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.
Verdrager v. Mintz Levin: The SJC Establishes Standards for Protected Self-Help Discovery in Aid of Anti-Discrimination Claims in MassachusettsPosted: August 24, 2016
In Verdrager v. Mintz Levin, 474 Mass. 382 (2016), the Supreme Judicial Court answered a question of first impression under Massachusetts law: Do the anti-retaliation provisions of state anti-discrimination law protect an employee who accesses her employer’s documents to support her employment discrimination claim? The SJC held that, under certain circumstances, such activity may be “protected,” thereby precluding an employer from taking any adverse employment action based on that activity. The decision examined the interplay between “self-help discovery,” or searches of employer materials outside the formal litigation discovery process, and the protections of the Commonwealth’s chief anti-bias statute, G.L. c. 151B, which bars retaliation against plaintiffs who engage in “protected activity.” G.L. c. 151B, §4(4). The SJC articulated the standards to be applied in determining whether employee acts of self-help discovery are protected, and specified limits on that protection.
Although this was a question of first impression in Massachusetts, in deciding that “self-help” discovery in a c. 151B case may be protected activity, the Court was not writing on a blank slate. Rather, its decision drew upon the sizeable case law on this issue that courts around the country have developed. Indeed, the multi-factor test for protected activity that the SJC has now adopted was expressly derived from a leading New Jersey case, Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 204 N.J. 239 (2010). It is likely that Massachusetts courts will look to decisions from other jurisdictions in applying the new Massachusetts standards.
Consistently with the courts that have confronted this issue and its own jurisprudence on protected activity under c. 151B, see, e.g., Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000), the SJC in Verdrager held that self-help discovery “may in certain circumstances constitute protected activity under the statute, but only if the employee’s actions are reasonable in the totality of the circumstances.” But the SJC placed an important limit on this holding, namely that only documents that would be subject to formal discovery may be subject to protected self-help discovery, although that can include privileged documents. Finally, the Court noted that the determination whether the self-help discovery at issue was reasonable is to be made as a matter of law by the court, not by the jury.
Whether an employee’s self-help discovery was reasonable requires a fact-based determination. The SJC held that, “without limiting the considerations that additionally may be relevant in individual cases, the seven nuanced factors in Quinlan should be taken into account in any such analysis.” The Quinlan factors as adopted by the SJC are: (1) “how the employee came to have possession of, or access to, the document;” (2) a balancing of the “‘relevance’ of the seized documents to the employee’s legal action against the disruption caused by the seizure ‘to the employer’s ordinary business;”’ (3) “the strength of the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery;” (4) what the employee did with the document, or who the employee showed it to; (5) “the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential;” (6) “whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated” and “whether the employer has routinely enforced that policy;” and (7) “the broad remedial purposes the Legislature has advanced through . . . G.L. 151B” and “the decision’s effect on ‘the balance of legitimate rights of both employers and employees.’” The SJC, again adopting the Quinlan approach, noted that this last factor is “‘a supplement’ to the other factors, and plays a decisive role only in the ‘close case’ in which it would be appropriate for these broader considerations to ‘tip the balance.’”
Of particular note for lawyers, the SJC held that self-help discovery protections apply equally to attorney-employees, such as the Verdrager plaintiff, and to documents that may be attorney-client privileged. The SJC focused on the importance of ensuring that attorney-employees have the same opportunity as other employees to show documents to their own lawyers in order to obtain legal advice.
Verdrager clearly is a victory for employees’ rights in that it recognizes that employees who engage in self-help discovery in support of discrimination claims may be protected from adverse employment action. The decision, however, sounded several cautionary notes. First, the SJC limited its holding, and the application of the Quinlan factors, to claims under G.L. c. 151B, expressing no opinion on self-help discovery unrelated to such claims. Second, because the decision protects only self-help discovery found to be “reasonable in the totality of the circumstances,” the SJC warned that employees who engage in self-help discovery “even under the best of circumstances . . . run a significant risk that the conduct in which they engage will not be found . . . [ultimately] to fall within the protections of the statute.”
Finally, the SJC envisioned that, in deciding whether self-help discovery in a particular case was reasonable, a court will separately analyze each document or type of document accessed. As the SJC stated, “[t]he application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not.” In such a case “the resolution of the claim of retaliation likely would entail a determination whether the employee’s unreasonable and unprotected acts, standing alone, would have induced [the employer] to make the same [adverse employment] decision.”
In sum, Verdrager now provides protection for reasonable acts of employee self-help discovery. Employers will need to proceed very cautiously before taking adverse action against employees who acquire internal documents, even confidential ones, in the course of pursuing discrimination claims. But discrimination plaintiffs, too, will need to consider carefully the factors articulated by the Court, and to judge carefully what acts of self-discovery will survive the future application of what we can now cal the seven-factor Verdrager test.
Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.
Ellen J. Messing is a partner in the Boston firm of Messing, Rudavsky & Weliky, P.C., which concentrates its practice in representing employees in labor and employment litigation, including wrongful termination, discrimination, contract, sexual harassment, and public employee matters.
The state’s responsibility to confront climate change is now the subject of Massachusetts case law. In a landmark decision interpreting the state’s Global Warming Solutions Act (“GWSA”), Kain v. Department of Environmental Protection, 474 Mass. 278 (2016), the Supreme Judicial Court ruled that the Department of Environmental Protection (“DEP”) must impose mandatory “volumetric limits” on multiple sources of greenhouse gas emissions – meaning limits on the actual amount of greenhouse gases emitted by those sources – and that those limits must decline on an annual basis. The decision could have far-reaching implications for how the state regulates emissions in many sectors of the economy, with the SJC warning that the “act makes plain that the Commonwealth must reduce emissions and, in doing so, may, in some instances, elevate environmental goals over other considerations.” 474 Mass. at 292.
The GWSA was enacted in 2008, against the backdrop of what the SJC characterized as the “emerging consensus … that climate change is attributable to increased emissions, … [and] that national and international efforts to reduce those emissions are inadequate.” 474 Mass. at 281. Among other provisions, the GWSA required DEP to maintain an inventory of greenhouse gas (“GHG”) emissions in the state and to determine the statewide GHG emissions level as of 1990.
The GWSA also required the state to adopt two types of declining GHG emission limits. One relates to total emissions from all sources, while the other relates to individual sources. First, the Executive Office of Energy and Environmental Affairs (the “Secretary”) was required to adopt limits on the total amount of GHG emissions from all sources for 2020, 2030, 2040 and 2050, with the 2050 limit reducing overall GHG emissions in the Commonwealth by 80 percent from the 1990 level. Second, the GWSA required DEP to adopt annual declining limits on individual sources of GHG emissions, in addition to the end-of-decade limits, specifically by “establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” This latter provision, codified at chapter 21N, § 3(d), led to the controversy that was decided in Kain.
DEP agreed that the end-of-decade limits were legally binding caps for statewide GHG emissions. However, with regard to Section 3(d)’s “declining annual aggregate emission limits” for sources of GHG emissions, DEP took the position these were aspirational “targets,” not binding caps, citing the statute’s reference to “desired” levels. Alternatively, DEP contended that several existing regulatory programs fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and that the agency need not adopt new regulations to comply with the law.
When DEP failed to adopt any new regulations on sources of GHG emissions pursuant to Section 3(d), four teenagers, the Conservation Law Foundation, and the Mass Energy Consumers Alliance sued DEP to compel it to adopt binding caps on sources of GHG emissions that declined annually. (The teenagers, two from Boston and two from Wellesley, were among scores of youth who, concerned about the impact of climate change on their future, had unsuccessfully petitioned DEP to adopt new Section 3(d) rules in 2012.) On cross-motions for judgment on the pleadings, the Superior Court ruled in favor of DEP, on the grounds that the three regulatory schemes cited by DEP fulfilled Section 3(d)’s requirements. After granting direct appellate review, the SJC reversed.
The SJC Decision
At the outset, the SJC acknowledged that DEP has wide discretion in establishing the scope of its authority, but stated that deference to DEP’s interpretation of Section 3(d) “would tend to undermine the [GWSA]’s central purpose of reducing emissions in the Commonwealth.” Id. at 287.
The Court first rejected DEP’s argument that Section 3(d) required only aspirational “targets” for limiting sources of GHG emissions, not binding caps. The Court observed that when the GWSA referred to “limits” elsewhere in the statute, DEP conceded that “limits” referred to binding caps. The Court refused to give the word “limit” a different meaning with regard to the annual limits on sources of emissions in Section 3(d). 474 Mass. at 288.
The Court also pointedly said that “a regulation, by definition, is not aspirational” and expressed doubt that the Legislature would require an agency to promulgate regulations that were merely aspirational. Finally, while DEP had stressed that the term “desired level” necessarily implied that “limits” on emissions were aspirational, the Court disagreed. The Court held that, in the context of the statute’s goal of reducing emissions in the Commonwealth, the term “desired level” meant the level of emissions from a source or category of sources that would be “suitable” to achieve the statewide GHG emissions limits. 474 Mass. at 289.
The SJC next turned to the three regulatory schemes that DEP argued fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and held that none satisfied the statute’s mandate. The first regulatory scheme limits the rate of leakage of a powerful greenhouse gas from certain electrical switch gear, with the intent of gradually reducing the leakage rate from the equipment. The Court held that this regulatory scheme did not satisfy Section 3(d) because it established only a declining rate of emissions from sources, not a cap on the actual volume of emissions, and the amount of leaked emissions therefore could increase simply by the installation of additional equipment in a facility or in the state as a whole. 474 Mass. at 295.
As to the second regulatory scheme, the “low emission vehicle” (“LEV”) program, which also “regulates through the imposition of rates, rather than actual caps on emissions,” the SJC held it did not comply with Section 3(d)’s requirement that DEP promulgate declining volumetric emissions limits. 474 Mass. at 299. The LEV program regulates emissions based on the average emissions of each auto manufacturer’s fleet of cars. Thus, like the regulations regarding switch gear emissions, although the average rate of emissions from a vehicle fleet may decline, the total number of vehicles on the road from a manufacturer’s fleet may increase and thus the volume of emissions from those sources may increase as well. Id.
Here and elsewhere, DEP argued that it should be free to use a rate rate-based mechanism rather than a volume-based cap on emissions, because using a cap would potentially limit the actual number of emission sources. Disagreeing, the Court said the GWSA required that new or additional GHG sources must comply with a regulatory scheme that required the reduction of the actual volume of emissions. 474 Mass. at 295.
Finally, the SJC turned to the Regional Greenhouse Gas Initiative (“RGGI”), a regional cap and trade system for carbon dioxide emitted by power plants, pursuant to which the overall cap on emissions from plants in Massachusetts and eight other states is reduced by 2.5 percent each year. Although RGGI imposes an overall cap on carbon dioxide emissions that declines annually through 2020, the SJC held that it nevertheless did not fulfill Section 3(d)’s requirements. The Court observed that RGGI was established by a separate statute, and that the GWSA elsewhere created a separate process by which emission levels associated with the electric sector are set. Id. at 297. These factors, said the Court, indicated the Legislature did not intend for the RGGI program to be part of the Section 3(d) regulations. In addition, the Court noted that under RGGI, a Massachusetts power plant could purchase allowances from another state that would permit the Massachusetts plant to increase emissions. Accordingly, RGGI does not actually require carbon dioxide emissions from power plants located in the Commonwealth to decrease annually.
In ruling that none of the three programs proffered by DEP satisfies Section 3(d)’s requirements, the SJC acknowledged that these schemes may play important roles in achieving greenhouse gas reductions. But the SJC also repeatedly said that, because these regulatory schemes do not actually require annual decreases in the volume of GHG emissions, they simply do not require what Section 3(d) mandates.
The full import of Kain remains to be seen. At a minimum, it requires DEP to establish annual declining volumetric limits for those sources, or categories of sources, of emissions in the GHG inventory, which will help the state achieve its 2020 and 2050 limits. Designing programs to achieve those limits is another matter. Moreover, the Section 3(d) regulations were supposed to take effect no later than January 1, 2013, and to sunset on December 31, 2020. The work at hand now concerns what can best be achieved in the time that remains.
Dylan Sanders practices environmental law at Sugarman, Rogers, Barshak & Cohen, P.C., and, together with his colleague Phelps Turner, represented the four teenage plaintiffs in the Kain case.
Skawski v. Greenfield Investors Prop. Dev. LLC Clarifies Which Courts Have Jurisdiction to Hear Appeals of Major Development PermitsPosted: August 24, 2016
In February 2016 the Supreme Judicial Court decided Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580 (2016), and concluded that, in establishing the permit session of the Land Court, “the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court.” Id. at 581. Therefore, Skawski ruled that the Housing Court lacked jurisdiction over challenges to a special permit granted for a major developments. That decision was consistent with both the Appeals Court’s rescript decision in Skawski, 87 Mass. App. Ct. 903 (2015), and the Appeals Court’s earlier decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871 (2015).
G.L. c. 185, § 3A (“Section 3A”) gave rise to each of these cases. That statute, which was enacted in 2006, established the permit session of the Land Court and granted it “original jurisdiction, concurrently with the superior court department, over civil actions in whole or part … arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property” and other similar projects with 25 or more dwelling units and/or involving the construction or alteration of 25,000 square feet or more of gross floor area (which Skaswki termed “major developments”).
Skawski considered an abutter’s challenge to a special permit granted by the Greenfield Planning Board for construction of a retail development of approximately 135,000 square feet. As was then common in Hampden County, the appeal was filed in Housing Court.
The Chief Justice of the Trial Court denied a motion to transfer the case to the permit session of the Land Court. Later, the Chief Justice of the Housing Court failed to act on a request by the trial judge that the case be transferred administratively to the Superior Court Department and that she (the Housing Court trial judge) be cross-designated as a Superior Court judge.
Faced with a pending motion to dismiss for lack of subject matter jurisdiction, the Housing Court judge withdrew her request and denied the motion to transfer the case. She then reported her ruling to the Appeals Court. Following the Appeals Court’s reversal of the trial judge’s order, the SJC granted the plaintiff’s application for further appellate review.
The issue confronted by the SJC was how to square Section 3A, which established the permit session, with G.L. c. 40A, § 17 (“Section 17”), which “gave subject matter jurisdiction in all permit appeals to the Housing Court, along with the Land Court, Superior Court, and District Court, and G.L. c. 185C, § 20, [which] gave any party the power to transfer such an appeal to the Housing Court if it were not initially filed there.” Skawski, 473 Mass. at 585. Chief Justice Gants engaged in a lengthy analysis of the language, context and history of Section 3A to reach the conclusion that the Housing Court was without subject matter jurisdiction to hear the appeal.
Skawski first acknowledged that Section 3A did not expressly repeal Section 17. The SJC next turned to the legislative purpose of Section 3A to determine if it repealed Section 17 by clear implication. The SJC emphasized that Section 3A was but one section of St. 2006, c. 205 (the “act”), “whose purpose is clear from its title, ‘An Act relative to streamlining and expediting the permitting process in the commonwealth,’ and its preamble—‘to forthwith expedite the permitting process in the commonwealth.’” Skawski, 473 Mass. at 587. “From the text of the act and its legislative history, it is plain that the Legislature sought to reduce the costs and delays of the permitting process required to conduct business and develop property.” Id. (citations omitted). The SJC also observed that the “comprehensive scope of the act further suggests that the Legislature intended to be equally comprehensive in declaring which court departments would have original jurisdiction to adjudicate major development permit appeals.” Id. at 588.
In light of the legislative purpose, the SJC concluded that, “[b]y specifying that the Superior Court Department shared concurrent jurisdiction with the permit session of the Land Court, and not also specifying any other court department as having concurrent jurisdiction, the Legislature impliedly reflected its intent that these major development permit appeals be adjudicated only by these two courts.” Id. at 587-88 (emphasis added; citations omitted).
The SJC found further support for this conclusion in the fact that the “establishment of the permit session of the Land Court to hear major development permit appeals was an integral part of the act’s over-all plan to expedite the permitting process because § 3A establishes demanding time frames for the final disposition of such appeals in the permit session.” In addition, Section 3A “allows any party, with the approval of the Chief Justice of the Trial Court, to transfer the appeal to the permit session…. But, if the Housing Court continued to have jurisdiction over these cases, any party could invoke G.L. c. 185C, § 20, and ensure that the final disposition of the appeal would be decided, not by the permit session, but by the Housing Court.” Id. at 588-89. Finally, the SJC found that the legislative history further supported its decision. Id. at 589-591.
The SJC concluded
that the clear implication of these amendments is that the Legislature intended that major development permit appeals be adjudicated in the permit session and, if they could not be, either because the Chief Justice of the Trial Court denied the motion to transfer the case to that session or because a party claimed a right to a jury trial, that they be adjudicated in the Superior Court Department …. In short, … the clear implication of § 3A is that the Legislature wanted all major development permit appeals to be adjudicated either in the permit session of the Land Court or in the Superior Court and therefore limited jurisdiction over these cases to these courts.
Id. at 590-91 (footnote omitted).
Interestingly, the SJC did not order dismissal of the case for lack of subject matter jurisdiction. Rather, it remanded the case to Housing Court to give the parties the opportunity to apply to the Chief Justice of the Trial Court for a transfer to the permit session of the Land Court or to the Superior Court.
Skawski gives effect to the Legislature’s intent to expedite appeals concerning major projects through use of the newly established permit session of the Land Court, staffed by judges with an expertise in land use matters. Practitioners should take note that interdepartmental assignments of Housing Court judges to hear major development permit appeals are now impossible because the Housing Court is without jurisdiction over such appeals, notwithstanding the language of G.L. c. 40A, § 17 and G.L. c. 185C, § 20.
Gordon Orloff is a litigator at Rackemann, Sawyer & Brewster in Boston, where he focuses on resolving real estate, land use, probate and business disputes. Mr. Orloff is a regular contributor to Massachusetts Land Use Monitor, a blog that reports on new developments in real estate and land use law.