We Are Family: Partanen v. Gallagher Applies Chapter 209C to Protect Children of Never-Married LGBTQ FamiliesPosted: May 11, 2017
by Patience Crozier
Nothing is more important in the life of a child than the security of their parental relationship. The parent-child relationship is foundational and the source of love, emotional and material support. The recent Supreme Judicial Court (SJC) case Partanen v. Gallagher, 475 Mass. 632 (2016), addressed the security of a previously vulnerable class of children – the children of never-married non-biological parents – and clarified that the Massachusetts parentage statutes ensure their equal access to legal parentage.
The facts of the case were representative of those many families in the Commonwealth and beyond. Two women, Karen Partanen and Julie Gallagher, were in a committed relationship. They planned together to have children and, with mutual involvement and consent, Ms. Gallagher conceived via assisted reproduction using donor sperm and gave birth to two children. Ms. Partanen was present at both births, and together the couple cared for the children, made mutual decisions to further their well-being, and held themselves out to family, friends and institutions such as schools and health care providers as a family. The couple did not marry or complete co-parent adoptions. Shortly after they moved back to the Commonwealth from Florida, the couple’s relationship ended. Ms. Partanen filed two actions to secure the children’s rights to continue their relationships with her, one to establish de facto parentage, and later, another to establish full legal parentage under G. L. c. 209C, arguing that Ms. Partanen is a presumed parent under the statute. The trial court dismissed the legal parentage action, holding that Ms. Partanen could not seek parentage under Chapter 209C because of her lack of biological connection to the children. Ms. Partenen appealed and the SJC took the case on direct appellate review.
Section 6(a)(4) of Chapter 209C provides that “a man is presumed to be the father of a child” if “he, jointly with the mother, received the child into their home and openly held out the child as their child.” To establish herself as a presumed parent under that provision, Ms. Partanen first had to allege that the children were born to parents who are not married to each other and, second, that she satisfied the “holding out” provision of the statute, which requires proof that she, jointly with the birth mother, received the children into their home and openly held them out as their own. Ms. Gallagher maintained that Ms. Partanen could not be a presumed parent because she had no biological connection to the children. Ms. Partanen disagreed, arguing that her complaint sufficiently alleged that she was a presumed parent under the statute.
The SJC closely examined the plain language of G.L. c. 209C, § 6(a)(4). The main question was whether Ms. Partanen could establish herself as a presumed parent without any biological relationship to the children. In analyzing § 6(a)(4), the SJC reiterated the familiar rule that statutes must be read in gender-neutral terms. The Court concluded that the statute’s plain language applies to children born to same-sex couples who lack biological ties with their children. Because no statutory language required a biological connection between parent and child, the Court declined to read into the statute such a requirement, particularly when doing so would undermine the statute’s purpose by making this class of children more vulnerable. The SJC further noted that insofar as a father may validly execute a voluntary acknowledgment of parentage absent a biological relationship, same-sex parents must be able to do the same. The Court reasoned that lack of a genetic tie cannot rebut the presumption of parentage when the parentage claim is not based on a genetic tie. Numerous other state courts have interpreted similar statutory provisions to allow the establishment of parentage in similar circumstances, including California, Colorado, New Hampshire and New Mexico.
Turning to the facts of this case, the Court concluded that Ms. Partanen adequately alleged parentage under the statute. The SJC held that she met the two-step test articulated in § 6(a)(4) because she and Ms. Gallagher created a family together with shared involvement, consent and intention, satisfying the requirement that the children were “born to” them. Ms. Partanen also adequately alleged that she “received the child into their home and openly held out the child as their child” in her assertions that they lived as a family, actively cared and made decisions together for the children, and represented themselves to others as their parents.
The implications of Partanen are far-ranging. It is now clear that non-marital same-sex couples can execute voluntary acknowledgments of parentage in the hospital at birth, the key administrative route for establishing a non-marital parent-child relationship and one that saves families the expense and delay of establishing parentage through the court system. Further, these parents can also seek an adjudication of parentage in the courts under G. L. c. 209C, § 6(a)(4), a clear and established means of asserting parentage that is more affordable, accessible and reflective of the family’s reality than de facto parent litigation. Finally, never-married, non-biological parents may now be able to receive counsel and participate in child welfare and juvenile court proceedings regarding their children. A class of parents previously cut out of involvement and decision-making in their children’s lives can now access the full range of protections of legal parentage. Partanen also further highlights the great diversity of families in the Commonwealth, where legal parentage can arise from marriage, adoption, genetic ties and through conduct. Partanen represents a major step forward in ensuring security and equality for all children.
Patience Crozier served on the team of appellate attorneys for Karen Partanen along with co-counsel Mary L. Bonauto, Elizabeth Roberts and Teresa Harkins La Vita. Amici in support of Ms. Partanen’s legal arguments indicate the depth and breadth of support for her position. Amici included the Attorney General of Massachusetts, Greater Boston Legal Services, Children’s Law Center, Massachusetts LGBTQ Bar Association, Women’s Bar Association of Massachusetts, Community Legal Aid, Carolyn Famiglietti, Maureen McBrien, Massachusetts Bar Association, American Academy of Assisted Reproductive Technology Attorneys, Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2Parenthood, Resolve: The National Infertility Association, Resolve New England, and Forty-two Law Professors.
Cardno Chemrisk v. Foytlin: Supreme Judicial Court Holds that Anti-SLAPP Law Protects Opinion WritingPosted: May 11, 2017
by Jeffrey J. Pyle
Anyone who has litigated a special motion to dismiss under the Massachusetts anti-SLAPP law knows they are typically won or lost on the question of whether the suit is based on “petitioning” activity. Passed in 1991 to protect citizens from “strategic lawsuits against public participation,” the anti-SLAPP law, G.L. c. 231, § 59H, provides that if a plaintiff brings a lawsuit based on the defendant’s exercise of its constitutional right to petition, the trial court must dismiss the action—and award attorneys’ fees—unless the plaintiff proves that the defendant’s petitioning was devoid of legal or factual merit and that the plaintiff suffered damages. Proof that petitioning activity is “devoid” of merit is difficult for a plaintiff to assemble at the pleadings stage, so the fight usually centers on the first part of the analysis: whether the activity in question was in fact “petitioning.”
The Supreme Judicial Court (“SJC”) has repeatedly held that the anti-SLAPP statute applies only to parties who seek redress of grievances of their own or otherwise petition on their own behalf, not to those who air the grievances of others. However, in the recent case of Cardno Chemrisk v. Foytlin, 476 Mass. 479 (2017), the Court softened that rule, extending protection to opinion writing that addresses subjects of broad political and social concern.
The defendants in the case, Cherri Foytlin and Karen Savage, are environmental activists concerned about the effects of contamination from the Deepwater Horizon oil rig spill on the Gulf Coast and on cleanup workers. On October 13, 2013, they published an article in the Huffington Post about ongoing federal litigation against British Petroleum (“BP”) in Louisiana, in which BP asserted that only a minimal amount of oil escaped as a result of the explosion of the rig. In their article, Foytlin and Savage state that BP “does not exactly have a reputation for coming clean on the facts surrounding the disaster,” and they held up as an example a report written for BP by Cardno ChemRisk, LLC (“ChemRisk”), a scientific consulting firm, which concluded that cleanup workers had not been exposed to harmful levels of certain chemicals. Foytlin and Savage disputed ChemRisk’s independence and stated that it had “a long, and on at least one occasion fraudulent, history of defending big polluters, using questionable ethics to help their clients avoid legal responsibility for their actions.” ChemRisk sued the pair for libel.
In their anti-SLAPP motion to dismiss ChemRisk’s suit, Foytlin and Savage argued that their article was written in connection with pending court proceedings, and therefore met the statute’s definition of “a party’s exercise of its right of petition.” The Superior Court acknowledged that the defendants were activists and that they “wrote and posted the article as part of their work to influence ongoing governmental proceedings and court cases,” yet denied their motion on the ground that the article addressed the grievances of only the cleanup workers, not those of Foytlin and Savage themselves. The Superior Court relied on a line of cases denying protection to those not seeking redress of “grievance[s] of [one’s] own”—in particular, Fustolo v. Hollander, 455 Mass. 861 (2010), which upheld the denial of an anti-SLAPP motion by a journalist who had written objective news stories about a controversial development project because the stories were not written to advocate her own point of view.
On direct appellate review in Cardno Chemrisk, the SJC reversed, declining to extend the reasoning in Fustolo to the case against Foytlin and Savage. It would take “a constrained view” of the First Amendment petitioning right, the Court held, to deny protection to environmental activists sued for publishing an opinionated news article about environmental devastation against the backdrop of pending court proceedings. Citing Town of Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587, 594 (2014), the Court held that the anti-SLAPP law, “like the constitutional right it safeguards, protects those looking to ‘advance[e] causes in which they believe,’” including the cause of protecting the environment. The Court distinguished Fustolo by explaining that the journalist there had been “employed to write, and did write, impartial news articles, despite having personal views on the same subjects,” and her “objectivity was pivotal to the decision insofar as the reporter was not exercising her own constitutional right to petition when authoring the challenged articles.” That was not the case with Foytlin and Savage, whose personal views were reflected clearly in their article.
The Cardno Chemrisk decision is welcome news for writers of blogs, op-eds and letters to the editor about issues before government bodies. Such publications are now protected if they espouse the author’s “personal views,” even if they are not intended to protect the writer’s own “private rights.” However, the SJC did not articulate a test to determine whether writing is opinionated as opposed to “impartial” and “objective” news reporting—concepts that may have less of an agreed-upon meaning now than at any time in modern history. One can only guess, for example, how the SJC would rule in a case about a muckraking investigative article that presents hard facts in a manner obviously intended to make a case for government reform, but that does so without overtly stating that the author is presenting “personal views.”
The Cardno Chemrisk decision also raises questions about the scope of protection afforded to professionals, including lawyers and experts, who assist the petitioning activities of others. In an earlier decision, Kobrin v. Gastfriend, 443 Mass. 327 (2005), the SJC denied anti-SLAPP protection to a physician expert testifying for the government in a regulatory proceeding because he was not petitioning on his own behalf. The Cardno Chemrisk court distinguished Kobrin on the ground that the physician was acting as a mere “vendor of services” who had a “merely contractual” relationship to the issues in the case—unlike Foytlin and Savage, who were advancing a cause in which they believed. Yet the Court previously indicated that attorneys who represent parties petitioning the government must be protected by the anti-SLAPP law—despite their status as mere “vendor[s] of services”—lest their exclusion cause a “chilling effect” on petitioning. Cadle Co. v. Schlichtmann, 448 Mass. 242, 252 (2007). Clarification of this issue, and of the scope of petitioning rights more generally, will have to await future cases.
Jeffrey J. Pyle is a partner in the Media and First Amendment Law Practice Group at Prince Lobel Tye in Boston, Massachusetts. Along with Thomas Sutcliffe of Prince Lobel and Sarah Wunsch of the American Civil Liberties Union of Massachusetts (ACLUM), Jeff submitted an amicus brief in Cardno Chemrisk v. Foytlin on ACLUM’s behalf.
Commonwealth v. Lawson and Commonwealth v. Griffin: Recent Changes in Criminal Responsibility and the Presumption of SanityPosted: May 11, 2017
by Crystal L. Lyons
This past fall, without much portent, the Supreme Judicial Court (“SJC”) created a seismic shift in the law of criminal responsibility when it eliminated the “presumption of sanity” in Commonwealth v. Lawson, 475 Mass. 806 (2016). As a result, the presumption of sanity will no longer carry the Commonwealth’s burden of proof and may no longer be considered as evidence of sanity. In fact, juries will no longer even receive an instruction on the presumption of sanity. Id. at 807, 814-815 & n.8. This article addresses Lawson’s explicit guidance, analyzes its application just a week later in Commonwealth v. Griffin, 475 Mass. 848 (2016), and anticipates the questions that both cases implicitly left open.
Before Lawson, when a question of the defendant’s criminal responsibility was raised, courts were required to instruct juries that they may consider that, because a great majority of persons are sane, there was a resulting likelihood that the defendant was sane. Lawson, 475 Mass. at 815 & n. 8. In Lawson, however, the SJC announced that rather than a true legal presumption, the “presumption” of sanity is instead “merely an expression” of the “commonsense understanding” that a defendant is probably sane because most people are sane.
In Lawson, the SJC recast a defendant’s lack of criminal responsibility as an affirmative defense, akin to self-defense. As an affirmative defense, the defendant must first proffer “some evidence” that, “viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the defendant was criminally responsible at the time of the offense.” Id. at 807, 811. After doing so, “the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was criminally responsible.” Id.
Although the SJC appeared to anchor its decision in established precedent, Lawson breaks new ground and will have significant effects in the future. For example, Lawson cited Commonwealth v. Keita, 429 Mass. 843 (1999), for the proposition that the Commonwealth already bore the burden of proving that the defendant was criminally responsible. Previously, however, the Commonwealth’s burden was usually a mere formality where the presumption of sanity alone was sufficient to overcome a challenge. See Lawson, 475 Mass. at 813; cf. Commonwealth v. Vives, 447 Mass. 537, 540 (2006) (characterizing mental illness as a hindrance to the defendant’s ability to form a specific intent rather than as an affirmative defense). Now, however, to prove criminal responsibility, the Commonwealth must establish either:
1) That at the time of the alleged crime, the defendant did not suffer from a mental disease or defect; or
2) That if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law.
Griffin, 475 Mass. at 856 (citing Model Jury Instructions on Homicide 10 (2013)).
The Commonwealth can establish the defendant’s mental capacity at the time of the offense through either circumstantial or medical evidence. Lawson, 475 Mass. at 815-817. The types of circumstantial evidence that can support the inference of sanity are already well-known from prior cases. They include: the circumstances of the offense; efforts to plan the offense; a rational motive to commit the offense; rational decisions made proximate to the offense; efforts to avoid capture; attempts to conceal the offense or the defendant’s role in the offense; words and conduct before, during, and after the offense; and evidence of malingering. Id. “Where, however, this [circumstantial] evidence provides only weak support for a finding of criminal responsibility,” the Court made clear that “the Commonwealth proceeds at its peril if it chooses to offer no expert to rebut a defense expert’s opinion of lack of criminal responsibility.” Lawson, 475 Mass. at 817. Medical evidence is typically presented through expert testimony.
Even though criminal responsibility is not an element of any offense, because the Commonwealth bears the burden of presenting sufficient evidence for a rational fact-finder to find criminal responsibility, a defendant may now seek a required finding of not guilty on the ground that the Commonwealth presented insufficient proof. Id. at 812. A motion for a required finding on that basis can be raised only at the close of all evidence, however, because practically speaking, evidence of such a defense is typically first offered during the defense’s case, after which the Commonwealth is permitted a full opportunity to rebut any such defense. Id. at 816-817. The circumstantial evidence of sanity described above is generally sufficient to overcome a motion for a required finding except when a defense expert’s view of the evidence shows the Commonwealth’s argument for sanity to be “incredible or conclusively incorrect.” Id. at 817-818.
Just six days after deciding Lawson, the SJC applied its new framework in Griffin. Although the Court affirmed the defendant’s first degree murder conviction for killing his young daughter, in analyzing whether the Commonwealth had met its burden of proving criminal responsibility, the Court first highlighted the Commonwealth’s lack of medical expert testimony. Griffin, 475 Mass. at 855-856. This is noteworthy not only because the defendant had not presented an expert (though he had secured funds to hire one) but also because the circumstantial proof of sanity appeared overwhelming. The Commonwealth’s evidence in Griffin mapped perfectly onto the categories identified in Lawson. It showed that the defendant: acted normally in the days leading up to the killing; before the crime, prepared a last will and testament and left a note at his home apologizing for his “sins” and asking for God’s mercy; had a strong motive for the killing, which he had discussed with others; carefully planned the killing, including assembling all the necessary materials, choosing to walk to minimize the sound of his approach, turning off the electricity to the house and taking off his shoes upon his arrival to reduce the chance of being discovered, and cutting telephone lines to eliminate calls for help; and methodically cleaned the basement crime scene and repacked his materials after the murder. Id. at 856-857. The defendant’s only evidence of lack of criminal responsibility consisted of self-serving pre-trial statements in which he had claimed that God told him to commit the murder (even though there was no indication he was deeply religious or possessed religious materials) and had described the severity of his mental illness (descriptions which were proven by evidence at trial to be overstated). Id. at 857. By highlighting the Commonwealth’s absence of a prosecution expert in these circumstances, Griffin raises the question whether the prosecution should consider using an expert even in the cases that seem to least warrant one.
The Court clarified that a prosecutor may properly address in closing argument the inferences to be drawn from circumstantial evidence and inconsistencies in the defendant’s evidence as that evidence bears on criminal responsibility; in so doing, he or she “does not testify as an unqualified expert witness.” Id. at 860. The Court also clarified that Lawson’s elimination of the instruction on the presumption of sanity was not merely a prospective change. The Court concluded that the instruction had been erroneously provided in Griffin, but that it had not created a substantial likelihood of a miscarriage of justice where “the trial judge strongly and specifically instructed that the burden is on the Commonwealth to the prove criminal responsibility beyond a reasonable doubt” and where “substantial evidence” supported the jury’s finding of criminal responsibility. Id. at 862-863.
Although Lawson’s and Griffin’s affirmation of the convictions might suggest it will be business-as-usual in criminal responsibility cases despite the Court’s shift, the cases raise several important questions. First, what quantum of proof will be necessary for a defendant to sufficiently raise “some evidence” of a criminal responsibility defense, particularly if the defendant presents no direct medical evidence or testimony (whether because expert testimony cannot be secured or perhaps because no previous treatment or diagnosis exists) and relies solely on arguably self-serving statements to sustain the defendant’s burden of production? Second, under what circumstances may a defense expert’s testimony show the Commonwealth’s evidence to be “incredible or conclusively incorrect” and thereby insufficient to overcome a motion for a required finding of not guilty? One can imagine a situation in which an expert testifies that the inferences argued by the Commonwealth are invalid given the defendant’s diagnosis and that the circumstantial evidence presents normal or expected symptoms of the claimed mental illness. Finally, what differences may exist between sufficient evidence to sustain the Commonwealth’s burden of proof of criminal responsibility under the familiar Latimore standard—viewing all evidence and resolving all inferences in favor of the Commonwealth—and what may be necessary to establish “substantial evidence” of criminal responsibility in pre-Lawson cases where the presumption of sanity instruction has already been provided?
The Commonwealth will need to evaluate carefully whether to call an expert in any case that raises a potential criminal responsibility defense. Despite the Court’s assurances in both cases that “the Commonwealth need not offer expert testimony in every case,” Lawson, 475 Mass. at 807; Griffin, 475 Mass. at 855-856, the SJC highlighted in Griffin the lack of an expert for the Commonwealth. That the Court would do so in a case with overwhelming circumstantial evidence of sanity—and no defense expert testifying to the contrary—suggests that the cautious approach for the Commonwealth to avoid the possibility of reversal will be to call a prosecution expert nonetheless. Lawson, 475 Mass. at 817.
Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, where she also serves as Captain of the Mental Health Team. She is a member of the BBJ Board of Editors. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.
On July 29, 2016, the Supreme Judicial Court decided Commonwealth v. Wade, 475 Mass. 54 (2016), which defined the reach of the DNA testing statute, General Laws Chapter 278A, enacted in 2012. Wade presented two key issues. First, could Wade obtain post-conviction DNA testing under Chapter 278A by demonstrating that the requested scientific/technical analysis had not yet been developed at the time of conviction without also proving the primary reason that DNA testing was not pursued at the time of trial? Second, by filing a request for DNA testing under Chapter 278A, did Wade waive the attorney-client privilege over his communications with trial counsel about DNA testing, thus permitting the judge hearing his Chapter 278A motion to require Wade’s trial lawyer to testify about those privileged communications? The SJC decided both issues in favor of Wade. In doing so, the SJC ensured that Chapter 278A would fulfill the legislature’s purpose of making DNA testing more readily available to those convicted of crimes who assert their innocence.
In 1997, Robert Wade was convicted of felony-murder where the underlying felony was aggravated rape. Wade did not seek DNA testing at the time of trial. When the Legislature enacted Chapter 278A in 2012, Wade promptly filed a motion under the new law (the “278A motion”) seeking post-conviction DNA testing of some physical evidence introduced at his trial.
The Legislature promulgated Chapter 278A “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques.” Wade, 475 Mass. at 55. Chapter 278A allows a person who has been convicted of a crime and who claims that he or she is factually innocent of the offense to seek forensic or scientific testing, including DNA testing, of evidence or biological material. To succeed, the movant must show that (1) the requested analysis would be admissible in court, (2) the analysis has the potential to result in evidence material to the person’s identification as the perpetrator of the crime, and (3) the evidence or biological material has not been subjected to the requested analysis on account of one of five grounds outlined in Section 3(b)(5) of Chapter 278A. Those grounds are:
(i) that the requested analysis had not been developed at the time of the conviction;
(ii) that the results of the requested analysis were not admissible at the time of the conviction;
(iii) that the movant and his or her trial attorney were not, and had no reason to be, aware of the existence of the evidence or biological material at the time of the underlying case or conviction;
(iv) that the movant’s trial attorney was aware of the evidence, the results of the requested analysis were admissible at the time of trial, a reasonably effective attorney would have requested the analysis, and either the movant’s attorney failed to do so or the court denied the request; or
(v) that the evidence or biological material was unavailable at the time of the conviction.
Under Section 7(b) of Chapter 278A, the court “shall” allow the requested analysis if the movant shows, among other things, that DNA testing had not been performed “for any of the reasons” enumerated in Section 3(b)(5).
In an earlier appeal of an order denying Wade’s 278A motion at a preliminary stage of review (Commonwealth v. Wade, 467 Mass. 496 (2014)), the SJC concluded that Wade had adduced enough information in the motion to meet the law’s threshold requirements and remanded the case to the trial court for an evidentiary hearing to determine, among other things, whether Wade could establish one of the five Section 3(b)(5) grounds enumerated above. Wade, 475 Mass. at 57-58. In the proceedings on remand, which led to the 2016 SJC decision, Wade initially claimed that two of the Section 3(b)(5) grounds entitled him to DNA testing: first, the requested analysis had not been developed at the time of the conviction (the “undeveloped analysis” argument) and, second, Wade’s trial lawyer had not sought DNA testing and a reasonably effective lawyer would have done so (the “reasonably effective attorney” argument).
Before the hearing on remand, the Commonwealth moved for leave to examine Wade’s trial counsel on the question of whether a “reasonably effective attorney” would have sought the requested testing at the time of trial. Wade opposed such testimony, asserting his attorney-client privilege. The trial court allowed the Commonwealth’s motion. Wade petitioned for relief before a single justice, who determined that examination of Wade’s trial counsel could proceed if trial counsel could testify “without revealing attorney-client communications.”
At the hearing on the 278A motion, the Commonwealth examined Wade’s trial lawyer. Wade again objected on privilege grounds. When Wade’s privilege objection was overruled, Wade waived his claim under the reasonably effective attorney prong and proceeded solely on the undeveloped analysis argument. Despite Wade’s abandonment of the reasonably effective attorney argument, the Commonwealth questioned Wade’s trial counsel about privileged pre-trial conversations with Wade concerning the reason for not pursuing DNA testing, arguing that even when a movant like Wade seeks relief solely on the undeveloped analysis argument, the “actual reason that the evidence was not tested” must be adduced, which can be done through the questioning of trial counsel. Wade, 475 Mass. at 59.
The motion judge agreed with the Commonwealth and required Wade’s trial counsel to reveal the substance of his pre-trial conversations with Wade about the crime and the wisdom of seeking DNA testing. The judge denied Wade’s subsequent motion to strike the privileged testimony and ultimately relied on that testimony, in part, to reject Wade’s request for DNA testing. Even though the motion judge found that Wade was correct that the requested analysis had not been developed at the time of conviction, the court rejected the claim that this was enough to satisfy Section 7(b). Rather, the judge concluded that “the proper inquiry” under Section 7(b) is “‘what was the primary “reason,” i.e., the primary cause, why the material was not previously subjected to the requested analysis.’” Wade, 475 Mass. at 59 (quoting the trial court). Although the motion judge found that Wade was correct that more sophisticated DNA tests were available in 2014 than were available at the time of trial, he concluded that the absence of such precise testing was not the “primary” reason Wade didn’t request a DNA test at that time. Instead, despite the fact that Wade had abandoned his argument under the reasonably effective attorney prong, the motion judge concluded that the primary reason DNA testing was not sought at trial was because a reasonably effective attorney would not have sought the requested analysis under the circumstances and, thus, Wade had not satisfied this Section 3(b)(5) factor.
On appeal to the SJC, Wade argued that he had satisfied Chapter 278A’s requirements and that the Superior Court had improperly intruded upon his privileged attorney-client communications. The BBA, which had advocated for the statute’s passage, agreed and filed an amicus brief in support of these arguments.
As to Chapter 278A, Wade argued that the motion judge misread the statute and that the showing Wade had made – namely, that the requested analysis had not been developed at the time of the conviction – was enough by itself to satisfy the requirements of Section 3(b)(5). The trial judge erred, Wade argued, by requiring Wade to establish the primary cause for not pursuing testing at the time of trial. Because the sole issue was why the evidence had not been subjected to the analysis requested in the 268A motion (which did not exist at the time of trial), Wade argued that it was irrelevant why his counsel did not seek a prior form of DNA testing at the time of trial and whether not seeking such testing was a reasonably effective strategy. Furthermore, Wade had expressly abandoned his reasonably-effective attorney argument, making any inquiry of his trial counsel irrelevant. Wade asserted that the trial court’s mistaken reading of Chapter 278A increased the burdens on a person seeking DNA testing under Chapter 278A on an undeveloped analysis claim by requiring a movant to place privileged communications with trial counsel at risk, thereby undercutting the legislative purpose to reduce the barriers to DNA testing. On the issue of privilege, Wade argued that requiring Wade’s trial counsel to reveal highly confidential, attorney-client communications was a grave error, as there was no express or implied waiver of the privilege by Wade under the facts of this case and none required under Chapter 278A itself.
The SJC’s Decision
The SJC agreed with both of Wade’s core arguments.
The SJC found that the Legislature’s goal in enacting Chapter 278A was “to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques . . . [to] provide a more reliable basis for establishing a factually correct verdict than the evidence available at the time of the original conviction,” that Wade’s satisfaction of the undeveloped-analysis prong of Section 3(b)(5) alone was enough to merit relief under the statute and that the motion judge erred by requiring Wade to also show that this reason was the primary reason trial counsel did not seek DNA testing. Wade, 475 Mass. at 55.
The SJC found that a plain reading of Chapter 278A demonstrated that any one of the reasons enumerated in Section 3(b)(5) sufficed to satisfy the statute, as “[t]he language of the act plainly indicates the Legislature’s intent to provide a moving party with a choice among several, distinct reasons advanced by the moving party to explain why the material had not been previously subjected to the requested testing.” Wade, 475 Mass. at 61. As a result, there was no need for Wade to also show what a reasonably effective lawyer would have done.
The SJC also rejected the motion judge’s finding that a movant, in addition to proving one of the Section 3(b)(5) grounds, must also establish the “primary” or “actual” reason testing was not conducted at the time of the original prosecution. It found nothing in the act to suggest that the Legislature sought to impose such a burden on movants. The fact that the now-requested analysis did not exist at the time of Wade’s trial, alone, was enough to support Wade’s request. The SJC also noted that its 2014 Wade decision had foreclosed the argument that a party would be precluded from obtaining DNA testing under Chapter 278A if his or her trial counsel made a strategic choice not to seek DNA testing. Because even the reasonably effective attorney inquiry was objective, the actual reason a movant’s trial lawyer did not seek testing was irrelevant the analysis of any of the factors under Section 3(b)(5).
As to the privilege issue, the SJC rejected the Commonwealth’s contention that seeking a DNA test under Chapter 278A necessarily waives a movant’s attorney-client privilege with his or her trial counsel. Certainly, Wade’s reliance on a wholly objective ground – whether the requested DNA analysis existed at the time of his trial – did not put at issue any privileged attorney-client communications. Perhaps more significantly and as noted, the SJC found that even in cases where a party relies on the reasonably-effective-attorney prong, “that inquiry is also objective, and therefore does not require testimony or an affidavit from trial counsel.” Wade, 475 Mass. at 65. Finally, and regardless of the Section 3(b)(5) prong relied on, the 278A movant is not required to establish the “real” or “primary” reason testing was not sought at the time of trial, and thus it is error to invade the privilege in pursuit of that inquiry. Because Wade had not effected an “at issue” waiver by filing his petition, the SJC concluded that the trial court should have allowed Wade’s motion to strike all privileged communications disclosed by trial counsel.
The SJC’s decision in Wade restored the goal of Chapter 278A – to make DNA testing more readily available to convicted persons than it had been. Further, its clear rejection of the claim that filing a 278A motion necessarily waives the attorney-client privilege with trial counsel eliminates a major impediment to convicted persons seeking relief under Chapter 278A and prevents an improper invasion into the privilege.
Michael D. Ricciuti is a partner at K&L Gates where he co-leads K&L Gates’ global Government Enforcement practice. He is a member of the Boston Bar Association’s Council and Steering Committee for the Criminal Law Section and previously served as Secretary of the Boston Bar Association.
Kathleen D. Parker is an associate at K&L Gates where her practice focuses on complex civil litigation, internal investigations, and government enforcement.
Patrick C. McCooe is an associate at K&L Gates where he concentrates his practice in government enforcement, white collar criminal defense, and complex civil litigation.
The authors drafted and filed the BBA’s amicus brief on behalf of Wade before the Supreme Judicial Court.
In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”), the Supreme Court upheld the constitutionality of the University of Texas at Austin’s (“UT”) race-conscious admissions program. The 4-3 decision ended Abigail Fisher’s long-running equal protection challenge to UT’s policy. The decision surprised many observers after the Court’s earlier consideration of the case in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (“Fisher I”), in which the Court had seemed to establish a more demanding, and perhaps insurmountable, standard of review.
Fisher II gives new hope to universities seeking to employ race-conscious admissions policies to promote diversity. The decision reaffirms the framework of Grutter v. Bollinger, 539 U.S. 306 (2003), without restating Grutter’s prediction that affirmative action would no longer be necessary in 25 years. Fisher II declares that universities are owed “considerable deference” in articulating diversity goals and, by accepting UT’s showing on race-neutral alternatives, suggests more leeway for universities to develop narrowly-tailored policies geared to their specific circumstances.
In 2003, the Supreme Court in Grutter applied “strict scrutiny” analysis to a race-conscious admissions policy, holding that diversity is a compelling governmental interest that can justify the narrowly-tailored use of race in public university admissions. 539 U.S. at 326-27. Grutter upheld an admissions policy that sought to admit a “critical mass” of minority students by considering race as one factor among many in a holistic, individualized process, when doing so was necessary to achieve the educational benefits of a diverse student body.
Fisher first challenged UT’s policy after being denied admission in 2008. Under UT’s policy, most freshmen are admitted using a percentage plan that guarantees admission to Texas high school students in approximately the top 10 percent of their class. The remaining freshmen are admitted through a holistic review process that combines each applicant’s SAT score and grades with her “Personal Achievement Index” comprising numerous other factors including race. UT’s policy was designed to comply with Grutter.
Fisher did not qualify under the percentage plan and challenged only the policy’s holistic review component, arguing that it overstepped Grutter or, alternatively, that Grutter should be overruled. The district court granted summary judgment in favor of UT, and the Fifth Circuit affirmed. In Fisher I, the Supreme Court reversed in favor of Fisher, holding that the Fifth Circuit had applied an incorrect legal standard by giving too much deference to UT in considering the narrow-tailoring requirement. Fisher I, 133 S. Ct. at 2420-21. The Court remanded to the Fifth Circuit to engage in a new, and apparently more rigorous, examination of UT’s admissions criteria to see whether it was consistent with Grutter, stating that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. at 2420 (emphasis added).
On remand, the Fifth Circuit upheld the policy, Fisher appealed again, and the Supreme Court granted certiorari.
The Fisher II Opinion
In Fisher II, the majority opinion articulated three controlling principles. 136 S. Ct. at 2207-08. First, the use of race must withstand strict scrutiny. Second, if the university chooses to “pursue the educational benefits of student body diversity,” and articulates “a reasoned, principled explanation” for that choice, its conclusion that diversity serves its educational goals is entitled to judicial deference. Third, the university nonetheless bears the burden of proving that “race-neutral alternatives that are both available and workable do not suffice,” a determination to which “no deference is owed.”
The Court concluded, among other things, that the record established that UT “articulated concrete and precise goals” that mirrored the compelling interest in diversity that the Court had previously approved in Grutter. Id. at 2211. The Court concluded that “a reasonable determination was made that the University had not yet attained its [diversity] goals.” Id. at 2212.
Notably, although the record in the case was extensive, the decision did not declare that any particular type of evidence was necessary to demonstrate narrow tailoring.
The Court rejected Fisher’s emphasis on the purportedly race-neutral percentage plan, explaining that percentage plans, “though facially neutral,” “are adopted with racially segregated neighborhoods and schools front and center stage.” Id. at 2213. The Court then stated that “to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.” Id. at 2213-14.
Justice Alito dissented, criticizing the Court’s deference to UT without requiring UT to articulate specific objectives, such as numerical metrics for critical mass. Id. at 2215-43. This, he argued, made the narrow-tailoring inquiry “impossible.” Id. at 2222.
The Court’s opinion includes several caveats, including the explicit statement that UT’s program is sui generis. Id. at 2208. This language may limit the opinion’s value for prospective guidance.
Nonetheless, Fisher II appears to soften Fisher I’s standard for race-conscious admissions policies. The decision importantly concedes that universities—rather than the courts—are best positioned to assess the benefits of diversity on their campuses and how to achieve those goals. The opinion thereby eschews the Fifth Circuit’s focus on critical mass and how specifically UT had to define metrics for critical mass.
Fisher II confirms Grutter’s holding that a university’s pursuit of diversity can constitute a compelling government interest. Consistent with Grutter, a university must carefully evaluate how the benefits of diversity relate to its specific mission and circumstances. A university must show that any available and workable race-neutral alternatives are “insufficient” to meet diversity goals and, if it adopts a race-conscious policy, must utilize an individualized, holistic review such as that of UT, where race is but a “factor of a factor of a factor.” Id. at 2207.
Giving Universities Deference
In perhaps the most significant sentence for universities crafting admissions policies, the majority opinion states, “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Id. at 2214. The opinion thus recognizes that more than one policy might survive under this standard and that universities, like states, “can serve as ‘laboratories for experimentation.’” Id. Fisher II’s reasoning implies that universities have some flexibility in the narrow-tailoring analysis to adopt policies tailored to their specific goals.
Dean Richlin is a partner in the Litigation and Administrative Departments at Foley Hoag LLP. Sarah Burg is a litigator in the firm’s Intellectual Property Department.
Attorneys who advise closely-held corporations face recurring ethical challenges when conflicts develop among owners and managers of the business. The Supreme Judicial Court recently issued a unanimous decision, Bryan Corp. v. Abrano, 474 Mass. 504 (June 14, 2016), http://scholar.google.com/scholar_case?case=10526802548823881243&hl=en&as_sdt=6&as_vis=1&oi=scholarr that provides much needed guidance to attorneys practicing in this area and that has broader implications for attorney-client relationships generally. The decision addresses, among other important ethical concerns, how to assess conflicts of interest and obtain informed consent, how to properly terminate a client relationship, to whom in a close corporation do attorneys owe a duty of loyalty, and under what circumstances, if any, are attorneys permitted to drop one client like a “hot potato” for another, presumably more lucrative, opportunity.
Law Firm Disqualified
In Abrano, a law firm was advising certain officials of Byran Corp., a closely held corporation, and representing the corporation in litigation against another company. The law firm did not have an agreement with the client limiting the scope of the engagement or addressing conflict or withdrawal situations. A dispute arose over the company’s compensation of its shareholders. The law firm advised one of the shareholders on the pay dispute, sent a demand letter to Bryan Corp. on behalf of a group of shareholders, and subsequently withdrew from its representation of Bryan Corp. in the pending litigation. The law firm terminated its representation of the company by sending a notice to a Bryan Corp. officer whom the law firm was representing in the pay dispute. When lawsuits erupted over the pay dispute, Bryan Corp. moved to disqualify its former law firm from representing adverse parties.
The SJC upheld the trial court’s order disqualifying the law firm. Notably, there was no finding of actual prejudice, nor were there any findings of fact supporting the order. The SJC’s holding rested on violations of both the common law duty of loyalty that attorneys owe clients and Massachusetts Rule of Professional Conduct 1.7, governing concurrent and successive representation of clients. The SJC reasoned that the compensation dispute with current shareholders created a potential conflict that made it improper for the corporation’s law firm to represent those individual shareholders as concurrent clients without first obtaining the company’s informed consent. By accepting the new representation without first obtaining such a waiver, the law firm breached its duty of loyalty to Bryan Corp. and violated the prohibition in Rule 1.7 against concurrent representation of clients whose interests are materially adverse. The decision also confirmed that disqualification can be a proper remedy for ethical violations even without a showing of actual prejudice.
The court also held that law firm’s termination of the client engagement was improper. Consent to terminate an engagement with an organizational must be given by an authorized representative of the organization who has no conflict of interest in the decision. Moreover, the development of the conflict between Bryan Corp. and certain shareholders did not, by itself, justify the firm’s withdrawal as counsel for the company in the pending but unrelated litigation.
The law firm argued that initially there was no adversity between the shareholders and the company and no showing of actual prejudice. The SJC rejected those arguments as overly narrow readings of Rule 1.7, which encompasses the duty to anticipate potential conflicts, and Rule 1.13, the comments to which instruct that when an organizational client’s interests may be or become adverse to those of a constituent, the lawyer should advise the constituent of the conflict or potential conflict of interest and that the lawyer cannot then represent the constituent. The law firm had a duty to use “reasonable measures” to ascertain whether an actual conflict of interest was likely to occur, and, in this case, the law firm “should have known” that the interests of their concurrent clients were likely to become adverse in the near future, given the structure of the small board, the compensation dispute, and prior advice the law firm had given the shareholders about likely conflicts occurring if the board membership changed.
Fulfilling the Duty of Loyalty
Abrano illuminates the breadth and depth of the duty of loyalty that Massachusetts attorneys owe their clients. To fulfill that duty, attorneys must maintain undivided loyalty to the client during the term of the engagement. The SJC explains that such undivided loyalty means taking no actions adverse to a current client and declining likely adverse representations without the client’s informed consent. The duty of loyalty also obligates attorneys to complete their engagements, unless the client relationship is terminated with informed consent by an unconflicted representative.
Abrano clarifies that attorneys representing corporate clients cannot also represent individual shareholders without the corporate client’s consent if it is reasonably foreseeable that a conflict will arise. Nor can attorneys accept the individual representation and then withdraw as corporate counsel when the conflict develops: “a firm may not undertake representation of a new client where the firm can reasonably anticipate that a conflict will develop with an existing client, and then choose between the two clients when the conflict materializes.”
Abrano puts the burden on attorneys to assess the likelihood of a conflict when considering concurrent representation. Attorneys must undertake “reasonable measures” to anticipate conflicts and will be held to professional negligence standards in doing so. Precisely what measures are reasonable under different circumstances is unclear, and Abrano gives no further guidance beyond the facts specific to that case.
Hot Potato Doctrine Not Adopted
The SJC expressly declined to decide whether to adopt the so-called Hot Potato doctrine, which limits a firm’s ability to drop a client “like a hot potato” so that it may accept or continue representation of another client in a matter adverse to the first client. The SJC found that the duty of loyalty and professional rules were sufficiently broad to address the situation in Abrano, where the law firm started a new, potentially adverse engagement before terminating the existing client relationship. What is left unanswered is whether an attorney may terminate a client relationship and shortly afterwards engage a new client adverse to the former client. Is the Hot Potato doctrine needed to regulate such situations where the matters are unrelated, or is Rule 1.9 sufficient?
Abrano highlights the importance of carefully crafted engagement letters to avoid ethical as well as practical problems in the attorney-client relationship. An engagement letter should (i) identify who is the client, (ii) explain what will happen if a potential conflict arises among concurrent clients, including which client (if any) the attorney will continue to represent after the conflict arises, (iii) limit the scope of engagement; (iv) explain how the engagement may terminate before its completion, and (v) discuss business concerns, including representation of competitors or other adverse parties on unrelated matters. Done correctly, engagement letters should encourage ethical conduct, avoid misunderstandings, and simplify decision-making for attorneys and clients.
The Abrano decision brings much needed guidance for attorneys representing closely-held businesses and for all attorneys facing questions about how to begin and end client relationships properly. Several questions remain unanswered, including whether the SJC might apply the Hot Potato doctrine to situations where attorneys end one client relationship for the purpose of engaging a new client adverse to the former client. For now, what is clear from Abrano is that Massachusetts attorneys must be mindful of and responsibly fulfill their duty of loyalty and professional conduct obligations when commencing and terminating client relationships.
Paul Lannon is a litigation partner at Holland & Knight LLP and Co-Chair of the Ethics Committee of the Boston Bar Association.
Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.
In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 (2016), the Supreme Judicial Court (“SJC”) held, inter alia, that triable issues of fact existed as to whether a law firm’s legitimate, nondiscriminatory reasons for demoting and then terminating a female attorney were a pretext for gender discrimination. While the Court followed well-established precedent in applying the burden-shifting analysis to reach its conclusion, the evidence it relied upon ultimately may provide employee-plaintiffs who lack direct evidence of discrimination with expanding options to demonstrate pretext in order to survive summary judgment.
Verdrager v. Mintz, Levin, et al.
The plaintiff, Kamee Verdrager, was hired by Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo, P.C., (“firm”) in June 2004. Less than a month into her employment, she alleged that a male member of the firm made several sexually-charged comments to her — which she reported to human resources, the managing director, and the attorney managing her group. The firm investigated her claims and found no evidence of gender-based discrimination. Subsequent to lodging her complaint, Verdrager received several mixed performance reviews.
After returning from maternity leave in November 2006, Verdrager received two negative reviews and, in February 2007, the senior attorneys in her group sought to terminate her employment. However, the firm’s chairman instead decided to demote Verdrager by “setting her back” two years in seniority — with a corresponding salary reduction — thereby allowing the firm additional time to determine her eligibility for membership. In response, Verdrager retained counsel and filed an internal complaint alleging that the decision was the result of gender discrimination. The firm’s investigation did not substantiate her claims.
Later that spring, and approximately six times thereafter while accessing the firm’s document management system (DeskSite), Verdrager searched for and discovered dozens of internal documents related to her case which she forwarded to her personal email account.
After receiving five positive evaluations from April to October 2007, Verdrager filed a Charge of Discrimination at the Massachusetts Commission Against Discrimination (“MCAD”) in December 2007, alleging that the step-back decision was discriminatory.
In November 2008, during a national economic slowdown, several associates, including Verdrager, were selected for layoff. While the firm offered to settle her MCAD claim if she accepted the layoff, Verdrager refused. Later that same day, she met with and showed a member of the firm one of the documents she accessed from DeskSite. The firm subsequently discovered Verdrager’s previous DeskSite searches and terminated her as a result. (The use of self-help is discussed in another article in this edition).
Verdrager filed a second charge at the MCAD alleging that the step-back decision and her termination were the result of gender discrimination and retaliation for her internal complaint and previous MCAD complaint. After the case was filed in Superior Court, the defendants moved for summary judgment, which was granted. Verdrager petitioned for direct appellate review to the SJC.
McDonnell Douglas Burden-Shifting Analysis
To survive summary judgment, employee-plaintiffs must demonstrate that a “reasonable jury” could find: (1) that the plaintiff is a member of a protected class, (2) that the plaintiff suffered an adverse employment action (e.g., demotion or termination), (3) discriminatory animus on the part of employer, and (4) causation. Like most discrimination cases, the Court focused on the last two elements.
As the Court explained, while employees are rarely equipped with direct evidence demonstrating discriminatory animus and causation, “they may survive a motion for summary judgment by producing ‘indirect or circumstantial evidence [of these elements] using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).’” Verdrager, 474 Mass. at 396 (citation omitted). Having found the first two stages were satisfied – i.e., Verdrager demonstrated a prima facie case of discrimination (member of a protected class, performed her job at an acceptable level, suffered an adverse employment action), and defendants articulated a legitimate nondiscriminatory reason for her termination (mixed performance reviews, certain partners not willing to work with her, low utilization on a high billing rate, and her engaging in self-help), id. at 398 — the SJC turned its attention to the final stage, which requires that the plaintiff produce evidence that the employer’s justification for the adverse action was a pretext.
Lowered Burden of Production to Demonstrate Pretext?
At the outset, the Court reiterated that Massachusetts is a “pretext-only jurisdiction,” holding that an employee can show that an employer’s nondiscriminatory reasons given for its actions were not the real reasons, “even if that evidence does not show directly that the true reasons were, in fact, discriminatory.” Id. at 397, citing Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). While the Court looked at several “traditional” examples of indirect evidence (e.g., similarly situated male employees being treated more favorably), the Court relied upon other indirect evidence in finding that the reasons given for the adverse job action may have been pretextual.
Significantly, the Court considered evidence from a 2005 report, which was completed by a consulting firm in the wake of an earlier discrimination suit, unrelated to the present case. The report found that “[m]any female [attorneys] … believe it is more difficult for women than men at Mintz[,]” id. at 400-01, and that some of the members may be inherently biased against women. The Court held that this could be considered evidence of the employer’s “general practice and policies” concerning members of the protected class, and supported Verdrager’s contention that the firm’s proffered reasons for her termination were pretextual. Id. at 400 (quotations omitted). By relying on generalized complaints about the attitude of the firm towards women, the Court made it virtually impossible for the firm win on summary judgment, since there is no feasible way to deny a perceived bias without creating a disputed material fact.
The Court also found that “a reasonable jury could interpret a number of the [criticisms made by] the plaintiff’s evaluators and supervisors as reflecting stereotypical thinking…categorizing people on the basis of broad generalizations,” id., at 399-400 (citations and quotations omitted), and that those statements, when considered with other evidence, “may lend support to the contention that the adverse employment action was made on an impermissible basis.” Id. at 400 (quotations omitted). For example, the Court held that comments related to Verdrager taking vacation and her not consistently being in the office “could be understood to reflect a stereotypical view of women as not committed to their work because of family responsibilities[,]” id. at 400, despite the comments themselves being completely gender-neutral.
While lower courts ultimately will decide how much weight to apply to perceived “stereotypical thinking” about protected classes, because those stereotypes are based upon subjective views historically held by others, this particular factor creates a type of pretext evidence that is likely to be more difficult for employers to rebut through summary judgment.
In sum, although the Court followed longstanding precedent in applying the McDonnell Douglas test, the specific factors it used to determine pretext arguably may lower the threshold for plaintiffs in meeting their burden moving forward.
Damien M. DiGiovanni is an associate at Morgan, Brown & Joy LLP where his practice focuses exclusively on management-side labor and employment matters. He is also a member of the Labor and Employment Law Section and the College and University Law Section of the Boston Bar Association.