By Robert L. Ullmann and Jonathan L. Kotlier
Every law firm—no matter its size, reputation, or practice area—will someday face the specter of a legal malpractice claim. No firm is immune. However, there are steps attorneys and their firms can take to minimize the risk of a claim and to maximize their ability to defend themselves. The authors have handled several legal malpractice cases and in all these cases there have been aggravating factors that have made the case much more difficult to defend and increased the settlement value of the case. Despite lawyer jokes, we are actually human and we do make mistakes. However, what we do not want to do is to exacerbate those mistakes through ancillary errors that put the lawyer or firm in a bad light. By avoiding such errors, the law firm will decrease its exposure and will be in a position to contest the claims, rather than having to capitulate to avoid negative publicity. This article will identify some of those ancillary errors and suggest ways to avoid them.
The following fictionalized scenario illustrates several possible errors: A senior associate in a multi-national law firm is approached by a former colleague and now in-house attorney with an opportunity to defend his company in a litigation matter. The case involves a former employee who sued the company for millions of dollars alleging wrongful termination. The senior associate has never handled this type of matter before and, in fact, has never before tried a case. However, he figures that the case is sufficiently similar to other cases on which he has helped partners that he believes he could represent the client effectively and, really, what are the chances the case will actually go to trial? In his pitch to in-house counsel, the senior associate represents he is an experienced litigator (but does not mention that he has never before tried a case) and promises that the case will be overseen by a very experienced senior partner. He crafts a proposed litigation budget for the client and, in his enthusiasm to win the client, produces a budget that is unrealistically low, far below those of the other firms in the mix. The client is pleased with the pitch and the budget and retains the attorney and his firm. The senior associate is pleased with himself, because he is up for partner within the year.
Their pleasure is short-lived. The in-house counsel sees himself as an active participant in the litigation team. He raises concerns about strategy decisions and legal arguments. The senior associate ignores the client’s request to advance certain defenses and proceeds with the litigation without addressing the client’s concerns. In doing so, just in the discovery phase alone, the senior associate and his cadre of more junior associates rack up legal fees more than ten times what he had estimated the fees would be through trial. This helps his bid to become partner, but does not endear him to the client.
The case eventually proceeds to trial and the senior associate, now a new partner, takes on the role of lead trial counsel even though he has never taken a case to trial. He does not bring in a senior partner to help try the case. At trial, the attorney continues to ignore the questions and suggestions of the client. In so doing, he fails to make a legal argument that has merit and could have significantly impacted the result. The jury verdict is a disaster for the client, with damages exponentially greater than the attorney or the client ever expected. After all appeals are exhausted, the client brings a malpractice action against the firm.
The demand letter’s main claim is that the senior associate failed to make a legal argument that a reasonable attorney would have made in the case. This is a standard malpractice claim based on the negligence standard articulated by the courts. To prevail, the client must show that the senior associate failed to “exercise the degree of care and skill of the average qualified petitioner.” Fishman v. Brooks, 396 Mass. 643, 646 (1986). On this standard, the firm has some quite plausible defenses to the claims.
Moreover, the client will face the hurdle of providing adequate expert testimony to prove the senior associate’s negligence. In Pongonis v. Saab, 396 Mass. 1005 (1985), the Supreme Judicial Court explained that expert testimony is required to demonstrate an attorney’s negligence unless “the claimed legal malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence.” This is not an easy hurdle to clear. The Appeals Court, in Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987), required a client to demonstrate through expert testimony that the attorney’s failure to learn about and comply with a procedural statute, which was both crucial to the client’s case and widely known within that field of law, was negligent. If the client in this fact pattern wants to challenge the senior associate’s trial strategy and legal arguments, it will need to prepare itself for a battle of the experts.
An additional hurdle for the client in this fact pattern is the element of causation. To prove causation on a litigation malpractice claim, a client must present a “trial within a trial” and show that he would have “probably” prevailed in the underlying case but for the attorney’s negligence. Fishman, 396 Mass. at 647. For the most part, this hurdle also requires expert testimony that establishes a link between the attorney’s negligence and the bad outcome for the client. See Frullo v. Landenberger, 61 Mass. App. Ct. 814, 818 (2004).
The hurdles for the plaintiff are high, but what makes the case highly risky to defend are the attendant embarrassing and aggravating factors—the legal fees so far exceeding the proposal, the senior associate not being forthcoming about his lack of trial experience, the failure to address the client’s concerns that actually had merit, and the failure to bring in a senior attorney who had significant trial experience. The risk that such embarrassing allegations would become public make it impossible for the firm to defend. It has to settle.
As you read this sample fact pattern, you probably think to yourself that this example is exaggerated and that there is no way I or my firm would make similar mistakes. Think again—this example is a disguised, real life situation involving a prestigious law firm (not based in Massachusetts), and as lawyers we all face at least some of the pressures that led the lawyer and firm astray. What follows is a discussion of the errors cited above and how firms and individual attorneys can take steps to avoid these pitfalls.
1. Always be objective and straightforward with a client
Nothing exacerbates the damage in a legal malpractice case more than the plaintiff being able to allege that his lawyer or law firm was not straight with him. What lawyer or firm would want to litigate a legal malpractice case in which their honesty and credibility are questioned? In addition to reputational damage, the lawyer and law firm are now at risk of greater liability. The Appeals Court, in Frullo v. Landenberger, 61 Mass. App. Ct. at 822, has signaled that a client can bring Chapter 93A claims in cases of alleged deceit or dishonesty. “There is no doubt that the provisions of G.L. c. 93A apply to attorneys.” Id. Not only does this create exposure to multiple damages and attorney’s fees, but it also gives the opportunity for the client to avoid the hurdle of expert testimony on negligence. Claims grounded in allegations of dishonesty, fraud, deceit, and misrepresentation are not subject to the same expert testimony requirement applied to professional negligence claims. See Brown v. Gerstein, 17 Mass. App. Ct. 558, 566-67 (1984). Resist the temptation to puff or exaggerate. The resulting leverage to settle (especially with the possibility of multiple damages) will be difficult to withstand.
2. Puffing during the pitch
Being straightforward applies as much to the pitch as it does to the post-engagement work. Competition for work can be very intense and you might be tempted to exaggerate your qualifications and minimize your estimate of projected cost. Again, resist the temptation. Any statement the lawyer or law firm makes regarding its experience and expertise is bound to become part of a disgruntled client’s complaint in a legal malpractice action. One recent and sensational example is the complaint filed by infamous UBS whistleblower Bradley Birkenfeld against Schertler & Onorato, LLP, the firm that represented him in his whistleblower suit. Birkenfeld now alleges that the firm and its attorneys “falsely represented themselves to [Birkenfeld] as experienced in and knowledgeable about federal whistleblowing laws and procedures” when, in reality, they had “very limited experience in the area.” Complaint at ¶ 14, Birkenfeld v. Schertler & Onorato, LLP, Civil Action No. 0008397-12 (D.C. Super. Ct. Oct. 31, 2012). There are few better ways to undermine the defense of a legal malpractice claim than to have misrepresented to the client your familiarity with a particular type of transaction, your expertise in a particular area, or your trial experience. It will magnify any error the attorney may have made. Again, you and your firm will pay a premium for not wanting this case to be litigated in the public eye.
3. Maintain clear lines of communication with clients
Almost every malpractice claim arises out of a client feeling personally wronged by the attorney. This is why client communication is so important. Whenever an attorney receives client complaints about a lawyer’s strategic decision, the quality of work, or an unfortunate event, the attorney should respond in a way that both alleviates the concern and affirms to the client that you are on the same team. Not only will the attorney be fulfilling his ethical obligations under Rule of Professional Conduct 1.4, but he will also build a stronger rapport with the client and earn the client’s loyalty. A client pleased with a law firm’s responsiveness and care will be more understanding in the event that the matter sours.
4. Listen to, and get “buy-in,” from the client
Clients can have some pretty harebrained ideas, but every now and then… Whether good or bad, all client ideas and suggestions need to be addressed. If you do not think it is a great idea and you discuss the idea with the client, you can often explain the weaknesses and get the client to agree with your view. Even if you and the client continue to disagree, you are most likely talking about a judgment call, which is a very difficult basis for a malpractice claim. If you ignore the client, you will only alienate the client, and if it turns out that you were wrong, you are not going to want a public record of the client being a better lawyer than you.
5. Establish clear email protocols for your attorneys
Although the law in this area is not absolutely clear, there is a reasonable chance that if a client sues you for malpractice he will be able to get his hands on the internal emails relevant to his case or transaction. In almost every malpractice case, the most damaging document is not the contract, the court filing in the dispute, or an internal memo, but rather the informal emails among law firm attorneys. These are the communications where the smoking gun typically lies—either in the form of an admission of a mistake from one attorney to another or an error made in a hastily drafted intra-firm email. In Vlachos v. Weil, No. 11028/2009, 2011 WL 1348397, at *2 (N.Y. Sup. Ct. Apr. 8, 2011), a New York trial court considered the admissibility of emails in which the attorney admitted that he was at fault in failing to ensure that his clients received the money they were owed as part of a stock deal. Whether those emails would come into evidence as a party admission or not, the malpractice suit caused the lawyer’s self-critique to become a matter of public record.
Finally, this probably goes without saying, but don’t say anything negative or unflattering about your client in an email–it will not reflect well on you and it will not be something you will want to see the light of day. In one federal court case, a former client of Day Pitney brought forth emails in which his lawyers demeaned him, demonstrating the lawyers’ “crude behavior.” Iannazzo v. Day Pitney LLP, No. 04 Civ. 7413(DC), 2007 WL 2020052, at *10 (S.D.N.Y. July 10, 2007). Although the client was ultimately unsuccessful in his malpractice suit, Day Pitney could not call the resolution a complete success if its attorneys were on record as antagonistic to and disrespectful of the firm’s clients.
6. Construct an oversight program for all cases.
Many malpractice claims arise from an attorney who is in over his or her head, either because the matter is outside the attorney’s area of expertise or is too complicated for less experienced attorneys. Certainly where an attorney who is out of his depth takes on a matter that does not end well, you can be sure the client will examine the situation closely. As a remedy, every law firm should consider instituting a formal program in which a senior attorney is assigned to each matter, and meets monthly with the day-to-day manager of the case, so the junior attorney can bounce ideas, issues, or concerns off of the senior attorney. Without a formal procedure in place, the junior lawyer will often feel uncomfortable raising concerns until it is too late.
* * * *
With the number of malpractice claims rising every year, most law firms will face the specter of malpractice suits. Under the legal standards applicable to malpractice claims, errors in judgment will often be quite defensible and will not be an embarrassment to the firm. The trick is to avoid exacerbating the situation by making mistakes that put the lawyer or the firm in a bad light and that make a confidential settlement the only real option.
A Word About Conflicts of Interest
Much has been written about the trouble law firms can find themselves in when they take on matters that involve a conflict of interest. Most lawyers understand the basic ethical prohibitions on being adverse to another client of the firm, having clearly divided loyalties, or disclosing confidential client information. However, there are many situations in which a client’s waiver or even simply disclosure to the client can prevent serious problems down the road. Where an undisclosed conflict exists, the client can paint almost any attorney error as being caused in part by the law firm’s conflicted loyalties. This is not where you want to be.
Robert L. Ullmann is a partner in the Litigation Department and Chair of the Government Investigations and White Collar Crime practice group at Nutter McClennen & Fish LLP.
Jonathan L. Kotlier is also a litigation partner at Nutter, where he too is a member of the Government Investigation and White Collar Crime practice group. He is a former federal prosecutor.
The authors wish to acknowledge the invaluable contribution to this article of Christopher Lindstrom and Timothy Reppucci of Nutter.
by Matthew L. Mitchell
Scenario: An employer’s Information Technology department performs a routine software update on an employee’s office computer. During the course of the maintenance, an Information Technology professional discovers what appears to be child pornography saved on the hard drive.
This nightmare scenario raises several very difficult questions for the employer:
- Should the matter be resolved through internal discipline procedures, or should (or must) the employer involve local police or other law enforcement authorities?
- What should the employer do with the offending images or materials?
- Should the employer conduct a further investigation?
The answers to these questions depend on a rapidly evolving body of case law and statutes, including statutory mandates that impose specific, affirmative duties on employers who discover child pornography in the workplace. Employers must be aware of their duties and responsibilities, and be prepared to act when violations occur. Failure to adhere to these mandates may subject employers to significant penalties and criminal sanctions.
Possession of Child Pornography Is a Crime
Under both Massachusettsand federal law, it is a crime to “knowingly possess” child pornography. See M.G.L. ch. 272, §29C ; 18 U.S.C. § 2552. As such, if child pornography is discovered in the workplace or on company computer networks, the employer is in violation of these laws. Under the federal law that criminalizes possession of child pornography, 18 U.S.C. § 2252, an employer that discovers child pornography in the workplace may limit its liability if it “promptly and in good faith” (a) destroys the offending materials; or (b) informs a law enforcement agency that it has discovered illegal child pornography and affords that agency the opportunity to access the materials. See 18 U.S.C. § 2252(c). This “safe harbor” may, however, be at odds with other statutory and regulatory mandates. For example, as discussed below, there are federal and state statutes, potentially applicable to some employers, which expressly prohibit the destruction of evidence of child pornography.
In addition, most jurisdictions, including Massachusetts, recognize that willful or deliberate ignorance is tantamount to actual knowledge of the wrongdoing. See, e.g., United States v. Guerrero, 114 F.3d 332, 343 n. 12 (1st Cir.1997) (“Where ‘the facts suggest a conscious course of deliberate ignorance,’ a jury is warranted in finding the defendants’ deliberate ignorance of criminal events, which is tantamount to knowledge.”) (internal citations omitted). Accordingly, if an employer has reason to suspect that an employee is storing child pornography at the worksite or within employer’s computer systems, the employer may not avoid liability by simply ignoring the situation. Rather, depending on the circumstances, the employer may have a duty to investigate the employee’s activities, including searching its computer files or monitoring employee’s computer usage, and taking prompt remedial action if offending material is discovered. This duty may trump any privacy rights of the employee. See, e.g., Doe v. XYZ Corporation, 887 A. 2d 1156, 1158 (N. J. Super. 2005) (“[An] employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer.”).
Under both Massachusettsand federal law, penalties for knowing possession of child pornography include substantial fines and prison sentences. See M.G.L. ch. 272, § 29C (imposing state prison terms of up to 5 years, and fines up to $30,000 for knowing possession of child pornography); 18 U.S.C. § 2252 (imposing up to 20 year prison sentences for knowing possession of child pornography).
A Duty to Report?
There are several federal and Massachusettsstatutes that may impose affirmative duties on Massachusettsemployers to report child pornography to law enforcement authorities. For example, federal statute 18 U.S.C. § 2258A requires “whoever, while engaged in providing an electronic communication service or a remote computer services. . ., obtains actual knowledge of any facts or circumstances [concerning child pornography] . . . [must] provide to the CyberTipline of the National Center for Missing and Exploited Children . . . a report of such facts and circumstances. . .” 18 U.S.C. § 2258A. If the “facts and circumstances” of child pornography include physical materials, such as images, data, or digital files, those materials must be preserved in a “secure location,” and made available to the appropriate authorities upon request. 18 U.S.C. § 2258A(h). For purposes of the statute, the term “electronic communication service” is defined broadly as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510. On its face, the statute appears to apply its mandatory reporting requirement to any employer that provides e-mail access to its employees. Although some commentators suggest that the scope of 18. U.S.C. § 2258A is limited to Internet Service Providers (such as Comcast or Verizon), this limitation has not been addressed in regulations or case precedent.
Also, under Massachusetts General Law Chapter 119, §51A, certain “mandated reporters,” such as school or hospital employees, are required to report suspected incidents of child abuse and neglect to law enforcement authorities.
In addition to these statutory mandates, employers have been found liable for common law negligence for failing to report child pornography found on a work computer. In the New Jerseycase of Doe v. XYC Corporation, a mother, on behalf of her daughter, brought a negligence action against her husband’s employer, seeking to hold employer liable for the husband’s use of workplace computer to access pornography and send nude photographs of the daughter to a child pornography site. Although the employer was on notice that the husband was using work computers to access pornographic websites, the employer did not investigate the husband’s behavior or report his conduct to authorities. In reversing summary judgment in the employer’s favor, the court held that the employer “had a [common law] duty to report Employee’s activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy.” See XYC Corporation, 887 A. 2d at 1168.
In sum, employers must be prepared to promptly report incidents of suspected child pornography to law enforcement authorities.
The Need to be Proactive
Although it is critically important for employers to understand the appropriate actions to take after discovering child pornography, it is equally important to adopt policies and procedures that limit the likelihood of such illegal material entering the work place. A fundamental tool in this regard is an effective media policy that addresses employee use of workplace computer equipment and systems. Such a policy should:
- Restrict employee computer use to authorized work-related activities and limited personal use that does not interfere with work activities or burden the employer’s computer system;
- Notify employees that work computers, e-mail accounts, and internet activity may be monitored by the employer, and that employees have no expectation of privacy in information stored on such equipment or transmitted through such services;
- Notify employees that the employer reserves the right to monitor employee usage of company computer equipment and systems; and
- Inform the employee that illegal use of the company’s computer systems may be reported to law enforcement authorities.
Employers should also be committed to enforcing the policy. When an employer suspects or becomes aware of an employee’s misuse of company computer systems, the employer should engage in a prompt and thorough investigation. If the investigation reveals inappropriate employee conduct, the employer should take remedial action. As discussed above, such action may involve subjecting the employee to internal disciplinary procedures or, if circumstances warrant, reporting the employee’s conduct to the appropriate authorities.
Although the statutory and case precedent on this issue continues to evolve, a clear principle has emerged: employers may not ignore employee conduct that may involve child abuse or child pornography.
Matthew L. Mitchell is a partner at Holland & Knight LLP. Mr. Mitchell represents businesses and educational institutions on a broad range of employment, student, and compliance related matters.
Sure to stir a wide range of emotions, restraining orders have become ubiquitous in our society. Practitioners in the criminal law and domestic relations law arenas, as well as others, encounter restraining orders on a frequent basis. For this reason, lawyers should become familiar with the particulars of Chapter 209A law, and resources available to help navigate what can appear to be a confusing process. One such resource is the Guidelines for Judicial Practice: Abuse Prevention Proceedings. Promulgated by the Office of the Trial Court in 1996, and later revised in 1997, 2000, and most recently in 2011, the Guidelines are an essential tool for anyone handling a 209A matter.
Enacted in 1978, the Abuse Prevention Act, M.G.L. Chapter 209A provides a statutory mechanism for those suffering from domestic abuse to seek legal recourse to stop and prevent abuse from occurring in the future. Court orders available under c. 209A include, instructing the defendant to stop abusing or threatening to abuse the plaintiff, forcing the defendant to stop contacting the plaintiff, requiring the defendant to leave and stay away from the plaintiff’s household and workplace, granting temporary custody of a minor child/ren to the plaintiff, and directing the defendant to pay temporary support to the plaintiff or the minor child/ren of the relationship. While 209A proceedings are civil in nature, a violation of a 209A order is a criminal offense.
To be eligible for a 209A order, a victim must show an intimate or familial relationship with the defendant, including marriage, substantive dating, cohabitation, relation by blood or marriage, or having a child together. Victims who never knew their perpetrators, or knew them only marginally, such as many survivors of sexual assault, rape, and stalking, are ineligible to file for a 209A order. To provide these and other victims with legal recourse, in 2010, the legislature enacted an Act Relative to Harassment Prevention Orders, M.G.L. 258E. To be eligible for 258E relief, the plaintiff must prove the defendant committed at least three acts of willful and malicious conduct against the plaintiff, with the intent to cause fear, intimidation, abuse or damage to property, and that said conduct did in fact cause fear, intimidation, abuse or damage to property; or the defendant committed any act by force, threat or duress, that caused the plaintiff to engage in sexual relations; or the defendant committed a violation of a list of enumerated crimes. The Supreme Judicial Courtrecently held that appeals from 258E decisions are appealed to the Massachusetts Appeals Court (as are 209A appeals). O’Brien v. Borowski, 461Mass. 415 (2012).
The Guidelines for Judicial Practice: Abuse Prevention Proceedings were issued to help judges and court personnel sensitively and objectively address the broad range of complex issues that arise under c. 209A. Intended to promote the safety of applicants, while ensuring the due process rights of defendants, the Guidelines provide uniformity and a coordinated response by the trial courts to domestic violence. It is important to note that the Guidelines apply only to 209A proceedings, and are not an amendment to the existing statute.
The Guidelines provide a detailed and expansive analysis of the legal requirements under 209A, recommended interpretations of the law, and best practices for 209A policy and procedure, particularly in areas where the law is vague or silent. See Guidelines for Judicial Practice: Abuse Prevention Proceedings 1:00 commentary (September 2011). Given the sensitive nature of the issues involved, and the high level of tension that is often present, lawyers can benefit from thoughtful and practical guidance on how to represent clients in these cases.
The fourth edition of the Guidelines was compiled and implemented by the Trial Court, with significant assistance from the Boston Municipal Court, District Court, Probate and Family Court, and Superior Court Departments. The revisions reflect several major substantive and procedural changes in 209A practice. The revised Guidelines can be found on the Trial Court website, http://www.mass.gov/courts/formsandguidelines/domestic/index.html. Links to other documents, such as Highlights of September 2011 Revisions to Guidelines, and documents referenced in the Guidelines, including the newly revised c. 209A forms, which went into effect in January, 2012, can also be found on the Trial Court website.
The 2011 revisions to the Guidelines can be divided into three categories: changes based on appellate case law decided between December, 2000, when the Guidelines were previously revised, and September, 2011, when they were most recently revised; changes based on statutory amendments and new statutory law; and changes based on the Trial Court’s desire to clarify and improve court policies and procedures covering 209A proceedings. Brief descriptions of the most significant revisions to the Guidelines can be found in the Highlights on the Trial Court website. Certain revisions, however, deserve special mention.
To begin with, the Guidelines have been revised to reflect that a court does not need personal jurisdiction over a defendant to issue a 209A order, except that it may not impose any affirmative obligations on a non-resident defendant, like ordering to pay child support or to surrender firearms. Additionally, in light of the rise of social media over the last decade, the Guidelines provide that a 209A order prohibiting contact can be violated through e-mail, texts, Facebook, and Twitter. The Guidelines now arm practitioners with helpful analysis based on key appellate law governing what a plaintiff must show in order to support a finding of risk of abuse to warrant an extension of a 209A order. These factors include, ongoing custody or other litigation that engenders hostility, the parties’ demeanor in court, and the likelihood that the parties will encounter each other in their usual activities. In addition, the revised Guidelines reflect recent case law supporting the holding that the fact that abuse has not occurred during the pendency of a 209A order does not in itself constitute sufficient grounds for allowing an order to be vacated. In situations where the parties reverse roles in two different courts, and obtain 209A orders against one another, the revised Guidelines dictate that they be treated as mutual orders, which require specific written findings of fact, and should be issued only sparingly.
Further revisions that warrant special attention are those that are based on the Trial Court’s desire to clarify and improve court policies and procedures. For example, the revised Guidelines now specify that a plaintiff should be informed that a defendant will have access to the affidavit supporting the 209A request. The revised Guidelines also clarify that discovery orders are within the court’s discretion, but should be issued only upon a showing that such discovery is necessary to provide specific essential information, removing the presumption that discovery is not allowed in 209A cases except in extraordinary circumstances. In addition, the Guidelines reinforce that 209A cases are public hearings and as such should not be conducted at side bar. The revised Guidelines specify that a 209A order must be immediately transmitted by the court to police as promptly as possible, either by faxing it to the appropriate department or arranging for the police to retrieve the order from the courthouse. Orders that have expired or have been terminated by a judge are now referred to as “terminated” instead of “vacated”. Finally, the Guidelines recommend that the clerk’s office request photo identification from a plaintiff wishing to terminate an order.
While the Guidelines lack the force of law of a legislative statute, and are not legally binding on the courts, they do provide persuasive judicial interpretations of statutes, case law and court procedure. The Courts regularly apply the Guidelines to support their interpretation of domestic violence law. For example, in support of its assertion of the minimum standards of fairness that must be observed in abuse prevention proceedings, and addressing specifically that a judge is prohibited from cutting short an abuse prevention hearing because of her belief that it should move to another forum, the Appeals Court recently cited to the Guidelines, “If the court in which a person initially seeks protection under c. 209A has jurisdiction, the person should be heard as soon as possible in that court, and should not be sent to another court”. Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:01.” S.T. v. E.M., 80 Mass.App.Ct. 423, 953 (2011).
As another example, the Supreme Judicial Court used the Guidelines to reinforce its holding that a trial court committed an error of law in ignoring the four factors contained in c. 209A that should be considered in deciding whether the parties are engaged in a “substantive dating relationship”, instead improperly relying on non-statutory factors, including, the existence of a pending criminal case, and the young age of the alleged victim. “[T]he issue of family violence has become the focus of legitimate and increasing public concern. However, that concern must not be permitted to affect or diminish the court’s responsibility to remain neutral, to protect the rights of the accused in each case, and to address each case individually on its own merits.” Judicial Guidelines § 1:02 commentary.” C.O. v. M.M., 442 Mass 648 (2004).
As the Trial Court acknowledges, “[t]he Abuse Prevention Act . . . is one of the most sensitive and potentially volatile areas of Trial Court jurisdiction.” Guidelines for Judicial Practice: Abuse Prevention Proceedings, §1:00 commentary (September 2011). Fortunately, practitioners can look to the Guidelines for comprehensive guidance on handling the myriad of complex and emotionally charged issues that arise in any given 209A case.
Rebecca Cazabon is the Pro Bono Managing Attorney at Foley Hoag LLP, where she has specialized in domestic violence and sexual assault law for the past twelve years.
On March 1, 2012, An Act Reforming Alimony, M.G.L. c. 208, §§48 – 55, became law in the Commonwealth. The new law changes the structure and rules of judicially ordered support payments between former spouses. The statute establishes different types of alimony, provides criteria for courts to consider in deciding alimony cases, and encourages end dates for most alimony orders.
Alimony in Massachusetts was historically based on the recipient’s need and the payor’s ability to pay at the time of the order. Because most recipients’ future needs and most payors’ future ability to pay are speculative, nearly all orders had open-ended duration. Thus the notion evolved that alimony is usually a life-time arrangement, changeable only after circumstances requiring modification had already occurred. If a recipient increased income or conscientiously saved, he or she risked termination or reduction of alimony. If the payor suffered involuntary financial reversal, the recipient’s alimony could be abruptly terminated or reduced, despite ongoing need. The scheme encouraged dependency, left recipients vulnerable to unplanned events, and left payors with no ability to foresee when alimony obligations would end.
Against this backdrop, and public pressure for change, the legislature passed the new law. The alimony law retains “need and ability to pay” concepts and permits judicial discretion in most instances, but it expands the narrow restrictions of present need and ability to pay, adding reasonable forward-looking presumptions. It also allows different forms of alimony for different circumstances. Mastery of the new law will require study, practice, and development of a lucid body of interpretive appellate law. In the meantime, the following tips may aid practitioners.
- UNDERTSTAND EACH TYPE OF ALIMONY AND DETERMINE WHICH IS BEST FOR YOUR CLIENT.
General term alimony is granted to a spouse who is economically dependent. It will usually follow a mid to long term marriage. Except for judgments that the parties agreed were non-modifiable, orders entered before March 2012 are deemed general term orders. General term alimony terminates when either party dies; when the payor reaches “full retirement age” (as defined in the statute); on the recipient’s remarriage; on a date fixed by court order; or perhaps if the recipient maintains a common household with a third party. The order is modifiable unless the parties agree otherwise.
Presumptive duration depends on the length of the marriage. After a marriage of twenty years or longer, alimony presumptively ends when the payor reaches full retirement age. The new statute measures marriage length for alimony purposes from the date of marriage to the date of service of the complaint for divorce. Some practitioners question whether the date of service rule will cause payors to rush to serve a complaint in order to establish a marriage length cut-off. Lawyers should advise their clients of presumptive limits but also recognize that judicial discretion may override the statutory presumptions. For example, the court may consider a significant period of premarital cohabitation or a significant marital separation in determining the length of the marriage.
Rehabilitative alimony is granted to a spouse who is expected to be self-sufficient by a predicted time. It is available after any length marriage and is payable for up to five years. It is also available after child support ends. It terminates at a set date, recipient’s remarriage, or on death of either party. It is modifiable in amount. It may be extended for compelling reasons if unforeseen events prevent the recipient from becoming self-supporting and the payor can continue to pay without “undue burden.” Because rehabilitative alimony may last longer than the presumptive limit on general term alimony for marriages of five years or less, this may be the most advantageous form for a recipient after a short marriage.
Reimbursement alimony is compensation for the recipient’s contribution to the payor’s financial resources. It is only available if the marriage was five years or less. It is not modifiable, and it is not subject to presumptive durational limits. Reimbursement alimony ends only on the death of either party or a date certain, so it may be a good choice for a recipient who plans to remarry or live with a new partner.
Income guidelines do not apply to reimbursement alimony. Therefore, reimbursement alimony may be optimal for a recipient who contributed substantially to the payor’s future where the investment has not yet paid off – for example, when one spouse put the other spouse through graduate school.
Transitional alimony is granted to transition a recipient to a new location or an adjusted lifestyle after a marriage of five years or less. It terminates at a date certain or the death of either party, is not modifiable or extendable, and is available for up to three years. It may not be replaced with a different form of alimony.
- CONSIDER DEVIATING FROM THE PRESUMPTIVE TERMINATION DATE WHEN THE ORDER IS FIRST ESTABLISHED. Under the new statute, all alimony orders presumptively terminate when the payor reaches full retirement age, if not sooner. The statute adopts the United States Social Security Act designation of full retirement age, which means that the age varies depending on the payor’s birth date. Further, when the order originates, the court (or the parties by agreement) may set a different alimony termination date for good cause shown. Deviations in initial orders require only written findings of the reasons. Agreements to deviate should state the reasons. Requests for the court to deviate should include proposed findings.
Extension of an established termination date will be difficult to secure. An extension requires a material change of circumstances that occurred after the order was entered, and clear and convincing evidence of reasons for the extension. Practitioners should determine at the outset whether facts warrant an order that is longer than the presumptive duration. Advise recipient clients that they will face a heightened burden of proof if they need to extend the order.
- CREATE A CHECKLIST OF REASONS TO DEVIATE FROM THE PRESUMPTIONS. The non-exhaustive statutory list includes: parties’ advanced age; medical concerns; sources and amounts of income, including investment income from assets that were not allocated in the divorce; tax considerations; a party’s inability to provide self-support because of the payor’s abusive conduct; a party’s lack of employment opportunity; and orders that one party maintain medical insurance or life insurance. (The latter factor directly conflicts with a provision of the equitable division statute, G.L.c. 208, §34, but the legislature is expected to remedy the conflict soon.) Because the statute presumes that alimony ends at the payor’s retirement age, lawyers should also consider the client’s expected retirement resources, especially if the parties will not be similarly situated after a long term marriage.
Divorce lawyers may want to maintain a checklist of deviation reasons and expand the list as new appellate decisions develop.
- “COMMON HOUSEHOLD” IS A QUESTION OF FACT. The new statute permits alimony modification, suspension or termination if a general term alimony recipient cohabitates with another person in a common household for at least three continuous months. A finding of “common household” requires a factual determination that the recipient and the third party reside together as a “couple.” Indicia include reputation as a couple, economic interdependence and other factors. Not expressly mentioned in the statute, but facts that practitioners may want to research, include: family memberships, joint bank accounts, and joint ownership of real estate. Look also for “couple” and “status” postings on social network media.
Conclusion: Watch for appellate interpretations of key new statutory provisions. For example, where recipients’ “need” remains the basis for alimony, does the new presumptive maximum order amount now trump “need”? In the meantime, the message of the new law is that each party should plan financially. The new law requires us to think about spousal support in terms of the client’s future needs, resources and lifestyle.
Fern Frolin practices family law at Grindle Robinson Goodhue & Frolin. She served on the joint judiciary committee task force that drafted the Alimony Reform Act of 2011.