know less about their own mental processes than common sense would suggest, and (2) overt racism may be diminishing, but subtler forms of racism persist. As is often the case with provocative science, this program of research has its proponents and its skeptics. Scholarly debate revolves primarily around the definition and appropriate measurement of implicit bias, and some have questioned the existence of implicit bias as an attitudinal phenomenon.

Some individuals stridently resist the idea of implicit racial prejudice and are vocal about their opposition (e.g., Mitchell & Tetlock, 2006; Wax & Tetlock, 2005). These individuals argue that they are “under no obligation to agree when a segment of the psychological research community labels the vast majority of the American population unconsciously prejudiced on the basis of millisecond reaction-time differentials on computerized tests. It is our view that the legal community should require evidence that scores on these tests of unconscious prejudice map in replicable functional forms onto tendencies to discriminate in realistic settings…” and that, because of this and because the IAT is informed by a variety of factors that “cannot plausibly be labeled precursors to discrimination,” the IAT does not tap into “100% pure prejudice” (Mitchell & Tetlock, 2009).

In response to these criticisms, the proponents of implicit bias argue that the large body of research over several decades and hundreds of neuroscientific, cognitive, and social psychological studies has produced sufficient if not overwhelming evidence to support the existence of the kinds of automatic negative associations referred to as “implicit bias” (for a review and one of many direct responses to the opposing allegations of Tetlock and colleagues,

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see Jost et al., 2009). An exponentially increasing number of empirical studies demonstrate a relationship between measures of implicit bias and real-world discriminatory behavior (see FAQ #4: Does Implicit Bias Matter Much in the Real World?, above). Moreover, attitudes are flexible constructs—not rigid ones— and one’s expressed attitude at any given moment is responsive to a variety of relevant and seemingly irrelevant factors. For example, one now-classic study showed that people’s judgments of even their own life satisfaction could be influenced by incidental factors such as the weather (i.e., sunny or cloudy) on the day they were surveyed (Schwarz & Clore, 1983). Similarly, the expression of implicit bias is sensitive to a range of sometimes subtle moderating factors (e.g., see Blair, 2002).

A key component of the implicit bias controversy is the concern that the IAT, specifically, is problematic. Some believe that proponents of the IAT overstate the consequentiality of their research findings (e.g., Blanton & Jaccard, 2008; Blanton & Jaccard, 2006), and others argue that although evaluative priming measures may be construed as “automatic evaluations,” what exactly the IAT technique measures is debatable (Fazio & Olson, 2003). Indeed, the IAT and a popular evaluative priming implicit measure, the bona-fide pipeline, fail to show correspondence with one another even though both are supported by empirical evidence demonstrating correspondence with actual behavior (Olson & Fazio, 2003). These researchers and others (e.g., Karpinski & Hilton, 2001) argue that the IAT measures not attitudes but extrapersonal associations acquired through the environment, whether those associations are personally endorsed at an attitudinal level or not. In response to this assertion, Nosek (2007) argues that regardless of whether these implicit processes are labeled as attitudes or as associations, the effect is still the same: These automatic processes are capable of guiding our thoughts and actions in predictable—and biased—ways.

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Opponents of the IAT have gone on to propose a number of alternative explanations to discount the IAT as a measure of implicit bias, although variation in the interpretation of how the phenomenon is defined may be partly responsible for this scholarly discord. Proponents of the IAT have thus far presented evidence discrediting several, but not all, of these alternative explanations (e.g., Dasgupta, Greenwald, & Banaji, 2003; Nosek, Greenwald, & Banaji, 2005; Greenwald, Nosek, & Banaji, 2003; see Dr. Anthony Greenwald’s IAT Page for a complete listing of relevant research). These disparate views will likely be resolved as the science advances and new methods for the measurement of implicit bias are developed.

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What can people do to mitigate the 6) effects of Implicit Bias on judgement and behavior? Once people are made aware of their own implicit biases, they can begin to consider ways in which to address them. Scientists have uncovered several promising implicit bias intervention strategies that may help individuals who strive to be egalitarian:

• Consciously acknowledge group and individual differences (i.e., adopt a multiculturalism approach to egalitarianism rather than a color-blindness strategy in which one tries to ignore these differences) • Routinely check thought processes and decisions for possible bias (i.e., adopt a thoughtful, deliberative, and self-aware process for inspecting how one’s decisions were made) • Identify sources of stress and reduce them in the decision-making environment • Identify sources of ambiguity and impose greater structure in the decision- making context • Institute feedback mechanisms • Increase exposure to stereotyped group members (e.g., seek out greater contact with the stigmatized group in a positive context)

For more detailed information on promising debiasing strategies, see Appendix G in Casey, et al. (2012).

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465 Helping Courts Address Implicit Bias

Can people eliminate or change an 7) Implicit Bias?

There is a difference between reducing the influence of implicit bias on decisions (see FAQ #6: What can people do to mitigate the effects of implicit bias on judgment and behavior?) and reducing implicit bias itself. Although implicit bias is malleable, many “debiasing” strategies seem to only temporarily reduce or shift it. Longer-term change might be possible only through substantial and persistent effort (for a discussion about the conditional limitations of some existing strategies for reducing implicit bias, see Joy-Gaba & Nosek, 2010).

If applied long-term, people may be able to reduce or eliminate implicit bias by modifying their underlying implicit attitudes. Generally, increased contact with or exposure to a stigmatized social group in a positive context may reduce prejudice toward that group over time (e.g., Binder, Zagefka, Brown, Funke, Kessler, Mummendey, et al., 2009) and may even reduce prejudice toward other out-groups in general (Tausch, Hewstone, Kenworthy, Psaltis, Schmid, Popan, et al., 2010). Reductions in implicit bias, specifically, have occurred as a result of longer-term exposure to minorities in socially valued roles (Dasgupta & Rivera, 2008; Dasgupta & Asgari, 2004), in the context of diversity education (Rudman, Ashmore, & Gary, 2001), and even as a result of simply imagining (rather than actually encountering) counter-stereotypes (Blair, Ma, & Lenton, 2001). In addition, some research indicates that people who have developed chronic egalitarian goals may be able to beat implicit bias at its own game by automatically inhibiting implicit stereotypes (e.g., Moskowitz & Li, 2011; Moskowitz, Salomon, & Taylor, 2000).

Frequently Asked Questions 18

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References

Banaji, M., & Heiphetz, L. (2010). Attitudes. In S. Fiske, D. Gilbert, & G. Lindzey (Eds.), Handbook of social psychology, 5th edition (pp. 348-388). New York: Wiley.

Bandura, A. (1997). Self-efficacy: The exercise of control. New York: W.H. Freeman.

Baron, A., & Banaji, M. (2006). The development of implicit attitudes: Evidence of race evaluations from ages 6 and 10 and adulthood. Psychological Science, 17, 53-58.

Bertrand, M., & Mullainathan, S. (2004). Are Emily and Greg more employable than Lakisha and Jamal? A field experiment on labor market discrimination. American Economic Review, 94, 991-1013.

Binder, J., Zagefka, H., Brown, R., Funke, F., Kessler, T., Mummendey, A., et al. (2009). Does contact reduce prejudice or does prejudice reduce contact? A longitudinal test of the contact hypothesis among majority and minority groups in three European countries. Journal of Personality and Social Psychology, 96, 843-856.

Blair, I. (2002). The malleability of automatic stereotypes and prejudice. Personality and Social Psychology Review, 6, 242-261.

Blair, I., Ma, J., & Lenton, A. (2001). Imagining stereotypes away: The moderation of implicit stereotypes through mental imagery. Journal of Personality and Social Psychology, 81, 828-841.

Blanton, H., & Jaccard, J. (2006). Arbitrary metrics in psychology. American Psychologist, 61, 27-41.

Blanton, H., & Jaccard, J. (2008). Unconscious racism: A concept in pursuit of a measure. Annual Review of Sociology, 34, 277-297.

Blascovich, J., & Mendes, W. (2010). Social psychophysiology and embodiment. In S. Fiske, D. Gilbert, & G. Lindzey (Eds.), Handbook of social psychology, 5th edition. New York: Wiley.

Brendl, C., Chattopadhyay, A., Pelham, B., & Carvallo, M. (2005). Name letter branding: Valence transfers when product specific needs are active. Journal of Consumer Research, 32, 405-415.

Casey, P., Warren, R., Cheesman, F., & Elek, J. (2012). Helping courts address implicit bias: Resources for education. Williamsburg, VA: National Center for State Courts.

Correll, J., Park, B., Judd, C., & Wittenbrink, B. (2002). The police officer’s dilemma: Using ethnicity to disambiguate potentially threatening individuals. Journal of Personality and Social Psychology, 83, 1314-1329.

Correll, J., Park, B., Judd, C., Wittenbrink, B., Sadler, M., & Keesee, T. (2007). Across the thin blue line: Police officers and racial bias in the decision to shoot. Journal of Personality and Social Psychology, 92, 6, 1006-1023. doi:10.1037/0022-3514.92.6.1006

Frequently Asked Questions 19

467 Helping Courts Address Implicit Bias

Cunningham, W., Johnson, M., Gatenby, J., Gore, J., & Banaji, M. (2003). Neural components of social evaluation. Journal of Personality and Social Psychology, 85, 639-649.

Dasgupta, N., & Asgari, S. (2004). Seeing is believing: Exposure to counterstereotypic women leaders and its effect on the malleability of automatic gender stereotyping. Journal of Experimental Social Psychology, 40, 642-658.

Dasgupta, N., DeSteno, D., Williams, L., & Hunsinger, M. (2009). Fanning the flames of prejudice: The influence of specific incidental emotions on implicit prejudice. Emotion, 9, 585-591.

Dasgupta, N., Greenwald, A., & Banaji, M. (2003). The first ontological challenge to the IAT: Attitude or mere familiarity? Psychological Inquiry, 14, 238-243.

Dasgupta, N., & Rivera, L. (2008). When social context matters: The influence of long-term contact and short-term exposure to admired outgroup members on implicit attitudes and behavioral intentions. Social Cognition, 26, 112-123.

De Houwer, J. (2003). The Extrinsic Affective Simon Task. Experimental Psychology, 50, 77-85.

Devine, P. (1989). Stereotypes and prejudice: Their automatic and controlled components. Journal of Personality and Social Psychology, 56, 680-690.

Dovidio, J., & Gaertner, S. (2000). Aversive racism and selection decisions: 1989 and 1999. Psychological Science, 11, 315-319.

Dovidio, J., Gaertner, S., Kawakami, K., & Hodson, G. (2002). Why can’t we just get along? Interpersonal biases and interracial distrust. Cultural Diversity and Ethnic Minority Psychology, 8, 88-102.

Eberhardt, J., Davies, P., Purdie-Vaughns, V. & Johnson, S. (2006). Looking deathworthy: Perceived stereotypicality of Black defendants predicts capital-sentencing outcomes. Psychological Science, 17, 383-386.

Eberhardt, J., Goff, P., Purdie, V., & Davies, P. (2004). Seeing Black: Race, crime, and visual processing. Journal of Personality and Social Psychology, 87, 876-893.

Fazio, R., Jackson, J., Dunton, B., & Williams, C. (1995). Variability in automatic activation as an unobtrusive measure of racial attitudes: A bona fide pipeline? Journal of Personality and Social Psychology, 69, 1013-1027.

Fazio, R., & Olson, M. (2003). Implicit measures in social cognition research: Their meaning and use. Annual Review of Psychology, 54, 297-327.

Fazio, R., Sanbonmatsu, D., Powell, M., & Kardes, F (1986). On the automatic activation of attitudes. Journal of Personality and Social Psychology, 50, 229-238.

Galdi, S., Arcuri, L., & Gawronski, B. (2008). Automatic mental associations predict future choices of undecided decision-makers. Science, 321, 1100-1102.

Frequently Asked Questions 20

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Gawronski, B. (2009). Ten frequently asked questions about implicit measures and their frequently supposed, but not entirely correct answers. Canadian Psychology, 50, 141-150.

Gazal-Ayal, O., & Sulitzeanu-Kenan, R. (2010). Let my people go: Ethnic in-group bias in judicial decisions - Evidence from a randomized natural experiment. Journal of Empirical Legal Studies, 7, 403-428.

Gilbert, D., & Hixon, J. (1991). The trouble of thinking: Activation and application of stereotypic beliefs. Journal of Personality and Social Psychology, 60, 509-517.

Green, A., Carney, D., Pallin, D., Ngo, L., Raymond, K., Iezzoni, L., & Banaji, M. (2007). The presence of implicit bias in physicians and its prediction of thrombolysis decisions for Black and White patients. Journal of General Internal Medicine, 22, 1231-1238.

Greenwald, A., & Banaji, M. (1995). Implicit social cognition: Attitudes, self-esteem, and stereotypes. Psychological Review, 102, 4-27.

Greenwald, A., Banaji, M., Rudman, L., Farnham, S. Nosek, B., & Mellot, D. (2002). A unified theory of implicit attitudes, stereotypes, self-esteem, and self-concept. Psychological Review, 109, 3-25.

Greenwald, A., McGhee, D., & Schwartz, J. (1998). Measuring individual differences in implicit cognition: The Implicit Association Test. Journal of Personality and Social Psychology, 74 , 1464-1480.

Greenwald, A., Nosek, B., & Banaji, M. (2003). Understanding and using the Implicit Association Test: I. An improved scoring algorithm. Journal of Personality and Social Psychology, 85, 197-216.

Greenwald, A., Poehlman, T., Uhlmann, E., & Banaji, M. (2009). Understanding and using the Implicit Association Test: III. Meta-analysis of predictive validity. Journal of Personality and Social Psychology, 97, 17-41.

Greenwald, A., Smith, C., Sriram, N., Bar-Anan, Y., Nosek, B. (2009). Implicit race attitudes predicted vote in the 2008 U.S. presidential election. Analyses of Social Issues and Public Policy, 9, 241-253.

Ito, T., & Cacioppo, J. (2007). Attitudes as mental and neural states of readiness. In B. Wittenbrink and N. Schwarz (Eds.), Implicit measures of attitudes (pp. 125-158). New York: Guilford.

Ito, T., Thompson, E., & Cacioppo, J. (2004). Tracking the timecourse of social perception: The effects of racial cues on event-related brain potentials. Personality and Social Psychology Bulletin, 30, 1267-1280.

Jones, J., Pelham, B., Carvallo, M., & Mirenberg, M. (2004). How do I love thee? Let me count the Js: Implicit egotism and interpersonal attraction. Journal of Personality and Social Psychology, 87, 665-683.

Frequently Asked Questions 21

469 Helping Courts Address Implicit Bias

Jost, J., Rudman, L., Blair, I., Carney, D., Dasgupta, N., Glaser, J., et al. (2009). The existence of implicit bias is beyond reasonable doubt: A refutation of ideological and methodological objections and executive summary of ten studies that no manager should ignore. Research in Organizational Behavior, 29, 39-69.

Joy-Gaba, J., & Nosek, B. (2010). The surprisingly limited malleability of implicit racial evaluations. Social Psychology, 41, 137-146.

Karpinski, A., & Hilton, J. (2001). Attitudes and the Implicit Association Test. Journal of Personality and Social Psychology, 81, 774-788.

Kitayama, S., & Uchida, Y. (2003). Explicit self-criticism and implicit self-regard: Evaluating self and friend in two cultures. Journal of Experimental Social Psychology, 39, 476-482.

Lemm, K., Sattler, D., Khan, S., Mitchell, R., & Dahl, J. (2002). Reliability and validity of a paper- based implicit association test. Paper presented at the fourth annual convention of the Society for Personality and Social Psychology, Savannah, GA.

Maass, A., Salvi, D., Arcuri, L., & Semin, G. (1989). Language use in intergroup contexts: The linguistic intergroup bias. Journal of Personality and Social Psychology, 57, 981-993.

MacLeod, C. (1991). Half a century of research on the Stroop effect: An integrative review. Psychological Bulletin, 109,163–203.

Mahaffey, A., Bryan, A., & Hutchison, K. (2005). Using startle eye blink to measure the affective component of antigay bias. Basic and Applied Social Psychology, 35, 537-545.

Mitchell, G., & Tetlock, P. (2006). Antidiscrimination law and the perils of mindreading. Ohio State Law Journal, 67, 1023-1122.

Mitchell, G., & Tetlock, P. (2009). Facts do matter: A reply to Bagenstos. Hofstra Law Review, 37, 737-762.

Moskowitz, G., & Li, P. (2011). Egalitarian goals trigger stereotype inhibition: A proactive form of stereotype control. Journal of Experimental Social Psychology, 47, 103-116.

Moskowitz, G., Salomon, A., & Taylor, C. (2000). Preconsciously controlling stereotyping: Implicitly activated egalitarian goals prevent the activation of stereotypes. Social Cognition, 18, 151-177.

Neely, J. H. (1991). Semantic priming effects in visual word recognition: A selective review of current findings and theories. In D. Besner, & G. W. Humphreys (Eds.), Basic processes in reading (pp. 264–336).Hillsdale, NJ: Lawrence Erlbaum Associates.

Nosek, B. (2007). Implicit-explicit relations. Current Directions in Psychological Science, 16, 65-69.

Nosek, B., & Banaji, M. (2001). The Go/No-go Association Task. Social Cognition, 19, 626-666.

Frequently Asked Questions 22

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Nosek, B., Greenwald, A., & Banaji, M. (2005). Understanding and using the Implicit Association Test: II. Method variables and construct validity. Personality and Social Psychology Bulletin, 31, 166-180.

Olson, M., & Fazio, R. (2001). Implicit attitude formation through classical conditioning. Psychological Science, 12, 413-417.

Olson, M., & Fazio, R. (2003). Relations between implicit measures of prejudice: What are we measuring? Psychological Science, 14, 636-639.

Payne, K., Cheng, C., Govorun, O., & Stewart, B. (2005). An inkblot for attitudes: Affect misattribution as implicit measurement. Journal of Personality and Social Psychology, 89, 277-293.

Payne, K., Krosnick, J., Pasek, J., Leikes, Y., Ahktar, O., & Thompson, T. (2010). Implicit and explicit prejudice in the 2008 American presidential election. Journal of Experimental Psychology, 46, 367-374.

Pelham, B., Mirenberg, M., & Jones, J. (2002). Why Susie sells seashells by the seashore: Implicit egotism and major life decisions. Journal of Personality and Social Psychology, 82, 469-487.

Penner, L., Dovidio, J., West, T., Gaertner, S., Albrecht, T., Dailey, R., & Markova, T. (2010). Aversive racism and medical interactions with Black patients: A field study. Journal of Experimental Social Psychology, 46, 436-440.

Phelps, E., O’Connor, K., Cunningham, W., Funayama, E., Gatenby, J., Gore, J., & Banaji, M. (2000). Performance on indirect measures of race evaluation predicts amygdale activation. Journal of Cognitive Neuroscience, 12, 729-738.

Plant, E., & Peruche, B. (2005). The consequences of race for police officers’ responses to criminal suspects. Psychological Science, 16, 180-183.

Plant, E., Peruche, B., & Butz, D. (2005). Eliminating automatic racial bias: Making race non-diagnostic for responses to criminal suspects. Journal of Experimental Social Psychology, 41, 141-156.

Rankin, R., & Campbell, D. (1955). Galvanic skin response to Negro and white experimenters. Journal of Abnormal and Social Psychology, 51, 30-33.

Rooth, D. (2010). Automatic associations and discrimination in hiring: Real world evidence. Labour Economics, 17, 523-534.

Rudman, L. (2004). Social justice in our minds, homes, and society: The nature, causes, and consequences of implicit bias. Social Justice Research, 17, 129-142.

Rudman, L., Ashmore, R., & Gary, M. (2001). “Unlearning” automatic biases: The malleability of implicit prejudice and stereotypes. Journal of Personality and Social Psychology, 81, 856-868.

Schwarz, N., & Clore, G. (1983). Mood, misattribution, and judgments of well-being: Informative and directive functions of affective states. Journal of Personality and Social Psychology, 45, 513-523. Frequently Asked Questions 23

471 Helping Courts Address Implicit Bias

Sekaquaptewa, D., Espinoza, P., Thompson, M., Vargas, P., & von Hippel, W. (2003). Stereotypic explanatory bias: Implicit stereotyping as a predictor of discrimination. Journal of Experimental Social Psychology, 39, 75-82.

Shields, S., & Harriman, R. (1984). Fear of male homosexuality: Cardiac responses of low and high homonegative males. Journal of Homosexuality, 10, 53-67.

Sinclair, S., Dunn, E., & Lowery, B. (2005). The relationship between parental racial attitudes and children’s implicit prejudice. Journal of Experimental Social Psychology, 41, 283-289.

Sommers, S., & Ellsworth, P. (2001). White juror bias: An investigation of prejudice against Black defendants in the American courtroom. Psychology, Public Policy, and Law, 7, 201-229.

Son Hing, L., Li, W., & Zanna, M. (2002). Inducing hypocrisy to reduce prejudicial responses among aversive racists. Journal of Experimental Social Psychology, 38, 71-78.

Stanley, D., Phelps, E., & Banaji, M. (2008). The neural basis of implicit attitudes. Current Directions in Psychological Science, 17, 164-170.

Stelfox, H., Gandhi, T., Orav, E., & Gustafson, M. (2005). The relation of patient satisfaction with complaints against physicians and malpractice lawsuits. American Journal of Medicine, 118, 1126-1133.

Stroop, J. (1935). Studies of interference in serial verbal reactions. Journal of Experimental Psychology, 18, 643–662.

Tausch, N., Hewstone, M., Kenworthy, J., Psaltis, C., Schmid, K., Popan, J., et al. (2010). Secondary transfer effects of intergroup contact: Alternative accounts and underlying processes. Journal of Personality and Social Psychology, 99, 282-302.

Vanman, E., Saltz, J., Nathan, L., & Warren, J. (2004). Racial discrimination by low-prejudiced Whites: Facial movements as implicit measures of attitudes related to behavior. Psychological Science, 15, 711-714.

Vargas, P., Sekaquaptewa, D., & von Hippel, W. (2007). Armed only with paper and pencil: “Low-tech” measures of implicit bias. In B. Wittenbrink and N. Schwarz (Eds.), Implicit measures of attitudes, pp. 103-124. New York: Guilford.

von Hippel, W., Sekaquaptewa, D., & Vargas, P. (1997). The linguistic intergroup bias as an implicit indicator of prejudice. Journal of Experimental Social Psychology, 33, 490-509.

Wax, A., & Tetlock, P. (2005, December 1). We are all racists at heart. Wall Street Journal, A16.

Wittenbrink, B., & Schwarz, N., Eds. (2007). Implicit measures of attitudes. New York: Guilford.

Ziegert, J., & Hanges, P. (2005). Employment discrimination: The role of implicit attitudes, motivation, and a climate for racial bias. Journal of Applied Psychology, 90, 553-562.

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MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP

Boston University School of Law Public Law & Legal Theory Paper No. 16-04

Law Library Journal Vol. 107:3 [2015-22]

Ronald Wheeler Boston University School of Law

This paper can be downloaded without charge at:

http://www.bu.edu/law/faculty-scholarship/working-paper-series/

473 Electronic copy available at: http://ssrn.com/abstract=2716114 LAW LIBRARY JOURNAL Vol. 107:3 [2015-22]

Diversity Dialogues . . .

Michael Brown, Eric Garner, and Law Librarianship*

Ronald Wheeler**

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

¶1 There are times in our history when societal events cause us to step back and reflect on the severity, significance, and impact of the developments of the day. For me, the summer of 2014 was one such time. During that summer we saw the fatal police chokehold of forty-three-year-old Eric Garner in July,1 the fatal police shooting of eighteen-year-old Michael Brown in August,2 and the resulting national outcry in cities and towns across the United States.3 I found myself struggling to make sense of these events and to sort through the almost constant barrage of related media stories, commentary, and protest coverage. For those of us working with the public, with students, or with legal professionals, current events frequently come up in conversation or in the course of our duties. Thus impromptu discussions of these events with coworkers, law library patrons, students, and others grappling to comprehend these seemingly senseless occurrences were almost unavoidable. So, as a way to make sense of these events for myself and to describe their potential impact on our lives as law librarians, I penned this installment of Diversity Dialogues.

The Facts

¶2 On Thursday, July 17, 2014, forty-three-year-old Eric Garner was approached on Staten Island, N.Y., by police officers who suspected him of selling cigarettes ille-

* © Ronald Wheeler, 2015. ** Director of the Law Library and Information Resources, and Associate Professor of Legal Research, Suffolk University Law School, Boston, Massachusetts. 1. See, e.g., Deborah E. Bloom & Jareen Imam, New York Man Dies After Chokehold by Police, CNN (updated Dec. 8, 2014, 5:31 PM), http://www.cnn.com/2014/07/20/justice/ny-chokehold-death/. 2. See, e.g., David Von Drehle, The Long, Tangled Roots of the Michael Brown Shooting, TIME (Aug. 12, 2014), http://time.com/3104128/michael-brown-ferguson-cop-shooting-protests/. 3. See, e.g., Joanna Walters, Thousands March in New York over Garner and Brown Police Deaths, GUARDIAN (Aug. 23, 2014, 4:34 PM), http://www.theguardian.com/world/2014/aug/23/new -york-eric-garner-rally-michael-brown.

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gally.4 Garner, who was unarmed, pulled away when officers tried to handcuff him, and he was put into a chokehold, pulled to the ground, and held around the neck until he lost consciousness.5 Garner went into cardiac arrest as he was being placed into custody and died a short time later.6 The entire scene was caught on video where Garner “can be heard saying ‘I can’t breathe’ over and over again as officers swarm about.”7 “The medical examiner’s office determined that the chokehold, as well as compression to the chest, caused Mr. Garner’s death, and ruled it a homicide.”8 In September 2014, a grand jury “heard testimony from the officers involved and twenty-two citizen witnesses. All of the officers, with the exception of Officer [Dan- iel] Pantaleo, were granted immunity.”9 Officer Pantaleo, who administered the fatal chokehold on Garner, testified before a separate grand jury, which cleared him of any criminal charges.10 Although many of the early newspaper accounts contain no mention of race, widely circulated video footage of the incident shows that Eric Garner was black and the officers involved in his detention and killing were white.11 ¶3 Unrelatedly, on the afternoon of August 9, 2014, an unarmed, black eighteen- year-old Michael Brown and another man were approached by an officer in a patrol car12 as they were walking home from a convenience store in Ferguson, Missouri.13 As the officer began to leave his vehicle, an altercation ensued, there was a struggle, and at least one shot was fired.14 Brown allegedly ran, the officer gave chase, and at some point Brown turned to face the police officer who then opened fire.15 The officer, Darren Wilson, fired a total of twelve times, and Brown was killed.16 A grand jury met twenty-three times between August 20 and November 21, 2014, hearing testimony to decide whether to indict Wilson for his part in Brown’s death.17 Ultimately, the grand jury brought no criminal charges against Wilson, who is white.18

4. Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises Old Issue for the Police, N.Y. TIMES, July 18, 2014, at A1. 5. Id. 6. Staten Island Man Dies After Police Try to Arrest Him, N.Y. TIMES (July 17, 2014), http://www .nytimes.com/2014/07/18/nyregion/staten-island-man-dies-after-police-try-to-arrest-him.html?_r=0. 7. Goldstein & Schweber, supra note 4. 8. David Goodman & Michael Wilson, Officer Told Jury He Meant No Harm, N.Y. TIMES, Dec. 4, 2014, at A29. 9. David Goodman & Al Baker, New York Officer Facing No Charges in Chokehold Case, N.Y. TIMES, Dec. 4, 2014, at A1. 10. Goodman & Wilson, supra note 8. 11. “I Can’t Breathe”: Eric Garner Put in Chokehold by NYPD Officer—Video, GUARDIAN (Dec. 4, 2014, 2:46 PM), http://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garner -chokehold-death-video. 12. Julie Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. TIMES, Aug. 11, 2014, at A11. 13. The Death of Michael Brown, N.Y. TIMES, Aug. 13, 2014, at A22. 14. Bosmen & Fitzsimmons, supra note 12. 15. Dave Urbanski, The Facts Surrounding Michael Brown’s Alleged “Hands up, Don’t Shoot!” Cry Matter Little to Many, BLAZE (Nov. 27, 2014, 9:40 PM), http://www.theblaze.com/stories/2014/11/27 /the-facts-surrounding-michael-browns-alleged-hands-up-dont-shoot-cry-matter-little-to-many/. 16. Rachel Clarke & Mariano Castillo, Michael Brown Shooting: What Darren Wilson Told the Ferguson Grand Jury, CNN INT’L ED. (Nov. 26, 2014), http://edition.cnn.com/2014/11/25/justice /ferguson-grand-jury-documents/. 17. Id. 18. Monica Davey & Julie Bosman, Grand Jury Declines to Indict Police Officer in Ferguson Killing, N.Y. TIMES, Nov. 25, 2014, at A1.

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My Social Reality

¶4 These two incidents and the protests that they generated caused me to ask myself, “What is really going on here?” Let’s think about this. Armed police officers are empowered to use force in the course of their regular duties, and sometimes suspects and others are injured or killed as these officers attempt to keep the peace. I doubt that anyone would dispute this characterization. However, the simultaneous reality is that “young black males . . . are . . . at a far greater risk of being shot dead by police than their white counterparts—21 times greater, according to a ProPublica analysis of federally collected data on fatal police shootings.”19 “The 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.”20 For those of us who are black, or who care about boys or young men who are black (or likely to be perceived as black21), this statistical reality is a very difficult one to wake up to every day. Yet, it is something we endure as part of our social reality. The news of the Garner and Brown killings merely confirmed our ever-present fears. This is why the protests in response to the Garner and Brown killings and the related grand jury verdicts came as no surprise to me.22 They made complete sense. They made me feel sane and understood and vindicated and finally, finally heard. ¶5 My ten-year-old multiracial godson is unusually tall for his age. I am shocked that he is so young and yet just a couple of inches shorter than me—even though his Garifuna-Honduran father and Trinidadian-American mother could both be described as tall. To the average person, my godson could appear, even at ten, to be a tall, teenaged, black youth. I think about this all of the time, and I am terrified.23 He has no idea how his size and his immaturity may combine to produce what police officers or others might interpret as inappropriate responses to direct orders. If spoken to harshly by police, he might run or talk back rather than stop and remain silent. I worry that he might appear threatening or menacing when responding with childish or childlike anger or frustration in a confrontation with police or others. I anguish over the likelihood of his pulling away or lashing out if grabbed or cornered by police. I agonize over the very real possibility that his actions could be misinterpreted as aggressive or combative and that he could be harmed as a result. So the frustration, anger, and dismay voiced by protesters around the country over the killings of Eric Garner and Michael Brown, who were

19. Ryan Gabrielson et al., Deadly Force, in Black and White, PROPUBLICA (Oct. 10, 2014, 10:07 AM), http://www.propublica.org/article/deadly-force-in-black-and-white. 20. Id. 21. Those of us with biracial or multiracial families and friends understand that it is the appearance and not the reality of race that determines how one is treated by society and by the police. 22. Walters, supra note 3. 23. Black men in the United States live with a universal fear and commonly held understanding of the danger implicit in and the possibility of police interactions because of the likelihood of mis- identification, unjust or unlawful stops, police harassment, or even violence. See, e.g., Charles M. Blow, Library Visit, Then Held at Gunpoint, N.Y. TIMES, Jan. 26, 2015, at A21 (N.Y. Times columnist’s account of his son, a Yale student, being stopped at gunpoint by the Yale police).

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both unarmed, gave voice to grievances of my own that until now had remained unspoken.24

The Fear Behind the Reality

¶6 It is an oversimplification at best to say that black youth being disproportionately killed by police officers is merely the result of racially motivated hate. It is just too easy to say that white police officers hate black people (and other people of color), so here we are with our current social reality. I simply don’t buy it. I think the problem is far more complex than that. What it comes down to, in my mind, is fear—fear and the irrational things that fear can drive people to do or not do.25 ¶7 Quite recently, I was attending a conference in Washington, D.C. I had made my way out to the American University Washington College of Law for a meeting, and I wanted to get a taxi back to my hotel.26 I asked the extremely accommodating reception personnel at the law school to call me one, and I stood out on the sidewalk waiting. I soon noticed a taxi approaching. I moved closer to the curb, and stuck my hand out to indicate that I was, in fact, seeking a taxi. I then watched the taxi slow down while the driver leaned over to examine me visually. The driver then picked up speed and drove past me without stopping. Well, I thought, that must not have been my taxi. So, after waiting another twenty minutes, I asked the reception folks to call a taxi for me a second time. Unbelievably, the exact same scenario played out a second time. Shockingly, it then happened a third time all within an hour. Three taxis, three drive-bys, and not one stop. After waiting for an hour, I angrily downloaded the Uber app27 on my phone, entered my credit card information, and got myself a ride in minutes. My point here is that it did not matter at all that I am perhaps the least scary cab fare on the planet; what mattered was that taxi drivers are sometimes afraid to pick up black men. The fear evinced here is irrational and misplaced, but it is nonetheless real, and it impacts my life in real and thankfully non-life-threatening ways. Moreover, this very same racialized fear can cause much more serious harms than the mere inconveniences that I suffered that day. ¶8 Years ago—I must have been in college then—I found myself walking down a fairly deserted city street just after dark. I am a relatively fast walker, and I often find myself overtaking and passing pedestrians incapable of keeping pace with me. That night, I noticed that I was walking up behind a young white woman. Imme-

24. Part of the public response to these incidents included young people and parents talking about and using the phrase “Hands up, don’t shoot” as both a political critique and sign of defiance and protest, as well as providing last resort guidance for young black people when dealing with police. See, e.g., Landon Jones, How “Hands Up, Don’t Shoot” Could Start a Real Revolution, TIME (Dec. 4, 2014), http://time.com/3618295/eric-garner-ferguson-hands-up-dont-shoot/. 25. I don’t suggest here that fear is the only factor. Nor do I mean to minimize the existence of systemic racism, which I believe to be a major factor. What I suggest is that our racialized social and political histories combine to infuse our everyday interactions with elements of fear that are exacer- bated by race. 26. For a map of the exact location of the Washington College of Law, see https://goo.gl/maps /jkTQe. 27. UBER, https://www.uber.com/ (last visited Aug. 24, 2015), is an electronic application that connects drivers to riders and thus bypasses traditional taxi services.

477 Vol. 107:3 [2015-22] MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP 471 diately the thought occurred to me that this scenario could play out badly. She will undoubtedly be frightened by the swift approach of a young black man behind her. Might she scream? Run? Pull a weapon? How will I be impacted? If she screams, might someone come to the rescue? How should I then respond? At best it will be an embarrassing scene. At worst it could be deadly. All of these thoughts converged in my mind, and I felt obliged to act to prevent what I felt was the inevitable result of fear. So I slowed my pace and crossed the street taking pains to tread loudly to signal my presence. I noticed her turn and take note of my presence and my movement away from her. Her expression was one of concern but not panic. I felt relieved and also irritated. This circumstance was neither my fault nor hers. We were both pawns in a game whose rules were not of our making. Scenarios like this one have happened to me many times throughout the years. I continue to feel help- less and trapped in an unfortunate reality dictated by fear. ¶9 It is far too easy to dismiss these anecdotes as isolated incidents or to chalk them up as misinterpretations on my part. But they no doubt ring true and are familiar to black men reading this piece. Stereotypes about race underlie the fear that fuels these occurrences. “There exists [in our society] a stereotypical, yet robust, understanding of blackness as ‘badness.’”28 “The social distance between blacks and whites in America fosters the possibility of misunderstanding and mis- translation of communications and behavior.”29 This social distance, this mistrans- lation, the stereotypes and the fear converge, and the result is that I become one to be feared by taxi drivers and women alone on the streets.

Fear, Blackness, and Mental Illness

¶10 One of the things that came to mind for me immediately after reading about Eric Garner and the circumstances surrounding his death was the likelihood that mental illness may have been a factor. This man was forty-three years old, formerly employed, and selling single cigarettes on the streets.30 “He had been arrested more than thirty times, often accused of selling loose cigarettes bought outside the state.”31 The idea that a forty-three-year-old man continued to commit misdemeanors over and over seemed telling to me. Others have pointed out that repeatedly committing nonviolent misdemeanors like peeing in public, littering, panhandling, and selling single cigarettes is often associated with “immaturity, low social status, mental illness, low intelligence” and other problems.32 However, as is all too often the case, race and fear combine to turn what may have been an unthreatening

28. Camille A. Nelson, Racializing Disability, Disabling Race: Policing Race and Mental Status, 15 BERKELEY J. CRIM. L. 1, 19 (2010). 29. Id. 30. Goldstein & Schweber, supra note 4. 31. Id. 32. Pasquale55, Comment to Joe Coscarelli, Asthmatic Man Dies After NYPD Puts Him in a Chokehold; Horrifying Video Shows Him Telling Cops “I Can’t Breathe” at Least 9 Times, N.Y. MAG. (July 18, 2014, 10:39 AM), http://nymag.com/daily/intelligencer/2014/07/horrifying-video-man-dies-after -nypd-chokehold.html.

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mentally ill black man into a dangerous threat to public safety.33 Part of what we do know is that “people of color who are mentally ill, or whose mental situation is unstable, are at greater risk of being subjected to police brutality.”34 Rightly or wrongly, “the convergence of criminality and mental impairment often leads to stereotyping of the mentally ill as violent.”35 Add to that the potential influences of racialized fear, and the probability of violent police responses to mentally ill suspects of color escalates.

Race and Law Librarianship

¶11 So where do all of these events and all of these phenomena leave us as we navigate our daily lives as law librarians? How is any of this relevant to those who may feel somewhat unaffected by the race-related occurrences described above? ¶12 Simply put, “race affects our day-to-day work as law librarians . . . , [and] . . . this includes those of us who are white.”36 In her piece Race and the Reference Librarian, Mary Whisner correctly points out that race and racial issues permeate almost every aspect of the law, both criminal and civil.37 Yet racial issues are not always clear. Even though issues of race may be present and even salient, they may also remain unmentioned in legal opinions.38 Uncovering these racial issues may require extralegal research, statistical analysis, social science inquiry, and more.39 As Whisner so aptly puts it, “not all of our work is simply reacting to someone else’s questions, and we can incorporate race ourselves.”40 When we know that race impacts a particular patron’s query, we can suggest they investigate the racial issues. We can be ready with sources or we can suggest examples. We can choose not to ignore what we know to be part of our social reality. We can demonstrate through our professional interactions with patrons what legal scholars have proven to be true, that racial issues are interesting and important.41 ¶13 Showing an interest in racial justice and issues of race helps to break down barriers, expose as false perceived misunderstandings, and shed light on commonly held perceptions of a race-infused reality. As Whisner quite astutely points out, it helps law students of color (and patrons of color more generally) feel more wel-

33. See generally Nelson, supra note 28 (analyzing how the police and the criminal justice system are ill equipped to deal with the intersection of race and mental illness). 34. Id. at 7; see also NAT’L INST. OF JUSTICE & BUREAU OF JUSTICE STATISTICS, USE OF FORCE BY POLICE: OVERVIEW OF NATIONAL AND LOCAL DATA, at viii (1999), available at https://www.ncjrs.gov/pdf files1/nij/176330-1.pdf (finding that “use of force is more likely to occur when police are dealing with persons under the influence of alcohol or drugs or with mentally ill individuals.”). 35. Nelson, supra note 28, at 19. 36. Mary Whisner, Race and the Reference Librarian, 106 LAW LIBR. J. 625, 625, 2014 LAW LIBR. J. 34, ¶ 1. 37. Id. at 626, ¶ 2. 38. Id. at 629–30, ¶ 5 (providing examples of rulings where race remained unmentioned but was nonetheless profoundly important or determinative). 39. Id. at 630, ¶ 5. 40. Id. 41. See, e.g., Margalynne J. Armstrong & Stephanie M. Wildman, Teaching Race/Teaching White- ness: Transforming Colorblindness to Color Inisght, 86 N.C. L. REV. 635, 668–70 (2007–2008).

479 Vol. 107:3 [2015-22] MICHAEL BROWN, ERIC GARNER, AND LAW LIBRARIANSHIP 473 come.42 I would add to that, it helps people of color feel more understood, and it unmasks the truth that even those of us who are white can have a common understanding of how race impacts us all daily. It may even help to erode the fear that lies beneath our racialized reality. ¶14 On August 3, 2015, I happened to very briefly glance at Facebook while at work (something I almost never do), and I saw the following editorial cartoon43 on a longtime friend’s page.44

¶15 She’d commented, “I’m still thinking about this. You?”45 This friend happens not to be a person of color. She is, however, incredibly smart, indescribably funny, and devoted to issues of social justice.46 Days later, I am only now realizing the impact this illustration had on me.47 It caused me to smile, and then it caused me to question its humor. I wondered what must be wrong with me that I find humor in this dark cartoon. Yet I kept thinking about it. Then I found myself going back to Facebook, after work of course, to read the comments posted by other

42. Whisner, supra note 36, at 631, ¶ 7. 43. Bruce Plante, TULSA WORLD (Aug. 1, 2015, 12:00 AM), http://www.tulsaworld.com/ (go to http://www.tulsaworld.com/opinion/bruceplante/, then scroll to the date). Courtesy of Bruce Plante/ Tulsa World. 44. Lynn Perls, FACEBOOK (Aug. 3, 2015, 5:57 P.M.), https://www.facebook.com/lynn.perls?fref=ts (on file with author). 45. Id. 46. See Law Office of Lynn Perls, http://www.perlslaw.com/about.html (last visited Aug. 24, 2015) (describing Lynn Perls’s family law practice, which has done cutting-edge work for nontraditional families for more than twenty years but which only hints at her lifelong devotion to and ongoing work for issues of social justice). 47. In fact, I was so affected by this illustration that I felt compelled to contact the editor of this journal and add it to this essay long after the editorial deadline had passed.

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friends. I even searched the Tulsa World website to read the more than fifty comments posted there.48 What I discovered is that this process was healing for me. It gave me an outlet for my anger and helplessness and discontent. It showed me that, indeed, others were still thinking about this. The comments taught me that opinions differ about these issues and that respectful, sometimes collegial, and earnest discussion is extremely useful. More than anything, however, this illustration taught me that humor, irony, and art are powerful and important tools for a society grappling with difficult social and political problems. So I will now add irony and humor to the law librarian’s toolkit for engaging on difficult societal issues like the intersection of race and police violence. ¶16 What I have found most important, for myself and for the students, faculty, and others whom I serve is to remain willing to engage with them about the difficult developments of the day.49 As I struggled to make sense of the events of the summer of 2014, I very often felt ill equipped to engage with patrons. I wanted to retreat from discussions of Garner, Brown, and their aftermath. I resented attempts to draw me out on these subjects. Yet I ultimately found that maintaining a willingness to grapple with these topics, especially in conversations with students, was useful and healing and restorative and educational. It signaled to students my willingness to go the extra mile, to struggle along with them to make sense of difficult and emotional issues. It exposed to them my humanity, my vulnerability, and my empathy. It made us all closer and more engaged with one another, even when we disagree.

Conclusion

¶17 Most legal information professionals are tasked, at least in part, with keeping up with legal, business, and sociopolitical current events. That work informs our work with patrons attempting to solve legal problems, students learning to solve legal problems, patrons analyzing the law, or those applying the law to contemporary legal issues. Thus when current events involving the law, the criminal justice system, law enforcement, and race relations ignite in the way that the Garner and Brown events did, they can have a profound impact on our professional lives. I found this to be true in my own professional life. In particular, my commitment to contributing a regular piece to Law Library Journal on issues of diversity seemed to require me to comment on these issues. So I offer these musings as part of our profession’s ongoing dialogue on diversity. In part, my goal here is to publicly grapple with my own emotions around these events. But, perhaps more important, I hope to illustrate to my professional colleagues that your patrons, your coworkers, and your professional peers may also be struggling to make sense of these events.

48. Plante, supra note 43. 49. It is important to acknowledge that these issues are more far-reaching than Michael Brown, Eric Garner, and the summer of 2014. One estimate found that in the year following Michael Brown’s death, 314 black Americans were killed by police. See Elizabeth Kiefer, 314 Black Americans Have Been Killed by Police Since Michael Brown’s Shooting, REFINERY29 (Aug. 7, 2015, 6:00 PM), http:// www.refinery29.com/2015/08/92023/ferguson-anniversary-black-people-killed-by-police-officers# .kt7l4c:HmkM.

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Living in a diverse society demands that we all do exactly that, continue to struggle with events like these. We may not all agree on causes or solutions, but it is the willingness to struggle as a profession and as a society that ensures our collective humanity.

482

SOFT SKILLS THE IMPORTANCE OF CULTIVATING EMOTIONAL INTELLIGENCE

Boston University School of Law Public Law & Legal Theory Paper No. 16-06

AALL Spectrum, January/February 2016

January 20, 2016

Ronald E. Wheeler Boston University School of Law

This paper can be downloaded without charge at:

http://www.bu.edu/law/faculty-scholarship/working-paper-series/

483 Electronic copy available at: http://ssrn.com/abstract=2719155 SOFT SKILLS THE IMPORTANCE OF CULTIVATING EMOTIONAL INTELLIGENCE

have always really enjoyed human interaction. All of my life, I have Can “people skills” known that my greatest joys and my most crushing disappointments be taught? How came from my personal and professional human relationships. This reality is one that I have always embraced. For me, it means that I emotional intelligence am one of those “people who need people” that Barbra Streisand can help pave your sings about. These characteristics feel innate to me. I think of myself Ias a super-extrovert, and the fact that I grew up in a household full of way to success. super-introverts seems to underscore the immutability of extroversion. I feel lucky to have somehow inherited these innate people skills. However, BY RONALD E. WHEELER the more I study and break down what we think of as “people skills” or “soft skills” into discrete parts, I discover that, although perhaps partly innate, these soft skills can be developed and improved with work, reflection, and practice.

28 AALL SPECTRUM | WWW.AALLNET.ORG 484 I read somewhere that organizations hire people for their hard skills, but they end up firing people for their lack I ﬁrmly believe the more we are in touch with our emotions ... of soft skills. As a law library person- the more we sense these emotions in others … and the more we nel manager, this statement resonates can appropriately express our emotions … the better we are with me. So, what are these hard and as employees. soft skills? Hard skills are technical abilities, factual knowledge, specialized talents, and education. These are the things people learn in school or in we are as employees. Psychologist better equipped to correctly interpret technical job training. They are also Daniel Goleman, author of Emotional (and avoid misinterpreting) your sur- aptitudes developed through work Intelligence, breaks down emotional roundings and your coworkers. It helps experience, study, or practice. Legal intelligence skills into five basic parts: you avoid the petty misunderstandings research skill is a good example of a self-awareness, self-management, based on misperceptions that plague hard skill. Soft skills are the skills that self-motivation, empathy, and social many workplaces. Self-awareness allows allow you to use your technical abilities skills. Assessing yourself in each of you to form appropriate and helpful and knowledge effectively in the work- these areas requires honesty and verbal and non-verbal responses to place. They include personal, social, forgiveness as the journey is both hum- people or situations. communication, and self-management bling and enlightening. Below I share Acquiring a level of self-awareness behaviors. Attempts to define soft skills some frank self-assessments that led about my own insecurities and biases are all over the web, and they can vary me to my breakthrough moments. has helped me to become a better widely. However, most would agree employee, a better manager, and a better that soft skills include self-awareness, Self-Awareness person. Embarrassingly, because of my conscientiousness, adaptability, critical Self-awareness is one of the most own personal history, I have discovered thinking, attitude, initiative, empathy, important and fundamental compo- that I often have a visceral negative self-control, organizational awareness, nents of emotional intelligence. Being reaction to large, tall, white men. This leadership, time management, political self-aware means knowing what you are negative reaction is even more intense if savvy, likability, and persuasive ability. feeling and why, it means knowing what these men are older and somewhat bois- To sum it all up, a person who has a you are good at and what you are not terous. This reaction can cause me to mastery of soft skills can be defined as good at, it means knowing what others form negative opinions, act less friendly, being emotionally intelligent. think about you, and it means really not engage in conversation, and ulti- The best definition of emotional knowing who you are. Self-awareness mately impede productive relationships. intelligence that I have found is from is essential because when you know As I began thinking more about these Jack G. Montgomery of Western yourself and your feelings, you are interactions, I developed the capacity Kentucky University. He says that to recognize when I am having these emotional intelligence is the ability to negative feelings and to examine them sense, understand, and effectively apply in real time. the power and acumen of emotions as I recall vividly the first time I a source of human energy, informa- AALL2go EXTRA Watch Jack paused during an interaction with a G. Montgomery’s “Soft Skills: tion, and influence. Professional Indicators of Success” tall, white man to examine my negative I love this definition because it webinar at bit.ly/AALL2go0115. feelings. I recall thinking to myself: acknowledges the very important, (1) this guy is being perfectly nice appropriate, and positive role that READ Dr. Marcia Reynolds’s blog post “10 Signs You Are Not Using and friendly to me, (2) these negative emotions can play. All of my life I have Your Emotional Intelligence” at feelings have no rational basis, (3) this been called emotional, hypersensitive, bit.ly/10SignsNoEQ and don’t miss must be my own unconscious bias at or tenderhearted in ways that implied her article “Grow Where You Are” work, and (4) I will not be ruled by weakness or negativity. I firmly believe on page 32. bias. I was able to take charge of my the more we are in touch with our LEARN MORE Read Huron Consulting’s actions and not let them be dictated emotions, the more we understand white paper, “Emotional Intelligence: by negative feelings that have no their origins, the more we sense these What Can Learned Lawyers basis in my conscious reality. I was emotions in others, and the more we Learn from the Less Learned?” at able to interact in more friendly and bit.ly/JF16HuronEQ. can appropriately express our emotions appropriate ways with a whole set of

Images © iStock.com./Leolintang/RawPixel Ltd./Angel1978. © iStock.com./Leolintang/RawPixel Images (even in the workplace), the better perfectly wonderful people with whom

485 JANUARY/FEBRUARY 2016 | AALL SPECTRUM 29 interactions had initially been difficult. Moreover, I was able to make my professional circle more expansive, rich and diverse. In this way, being self- aware has helped me to understand my own internal and external likes, dislikes, insecurities, hypersensitivities, and vulnerabilities. It has also helped me to recognize that almost everyone has these kinds of vulnerabilities to overcome and that they can be conquered. So how does one become more self-aware? One strategy is to use “I would disagree. Some managers feel means of self-management, I began think” statements in your own internal that emotions should not be expressed an internal conversation with myself, dialogue. This will allow you to notice at all in the workplace, and I strongly which sounded something like this: patterns or scripts that recur. These disagree with this assertion. “OK, I am getting really angry and patterns will help you to understand I know that I struggle with anger. upset, and these emotions are scaring your own emotions and how they can I struggle with how to feel it, how to me. I need to calm down! I need to be situationally triggered. It also allows process it, and how to express it. I communicate to her that the things you to ask yourself, “Is this really what I never really know when, how, and to she is saying are upsetting and are think?” So, for me, in my big, white guy whom I should let it out. I often don’t unproductive. I need to be calm but example, I began having the following even recognize the feeling of anger emotionally honest.” This internal con- internal conversation with myself: until very late in a situation when I say versation allowed me to acknowledge to myself, “Oh, wait? This is anger I’m my emotions, give myself instructions I think he has no respect for me. feeling. I get it!” on my behavior, and plan my response. I think he assumes I’m stupid. Having grown up in a household So, I said to her, “The things you’ve with three super-introverts, there was just said are quite upsetting to me.” My I think he wishes he didn’t have to never any arguing, yelling, or demon- voice shook as I spoke those words, interact with me. stration of how to best communicate and I paused to take a calming breath After having this same internal con- anger. So, I think I failed to learn how and to look her in the eyes. I could see versation several times, I had to realize and when to express it. The result is her begin to recognize that she had that I had no reality-based reason to that I struggle with anger as a man- made me angry. I then asked, “Why think any of those things and that ager. My default or go-to responses to did you say those things to me? What these white men were perfectly nice, anger in my personal life are to raise purpose did you want to achieve in kind, and professional. I had to admit my voice or to burst into tears, and this meeting? How were you hoping I to myself that I was the source of the neither of these is usually appropriate would respond? Why, exactly, are you problem and that I had to work on my in the workplace. However, working on here in my office?” own internal issues in order to func- self-awareness and self-management Posing these questions served many tion appropriately in the workplace has made me better equipped to rec- purposes. First, they were sincere and elsewhere. ognize anger in myself, to analyze its questions that I had. I was trying to origins, assess its validity, and fashion understand this interaction. Next, they Self-Management appropriate ways to acknowledge and caused her to think and to examine her Self-management is defined as the express it honestly. own motives and intentions. I believe awareness and management of how Years ago, I was having a difficult they caused her to realize that her one tends to encounter the world. It conversation with an employee of behavior was counterproductive and entails controlling how you internally mine in my office. This employee was not going to achieve any of her and externally respond to people or sit- began saying things to me about my desired goals. After a pause, she got up uations both verbally and nonverbally. behavior as a manager that seemed and left my office. Good self-management is not possible to me to be accusatory. Some of her When I think about this incident, without self-awareness, and it allows comments began sounding like veiled it teaches me that being emotionally you to be emotionally honest with threats. These comments certainly honest, by communicating that I was yourself, with your coworkers, and evinced a lack of respect, and they becoming upset, was powerful. Also, others. I feel that emotional honesty is felt intentionally hurtful. I wanted asking her about her motives, instead of extremely important in the workplace, to yell, “What the (EXPLETIVE) are inferring malice, was important to try to but I acknowledge that some people you talking about?” But instead, as a get to the heart of the matter. I believe

30 AALL SPECTRUM | WWW.AALLNET.ORG 486 her hasty exit was the result of her real- the eyes of others and to anticipate skills, have the something extra that izing that the situation had gone awry. the wants and needs of others in the makes them not only insightful and Self-management, informed by workplace. It allows you to be a more productive but popular and sought self-awareness, gave me the tools to compassionate and kinder human after as colleagues or teammates. take charge of this difficult situation. being. Moreover, it helps you to avoid Other psychologists, like Rachel misunderstanding others’ intentions. Brushfield in 2012, have identified Self-Motivation Professor Nancy E. Snow writes in several behavioral indicators that can be Jack Montgomery defines self- her American Philosophical Quarterly used to measure and observe emotional motivation as expending energy in a article titled “Empathy” that “empathic intelligence. These indicators include specific direction for a specific pur- identification is not always fully self-confidence, a self-deprecating sense pose. It requires you to realize what conscious or deliberate. Empathy is of humor, trustworthiness, openness tasks require extra energy and why that produced through a variety of psy- to change, a strong drive to achieve, is. You should also be able to identify cho-physical mechanisms, some of optimism, cross-cultural sensitivity, what the costs are of expending this which operate at fairly deep levels of effectiveness in leading change, persua- energy and on whom these costs will consciousness.” Empathy serves as siveness, empathy, remaining unflus- be imposed. Additionally, if you are not a sort of emotional compass for our tered when challenged, and awareness able to self-motivate, you should recog- actions. Snow posits that an empa- of one’s own emotional state. Indeed, nize why not, what are the costs to you thizer is guided to consciously look taken as a whole, these qualities that personally, what are the costs to others, for signs of other peoples’ emotional measure emotional intelligence have and what (if any) are the remedies? states, to reflect on the appropriateness been seen as predictors of success. In my own professional life, I proof his or her response, and to deliberate crastinate until the last minute on most on what kind of action is appropriate Conclusion projects. I realize shortly before proj- in the circumstances. Although technical knowledge, educa- ects are due that I must now self-moti- However, too much empathy can tion, and other achievement indicators vate and expend a ton of extra energy, be counterproductive because it can or hard skills may get you the job, work longer hours, forego happy hour, allow other people to manipulate you. often it is the soft skills that enable you and endure unnecessary stress to For example, empathy has become to advance, get promoted, and have a get the project done on time. I know counterproductive when a supervisor successful career. As one young lawyer what it requires, and I know why. The decides not to draft a disciplinary put it in a recent Huron Consulting cost to me is stress and aggravation. memo about an underperforming white paper, “I wasn’t the smartest stu- However, if I were not able to self-mo- employee because doing so would dent in law school … but I have always tivate, I would have to ask why not? I hurt that employee’s feelings. Empathy understood what makes people tick might have to ponder things like: (1) has also become a problem when and always known my own strengths I hate my job, (2) I don’t care about rather than tell a co-worker that she and weaknesses. I’m not afraid to ask this project, or (3) I really want to be is not carrying her weight, you decide questions and not afraid to look dumb. a personal shopper. The cost to me instead to do some of her work your- Too many brighter lawyers don’t know might be bad self-esteem, disappoint- self to avoid upsetting her. These are how to get on with people.” Knowing ing my peers, and poor evaluations. examples of too much empathy. what these skills and traits are allows The cost to others might be lost profits, one to focus on them and develop low team morale, or that co-workers Social Skills greater emotional intelligence. These no longer want to work with me. The The final component of emotional are the skills that could pave the way remedy could be changing jobs, seeing intelligence is social skills. Social skills for your ultimate success. a therapist, getting medication, exercis- are a catch-all category that combines ing more, or planning and scheduling effective communication, situationally work projects more in advance. appropriate assertiveness, listening ability, the ability to take and receive Empathy constructive criticism, the ability to Simply put, empathy is the ability to work successfully in a team situation, understand and share the feelings of and being emotionally honest and RONALD E. WHEELER others. People lacking empathy are expressing emotions appropriately. DIRECTOR OF THE FINEMAN AND PAPPAS LAW LIBRARIES Socially skilled individuals are able to WHEELER E. RONALD BY © 2016 often called self-centered, narcissistic, Associate Professor of or even sociopathic. Empathy helps combine all of the above-mentioned Law and Legal Research you to be a good team player because facets of emotional intelligence in Boston University School of Law ways that enable them to be excellent Boston, MA it allows you to better understand the [email protected] effects that your actions have on oth- employees. These are the employees ers. It helps you to see things through who, in addition to possessing hard

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Legal Studies Research Paper Series Research Paper 15-36 September 29, 2015

We All Do It: Unconscious Behavior, Bias, and Diversity

Ronald Wheeler Director of the Law Library & Information Resources & Associate Professor of Legal Research, Suffolk University Law School

This paper can be downloaded without charge from the Social Science Research Network: http://ssrn.com/abstract=2667132

489 Electronic copy available at: http://ssrn.com/abstract=2667132 LAW LIBRARY JOURNAL Vol. 107:2 [2015-15]

Diversity Dialogues . . .

We All Do It: Unconscious Behavior, Bias, and Diversity*

Ronald Wheeler**

Mr. Wheeler suggests that many of our behaviors, in the workplace and elsewhere, are motivated by unconscious triggers and emotions, including racial biases. These behaviors, however, can be prevented by making conscious choices that enhance diversity.

¶1 The academic literature on diversity in librarianship and in the legal professions tends to focus on institutional barriers to racial and ethnic diversity. Things like law school and library school admissions demographics, law firm employment demographics, and the demographics of legal academe have all been discussed.1 These types of discussions, while necessary, may also allow most law librarians to feel absolved of any responsibility for diversity. They reinforce the notion that the average law librarian has little control over changing the systemic forces that impede diversity. Yet there are steps that all law librarians, and indeed all people, can take to foster diversity in the workplace. My hope here is to demonstrate that we can all contribute to advancing diversity in our workplaces.

What We Know from Social Psychology

¶2 Much of what we do on a daily basis is unconscious. Psychologists and other social and behavioral scientists are in agreement about this point.2 In fact, “one of the least controversial propositions in all psychology is that people are not always

* © Ronald Wheeler, 2015. ** Director of the Law Library and Information Resources, Suffolk University Law School, Boston, Massachusetts. 1. See, e.g., Meera E. Deo, Looking Forward to Diversity in Legal Academia, 29 BERKELEY J. GEN- DER, L. & JUST. 352 (2014) (discussing the underrepresentation of women of color in legal academe); John Nussbaumer & Chris Johnson, The Door to Law School, 6 U. MASS. ROUNDTABLE SYMP. L.J. 1 (2011) (discussing the reasons minorities are shut out of law schools); Sarah E. Redfield, The Educa- tional Pipeline to Law School—Too Broken and Too Narrow to Provide Diversity, 8 PIERCE L. REV. 347 (2010) (discussing the low numbers of minorities in the legal professions); Karen Sloan, Legal Educa- tion’s Diversity Deficit: Despite Efforts, Modest Rise in Minority Enrollment, NAT’L L.J., May 12, 2014, at 1; see also Alyssa Thurston, Addressing the “Emerging Minority”: Racial and Ethnic Diversity in Law Librarianship in the Twenty-First Century, 104 LAW LIBR. J. 359, 2012 LAW LIBR. J. 27. 2. See, e.g., SIGMUND FREUD & JAMES STRACHEY, THE PSYCHOPATHOLOGY OF EVERYDAY LIFE (1965); Richard E. Nisbett & Timothy D. Wilson, Telling More Than We Can Know: Verbal Reports on Mental Processes, 84 PSYCHOL. REV. 231 (1977); Timothy D. Wilson & Nancy Brekke, Mental Contamination and Mental Correction: Unwanted Influences on Judgments and Evaluations, 116 PSYCHOL. BULL. 117 (1994).

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aware why they do the things they do.”3 That means not only that we are sometimes unaware of what we are doing, but also that we are sometimes unaware of why we are doing the things that we do. Social psychologists in particular have “investi- gated the ways in which the higher mental processes such as judgment and social behavior could be triggered and then operate in the absence of conscious intent and guidance.”4 ¶3 One category of unconscious behaviors are those that we consciously choose to do, but then the unconscious takes over so that we are able to do these tasks without conscious guidance. “Typing and driving a car (for the experienced typist and driver, respectively) are classic examples.”5 Many of us get in our cars to go to work and then before we know it, we are pulling into our work parking space with no real recollection of the drive to work. Here the unconscious was able to take over the task of driving the car to work without requiring any real conscious thought. The example I like to give from my personal life is running on a treadmill. I can climb onto the treadmill, turn on the Glee tunes on my iPhone, and then run for an hour while not ever consciously thinking about running, where I’m placing my feet, whether I’m close to falling off of the treadmill, and so on. The mechanics of running are operated by my unconscious mind. ¶4 Another category of unconscious behaviors is even more interesting. These are behaviors that we do consciously but are unaware of why we do them. Here there is a “preconscious analysis of stimuli prior to the products of the analysis being furnished to conscious awareness.”6 In other words, the unconscious analyzes information and produces the motivation for doing something, and the conscious mind does the task in question without any real awareness of where the motivation for action came from. There are lots of examples from experiments and from daily life in the psychology literature. Famous experiments involving seating and gender provide a good illustration of this phenomenon. These experiments have proven that when choosing seating in a waiting room, men will almost never sit next to or across from other men.7 Unconsciously, “males react negatively and are usually disturbed by frontal invasion [or encounter] by another male” in a waiting room situation.8 When entering a waiting room where only women are seated, men over- whelmingly prefer the frontal position and will sit across from a woman. Women, however, will almost always sit adjacent to another woman and not across from or in the frontal position.9 What is important to note is that both men and women are not aware or conscious of why they are making these seating choices. ¶5 Some unconscious triggers are emotional in nature. “Under some conditions an emotional process may remain entirely unconscious, even when the per-

3. Tom Pyszczynski, Jeff Greenberg & Sheldon Solomon, Proximal and Distal Defense: A New Perspective on Unconscious Motivation, 9 CURRENT DIRECTIONS PSYCHOL. SCI. 156, 156 (2000). 4. John A. Bargh & Ezequiel Morsella, The Unconscious Mind, 3 PERSP. PSYCHOL. SCI. 73, 74 (2008). 5. Id. 6. Id. 7. Ciani A. Camperio & M. Malaman, Where to Sit In a Waiting Room: Density, Age and Gender Effects on Proxemic Choices, 17 HUM. EVOLUTION 175, 175 (2002). 8. Id. 9. Id. at 182.

491 Vol. 107:2 [2015-15] UNCONSCIOUS BEHAVIOR, BIAS, AND DIVERSITY 327 son . . . [feeling the emotion can] . . . describe his or her feelings correctly.”10 In other words, sometimes we know what emotions we are feeling, but we are unaware of why we are feeling them. “Such an emotional process may nevertheless drive the person’s behavior and psychological reactions, even while remaining inaccessible to conscious awareness.”11 We call this emotional process unconscious or implicit emotion. These emotions, rather than occurring explicitly or with “conscious awareness of an emotion, feeling, or mood state,” occur implicitly or independent of conscious awareness, causing “changes in experience, thought, or action.”12

The Role of Bias

¶6 The fact that we are often unaware of the stimuli or motivations for the decisions that we make is further complicated by the impact of bias. “Half a century of . . . research has shown that human judgment is often biased.”13 “By some counts, 80% of Western democratic populations intend benign intergroup relations but display subtle biases.”14 It happens naturally, and it happens in all of us. “People seem to overrely on stereotypical intuitions and so-called heuristic thinking instead of more demanding, deliberative reasoning when making decisions.”15 Simply put, it is easier and more efficient for us to make on-the-spot, everyday decisions this way. ¶7 Biases come in many forms and can influence all of our interactions, including those occurring in the workplace. Much has been written about the impact of racial bias and unconscious racism.16 Therefore, for our purposes here, I will assume these are concepts with which most people are familiar. It is enough, then, to assert that unconscious racism exists, and it can be a powerful driver of behavior even in well-meaning individuals harboring no racial intent.17 The resulting effects on racial diversity can be inferred. ¶8 However, even non-race-based unconscious biases drive behavior in the workplace. Biases of all kinds create “awkward social interactions, embarrassing slips of the tongue, unchecked assumptions, stereotypic judgments, and spontaneous neglect.”18 “The mundane automaticity of bias . . . creates a subtly hostile environment for

10. Piotr Winkielman & Kent C. Berridge, Unconscious Emotion, 13 CURRENT DIRECTIONS PSY- CHOL. SCI. 120, 120 (2004). 11. Id. 12. Id. at 120–21. 13. Wim De Neys, Bias and Conflict: A Case for Logical Intuitions, 7 PERSP. PSYCHOL. SCI. 28, 28 (2012). 14. Susan T. Fiske, What We Know Now About Bias and Intergroup Conflict, the Problem of the Century, 11 CURRENT DIRECTIONS PSYCHOL. SCI. 123, 123 (2002). 15. De Neys, supra note 13, at 28. 16. See, e.g., Hart Blanton & James Jaccard, Unconscious Racism: A Concept in Pursuit of a Measure, 34 ANN. REV. SOC. 277 (2008); John F. Dovidio & Samuel L. Gaertner, Reducing Prejudice: Combating Intergroup Biases, 8 CURRENT DIRECTIONS PSYCHOL. SCI. 101 (1999); Lincoln Quillian, Does Unconscious Racism Exist?, 71 SOC. PSYCHOL. Q. 6 (2008). 17. There are, however, a few contemporary researchers who deny the existence of unconscious racial prejudice. See, e.g., Richard E. Redding, Bias on Prejudice? The Politics of Research on Racial Prejudice, 15 PSYCHOL. INQUIRY 289 (2004). 18. Fiske, supra note 14, at 124.

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out-group members.”19 Biases of all kinds can unconsciously drive behaviors such as “withholding positive emotions from out-groups . . . , withholding basic liking and respect . . . , and cool neglect.”20 Understandably, these behaviors can impede diversity by driving away out-group members or making them feel unwelcome and unappreciated.

Workplace Bias

¶9 I offer examples of my own unconscious biases and how they play out in the workplace to illuminate their effects on diversity. Unlike most librarians and contrary to the librarian stereotype, I am a super-extrovert. I enjoy interacting with people of all kinds, and I draw energy or recharge through human connections. Conversely, I am depleted or drained by most solitary tasks. I would much rather talk about a problem or issue than think about it alone. As a result, I am very naturally drawn to others who enjoy frequent spontaneous conversation, who seem charged by human interaction, and who exhibit extroverted behaviors.21 What I have noticed in my professional life is that I have a natural tendency to gravitate to the talkers or extroverts in the workplace far more often than I do to the introverts or quiet types. This has in the past created the perception that I am excluding people, that I like some people more than others, or that I value the extroverts over the introverts. This is how unconscious bias works. My intention was never to exclude anyone, and my actions were never driven by conscious choices. Even so, my actions may have caused some to feel devalued, disliked, or unwelcome. The effect could have been to drive away this facet of workplace diversity, which I greatly value. Before I began really thinking deeply about these issues, I was completely unaware of these behaviors of mine, what motivated them, and how they were impacting others in the workplace. ¶10 I can offer another example from my personal life. I have a nephew who, as the result of a motorcycle accident years ago, is paralyzed from the waist down. He is a fun-loving and social guy who navigates the world in a wheelchair. He is an easy person to like, and my perception is that people generally enjoy his company. Nev- ertheless, I have noticed that even at family gatherings, he will sometimes find himself alone and on the periphery of the assembled group. I believe this happens as a result of unconscious bias. Unconsciously and unknowingly, people gravitate toward easy social interactions. People’s unfamiliarity with interacting with someone in a wheelchair or their fear of the possibility of discussing my nephew’s paralysis or their discomfort around the mechanics of standing while interacting with someone who is seated all conspire to drive their avoidance of people like him. I’ve seen this dynamic happen again and again, and I know those involved are completely without malice and that many do, in fact, love my nephew. Neverthe-

19. Id. 20. Id. at 125. 21. I realize that extroversion and introversion are far more complex and nuanced concepts than I acknowledge here, and that I am relying here on the stereotypical definitions commonly understood by most people. See THE MYERS & BRIGGS FOUNDATION, http://www.myersbriggs.org/ (last visited May 29, 2015) (for a more thorough examination of the concepts of introversion and extroversion).

493 Vol. 107:2 [2015-15] UNCONSCIOUS BEHAVIOR, BIAS, AND DIVERSITY 329 less, the impact of these situations could cause him to feel disliked, excluded, and uncomfortable. An understandable consequence would be for him to avoid these social gatherings altogether. Now imagine, as I often do, how these dynamics might play out for my nephew in the workplace. It is not at all difficult to imagine how he might begin to feel excluded or even unwelcome. These dynamics are real, they occur in the workplace, and they impede workplace diversity. ¶11 One final anecdote I’ll offer involves the intersection of race, national origin, and language. Partly as a result of having taught and traveled in China, I have become more aware of the Chinese students studying at my law school.22 Most of my observations are of interactions outside the classroom in more social contexts like at receptions or other student events. Without fail, I have noticed the students from China ending up alone and looking uncomfortable. Admittedly there could be a host of explanations for this phenomenon including choices being made by the Chinese students themselves. Notwithstanding the Chinese students’ actions, it is the actions and omissions of the U.S. students that interest me. Invariably, I’ve seen U.S. students look at a Chinese student standing alone and then turn and walk the other way. I’ve even witnessed groups of U.S. students suddenly disperse when approached by a Chinese student. I am confident that these U.S. students harbor no ill will and that they intend no harm. I suspect that their actions are driven by unconscious biases, fears, and emotions. I suspect fear of otherness, inexperience with or fear of conversing with nonnative English speakers, or even mere lack of exposure to people born in other countries all unconsciously drive their avoidance behaviors. These types of actions, especially in the workplace context, can cause at best isolation and discomfort. Even worse, people who feel shunned in this way can begin to feel disliked, discriminated against, and unwelcome.

Self-Awareness

¶12 The first thing that we can all do is become more self-aware. It sounds too simplistic to be true, but it works. The contemporary social psychology literature confirms this assertion. “Implicit attitudes are difficult to access through introspection, but . . . with directed introspection their impact can be somewhat controlled.”23 In my own professional life, I began noticing that while closeness was developing between me and my more extroverted coworkers, a distance was developing between me and my more introverted coworkers. I was saddened by this reality for several reasons. First, I really liked and admired my less verbose colleagues. In fact, in many cases I liked them more than the extroverts with whom I had to compete for floor time during conversations. Additionally, I recognized that it was often the introverts who were more thoughtful and contemplative. They were often the ones who offered a much more nuanced and complete analysis of problems than my more knee-jerk and often grandiloquent opinions contained. I began to realize that I was,

22. I have made these observations at several different law schools at which I have been employed, and my intention is not to implicate any particular law school environment. Instead I mean to assert that these situations occur everywhere. 23. Quillan, supra note 16, at 7.

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in great part, responsible for this developing dynamic and that I could take steps to change it. ¶13 So, as I made my multiple daily rounds popping into people’s offices for chitchat, I began making a point of including the introverts in my perambulation. This took effort on my part not because the introverts were unpleasant in any way, but because conversation with them often took more effort on my part. I found that I often had to brainstorm a few topics to have at the ready in case the conversation lagged. I discovered that asking questions is a great technique for engaging those less inclined to conversational chatter. Also, I found I had to resist my natural tendency to fill silences with my own bombast. After a while, I discovered that conversation with the introverts became much easier. We both (I think?) began to enjoy each other more, and I felt that there grew a mutual appreciation for each other as colleagues. I definitely felt the distance or isolation from the introverts begin to melt away. Perhaps most important, I learned that I had to respect people’s boundaries when they were sometimes not interested in impromptu conversation. This was a really difficult lesson for me to learn. However, beginning the process of becoming more self-aware and changing some of my behaviors that were driven by unconscious choices were feasible. It merely required me to do some real self- reflection and to be more deliberate in my daily interactions that involved unconscious choices.