BostonBarJournalNovember/December 00 A Publication of the Boston Bar Association AA Low-DoseLow-Dose Prescription:Prescription: CriminalCriminal ProsecutionProsecution ofof OO -Label-Label DrugDrug PromotionPromotion Single-Member Limited Liability Company Denied Charitable Exemption of Property Criminal Practice in Suffolk Superior Court Search and Seizure of Computers: Commonwealth v. McDermott No Judicial Remedy Left Behind: Fulfi lling the Commonwealth’s Duty to Educate Its Children After McDuffy and Hancock Making and Amending the Massachusetts Rules of Civil and Appellate Procedure Joint Defense Agreements Green Point Legal Services Legal Outsourcing R edef ined American attorneys working for American attorneys.TM Outsourcing conjures up great promise. ?Research Cost savings. Increased efficiency. Ability to ?Brief writing focus on core strengths and reach more ?Pleading and motion preparation clients. 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Call ?Training Green Point today and realize the promise ?”Virtual" in-house counsel of outsourcing for your firm. services To find out more, or to qualify for our free trial offer, contact Ken Wollins, [email protected] 212-913-0500 x552 (office), 781-248-0195 (mobile) Boston Bar Journal Volume 1, Number November/December 2007 Contents President’s Page 2 Offi cers of the Boston Bar Association President, Anthony M. Doniger BBJ Editorial Policy 3 President-Elect, Kathy B. Weinman Vice President, John J. Regan Departments Treasurer, John H. Chu Secretary, Deborah S. Birnbach Heads Up 4 Single-Member Limited Liability Company Denied Charitable Members of the Council Exemption of Property Mark M. Christopher Damon P. Hart Grace H. Lee R.J. Cinquegrana Brent L. Henry James D. Masterman By Robert E. Cowden III Lisa M. Cukier Christine Hughes Samuel B. Moskowitz Paul T. Dacier Julia Huston Rebecca B. Ransom Voice of the Judiciary 6 Laurie Flynn Sandra L. Jesse Vivian Tseng Criminal Practice in Suffolk Lawrence M. Friedman Kimberly Y. Jones Charles E. Walker, Jr. Randolph M. Gioia Robert H. Kelley Mark J. Warner Superior Court Lisa C. Goodheart Nina J. Kimball By Margaret R. Hinkle Past Presidents Case Focus 8 Edward J. Barshak Joseph L. Kociubes John A. Perkins Search and Seizure of Computers: Joseph W. Bartlett Renée M. Landers Rudolph F. Pierce Commonwealth v. McDermott John G. Brooks Edward P. Leibensperger Joel M. Reck R.J. Cinquegrana William F. Looney, Jr. Richard W. Renehan By Jeanne Kempthorne John J. Curtin, Jr. Joan A. Lukey Lauren Stiller Rikleen Gene D. Dahmen Hon. James P. Lynch, Jr. Mary K. Ryan Legal Analysis 9 John P. Driscoll, Jr. Hon. Sandra L. Lynch Richard A. Soden No Judicial Remedy Left Behind: Thomas E. Dwyer, Jr. James J. Marcellino Raymond H. Young Hugh R. Jones, Jr. Hon. Margaret H. Marshall Fulfi lling the Commonwealth’s Duty Michael B. Keating Edward I. Masterman to Educate Its Children After McDuffy and Hancock Boston Bar Journal Board of Editors By Curtis B. Dooling and Bonnie Sashin, Editor Matthew C. Baltay Aaron J. K. Ostrow, Associate Editor Manisha H. Bhatt Maura M. Pelham Catherine F. Meeks, Cover Design Hon. Thomas Billings Deborah S. Birnbach The Profession 13 Lisa S. Burton The Boston Bar Journal is published fi ve times a year by Making and Amending the Andrew L. Cohen the Boston Bar Association at 16 Beacon Street, Boston, Michael A. Collora Massachusetts Rules of Civil and Massachusetts 02108. Tel. (617) 742-0615. Articles Hon. William I. Cowin from the members of the Boston Bar Association are Appellate Procedure Hon. Judith Fabricant encouraged. Mail all correspondence to the Boston Bar Donald R. Frederico (Chair) By Christine P. Burak and Journal, 16 Beacon Street, Boston, MA 02108. Visit the Hon. Mark V. Green Boston Bar Association at www.bostonbar.org. Articles Marc G. Perlin Joseph Halpern appearing in the Boston Bar Journal represent the Martin R. Healy views of their authors and do not necessarily carry the Practice Tips 15 J. Allen Holland endorsement of the Association. Kimberly Y. Jones Joint Defense Agreements ©2007 Boston Bar Association. Elizabeth Eunjoo Kim All rights reserved. By Peter M. Casey Andrea Studley Knowles Paul G. Lannon, Jr. Legal Analysis 17 Advertising inquiries: Hon. Peter M. Lauriat Call (617) 778-1958. Michael K. Loucks A Low-Dose Prescription: Criminal John Loughnane Prosecution of Off-Label Drug Martha Ann Mazzone David A. McKay Promotion Mark F. Murphy By Michele L. Adelman and Timothy M. Murphy Regina S. Rockefeller Catherine N. Karuga Hon. Janet L. Sanders Vivian Tseng BBA Update 21 BBF News 26 Pro Bono Update 28 Boston Bar Journal • November/December 2007 1 President’s Page By Anthony Doniger Déjà Vu All Over Again hen you step into the same or that it is fully equipped to provide efficient access to justice shoes worn by eighty-five to rich and poor alike? Ask yourself why it isn’t. At least in part, W previous BBA Presidents, it is because of a failed recognition that there are few—if any— looking back at what prior incumbents votes to be gained by generously supporting the judiciary. thought and wrote about proves educa- tional. To that end, I recently dredged up The judiciary is undoubtedly the least understood branch of the President’s Pages written by my government, and the one with virtually no constituency. It is partner Ed Barshak over thirty years ago, an easy target of vituperative and ill-informed reaction to what from 1974-76 (presidents served two-year appear to be shocking orders, soft sentences, and unwar- terms then). The exercise was a useful ranted judicial activism. Witness the reaction to Judge one, insofar as it is a common human Garrity’s busing decrees, the treatment of now Supreme tendency to feel that the issues and problems we grapple with Judicial Court Justice Margot Botsford at her recent confirma- are new or different (otherwise, surely, they would have been tion hearing by certain Governors’ counselors, and the rap on solved previously); it is humbling to be reminded that in fact, the SJC’s recognition of same-sex marriage. Legislators and they are not. Mindful that history does indeed repeat itself, we governors perceive that they will neither gain votes by should not be surprised that we are today dealing with old increasing the judicial budget, nor lose popularity by vetoing problems, to which the need to respond remains vital. judicial appropriations. This threatens the ability of our courts to function efficiently and to continue instituting and advanc- In 1974, United States District Court Judge W. Arthur ing the reforms undertaken by the SJC and the office of the Garrity issued his now-famous busing decrees in the Boston School Desegregation case. These directly affected many Chief Justice for Administration and Management, especially Boston residents and in many quarters were met with violence in the wake of the 2003 Monan Committee Report. A gover- and outrage. The Boston Bar Association responded in a nor—a long-time practicing lawyer all too familiar with the number of ways, two most notable: first, it awarded Judge need to improve the efficiency of and access to the justice Garrity its Public Service Award. Said President Barshak in system—in his first budget, recently chose to single out the his October 1974 President’s Page: “the public reaction to his appropriation to the judiciary for his only substantial veto. judicial decrees sucked the Judge into a political maelstrom. This says a great deal about the calculation of whether there He was vilified as if he were a ward healer who had sold out to would be a substantial risk of a constituency revolt in the face some alien enemy. His judicial act was distorted as a raw of such cuts. While it is heartening that the judicial budget political thrust. Public understanding of the rule of law and of wound was healed by the Legislature this year, it is troubling the rule of the courts was damaged and endangered…Besides to think that the guts of the ongoing court reform efforts recognizing the Judge for his many years of judicial effort, the begun a few years ago would have been torn out without this award was a symbolic reminder that his decrees in the Boston turnabout. school desegregation case embodied the rule of law.” The BBA also issued a widely disseminated pamphlet about the I am sorry to be tooting the same horn my partner blew desegregation orders, to explain the complexities of enforcing thirty years ago, but we’re reading from the same sheet of constitutional rights and to enhance the public’s understand- music. We lawyers must do more to remind the public that the ing of the orders and the role of the Court. court system is a crucial part of the fabric of our society, central to the smooth and efficient functioning of our economy In another President’s Page (November, 1974) President and vital to the protection of rights and liberties. There are Barshak took on the condition of the courts. Among other effective strike forces of attorneys ready to respond publicly to observations, he wrote: “The delivery of justice to litigants is unfounded criticism of individual judges by the press or the sometimes a strange thing.