Practice Tips for Navigating the Disciplinary Investigation Process Before the Office of Bar Counsel

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by Heather LaVigne

Practice Tips

Introduction

Massachusetts attorneys may find themselves involved in disciplinary investigations conducted by the Office of Bar Counsel, and disciplinary proceedings before the Board of Bar Overseers (“BBO”), either as the subject of the proceedings, or as counsel to a lawyer facing misconduct allegations. This article provides an overview and practice tips for navigating disciplinary investigation by bar counsel. It is not a substitute for reading the Rules of the Board of Bar Overseers and Supreme Judicial Court Rules 4:01 and 2:23 governing bar discipline procedures. Additionally, practitioners should consult the BBO’s website, which contains the BBO’s policies and guidance relating to bar discipline; the Board’s treatise, “Massachusetts Bar Discipline, History, Practice, and Procedure”; and information and orders relating to bar discipline practice in light of the COVID-19 pandemic.

The Board of Bar Overseers and Office of Bar Counsel

The BBO has a volunteer board and a full-time staff. It is charged with administering the bar disciplinary system and the attorney registration system. The BBO appoints hearing officers to conduct disciplinary proceedings and to make recommendations on discipline to the BBO. The BBO’s Office of General Counsel advises and assists the BBO and hearing officers throughout the process.

The Office of Bar Counsel is charged with investigating allegations of attorney misconduct and, if warranted, prosecuting disciplinary charges before the BBO.  Within bar counsel’s office, the Attorney Consumer Assistance Program (“ACAP”) serves as the office’s intake unit. In carrying out its duties, ACAP may be able to resolve minor issues or may refer the complaint to be opened for formal investigation.

Representation by Counsel in Bar Discipline Proceedings

While there is no right to counsel in bar discipline proceedings, it is recommended that attorneys facing allegations of misconduct exercise their ability to choose to be represented by counsel.  Attorneys who are under investigation are referred to as “respondents” and their counsel as “respondent’s counsel.” For attorneys who cannot afford counsel, the BBO’s General Counsel can assist in locating pro bono representation.  Counsel must be licensed to practice law in Massachusetts to appear in a bar discipline proceeding. In some situations, a lawyer licensed in another jurisdiction may request permission to appear. 

Investigation by the Office of Bar Counsel

The Complaint and Response

It is important that attorneys are responsive, cooperative, and forthcoming at all stages of bar counsel’s investigation.  The disciplinary process begins when bar counsel first receives information about alleged attorney misconduct. Typically, information about alleged misconduct comes from:

  • A client, opposing party, or lawyer who contacts the office by phone or in writing;
  • Banks who report dishonored checks drawn on IOLTA accounts;
  • The BBO registration department, which reports attorneys who pay registration fees from an IOLTA account;
  • Courts and tribunals in any jurisdiction who may report concerns about attorneys appearing before them in professional and personal capacities; and
  • Other disciplinary authorities.

Bar counsel may also open an investigation based on information from any source, which may include newspapers, court decisions, and internet postings that come to bar counsel’s attention.

Many concerns about attorney conduct, such as a failure to return a phone call or a delay in providing the client their file, can be resolved by ACAP without opening a formal investigation.  It is important that attorneys who receive calls from ACAP staff respond to those calls, as this may resolve the issue to the client’s satisfaction and avoid the need to open a formal investigation. For serious allegations, the matter is assigned to an assistant bar counsel to begin a formal investigation. The purpose of the investigation is to gather facts to determine whether the allegations are supported and, if so, whether formal disciplinary charges are warranted. 

The assistant bar counsel informs the respondent of the complaint, in writing, at the primary address listed on the respondent’s annual registration statement.  As a result of remote work protocols due to the COVID-19 pandemic, this notice may be sent to the respondent’s registered email address.  It is, therefore, important that attorneys keep their email and mailing addresses up to date with the BBO registration department and check those mailboxes regularly.  If there is a written complaint or some other writing (such as a dishonored check notice), that writing is typically provided to the respondent at this time. If the complaint is brought by an individual, that person is typically referred to as the “complainant.”

Respondents may decide to hire an attorney to prepare the response.  While there is no formal process for entering an appearance, respondents’ attorneys should alert bar counsel that they represent the respondent in the matter. An email to the assistant bar counsel handling the case suffices.

The respondent must respond to the complaint in writing, within 20 days.

Key Tip: It is imperative that the response be provided in a timely manner, as failure to respond itself constitutes misconduct that may result in the issuance of a subpoena or the administrative suspension of a respondent’s license to practice law. Contact the assistant bar counsel promptly if an extension is required.  Except in exigent circumstances, the first request for a reasonable extension typically will be granted. 

In the letter to the respondent, bar counsel will ask the respondent to address the allegations in the attached complaint and may also ask the respondent to address specific issues and provide certain documents such as a fee agreement, IOLTA records, billing statements, or an entire client file. 

The response should provide a narrative explanation of the respondent’s version of events. It must not simply admit or deny allegations. Further, the respondent should not make inflammatory statements about the complainant in the response. The focus of the response should be to explain the matter to bar counsel, and to correct any inaccuracies that the respondent believes exist in the complaint. 

While the respondent should provide whatever information he or she thinks will aid bar counsel in understanding the matter, the respondent should pay attention to the specific requests made by bar counsel as these will often indicate the main areas of concern. 

Key Tip: Respondents must provide the documentation bar counsel specifically requests.  Respondents should also provide any additional documentation that supports their version of events. If the respondent is unclear as to what documentation bar counsel requests, respondent (or respondent’s counsel if represented) should contact the assistant bar counsel for clarification. Similarly, if the respondent does not have or is working on obtaining a document, the respondent should indicate that in the response.

The respondent should organize the response and supporting documentation with exhibit designations or Bates numbers and refer to those designations in the narrative response. 

In the response, the respondent may suggest a certain outcome, such as closing the file. In cases of more serious misconduct, the respondent’s counsel may advise the respondent that the investigation is likely to result in a finding of misconduct and suggest a resolution in the answer.

The answer typically will be provided to the complainant, in full, for comment. Therefore, if the respondent provides documents that he or she believes should be withheld from the complainant, the respondent must specifically and clearly make such a request. At least initially, bar counsel usually will agree to withhold documents such as personal medical information or bank statements but will not often agree to withhold an entire response. The complainant’s comments typically are not provided to the respondent unless the assistant bar counsel believes they warrant an additional response.

Bar Counsel’s Additional Investigatory Options

Bar counsel may also obtain information from other sources. These sources include, but are not limited to, publicly available court filings, information obtainable by a Freedom of Information Act or Public Records Law request, interviews of potential witnesses, and information from banks and other entities, pursuant to a subpoena approved by a reviewing member of the Board.  A respondent should not, however, decline to produce a requested document on the grounds that bar counsel can locate it elsewhere. During the investigation, the respondent is not entitled to copies of the documents and information bar counsel obtains. At this stage, the respondent has no right to issue discovery or request the issuance of subpoenas but will be permitted discovery if formal charges are brought. 

As part of the investigation, bar counsel may also decide to take the respondent’s statement under oath. A statement under oath is similar to a deposition. The respondent will be sworn in and the assistant bar counsel will likely show the respondent exhibits and ask questions about them. The statement will be recorded, and if warranted, may later be transcribed and sent to the respondent. The respondent may choose to be represented by counsel at a statement under oath.  The statement under oath may be scheduled with the participation of the respondent or by subpoena in the case of non-cooperating respondents.

Key Tip:  If a subpoena to appear has not already been issued, the failure to appear can result in a subpoena requiring the respondent to appear on a new date. Especially in circumstances where a subpoena to appear has already been issued, a respondent’s failure to appear is likely to result in the immediate administrative suspension of the respondent’s license to practice law without hearing. Failure to be truthful during a statement under oath may be grounds for additional discipline beyond what is warranted for the underlying misconduct. Additionally, if there is a hearing in the matter, the respondent’s statement under oath may be used as substantive evidence and to impeach the credibility of the respondent’s hearing testimony. 

Depending on the circumstances, the assistant bar counsel may be able to discuss possible resolutions to the investigation with the respondent or respondent’s counsel after this meeting.

Resolutions Without Public Discipline

Once bar counsel has completed the investigation, there are several possible resolutions short of disciplinary charges. Bar counsel may determine that the file should be closed with no disciplinary action. In some cases, bar counsel may close a case with a warning concerning conduct that may not warrant disciplinary charges. This is also considered closed without disciplinary action. For minor misconduct that can be remediated through education or counseling, bar counsel may offer to enter into a diversion agreement with the respondent. Pursuant to the diversion agreement, the respondent will pledge to engage in certain remedial efforts which may include mental health counseling, anger management counseling, career/practice assistance, trust account training, continuing legal education, and ethics courses. Bar counsel provides the diversion agreement to a reviewing Board member for approval. If approved, the respondent must complete the terms of the diversion agreement or be subject to discipline.

Key Tip: Even before the resolution stage, respondents’ counsel may serve their clients well by suggesting they contact Lawyers Concerned for Lawyers and the Law Office Management Assistance Project when the situation so warrants.

Bar counsel may also propose to resolve the file by admonition, which is considered private discipline. An admonition may be appropriate when the misconduct did not cause harm. An admonition must be approved by a reviewing Board member. If approved, the complainant is informed that the respondent has been admonished, but it is otherwise confidential. If bar counsel believes an admonition is warranted, but the respondent does not agree, bar counsel will present the admonition to the reviewing Board member. If approved, the respondent will be notified that he or she has 14 days to request a hearing on the admonition. The hearing is held on an expedited basis before a special hearing officer and remains confidential.

Agreements to Public Discipline

For more serious misconduct, bar counsel may offer to stipulate to public discipline in the form of a public reprimand, a suspension, or a disbarment. If the respondent agrees, the stipulation must be presented to the BBO for approval. Included with the stipulation are bar counsel’s petition for discipline explaining the charges, the respondent’s answer, and a stipulation to the facts and rule violations. 

Stipulations prior to the filing of a petition for discipline is often preferable to many respondents because it provides the respondent with some input as to what becomes part of the public disciplinary record. For example, bar counsel may agree to omit some disputed issues from a petition for discipline filed with a stipulation that would otherwise appear in a petition for discipline filed in a contested disciplinary proceeding. A respondent, however, should not expect bar counsel to agree to a sanction that is less severe than the typical sanction for the misconduct in the stipulation. 

Key tip: If a respondent has evidence of mitigating circumstances that he or she believes warrant consideration, the respondent should provide that evidence to bar counsel as early as possible, and certainly by the time settlement discussions begin.

Once a stipulation is submitted to the BBO, the BBO can accept or reject the stipulation. If the BBO rejects the stipulation, it will notify the parties and provide 14 days to submit briefs in support of the stipulation. In case the BBO does not accept the stipulation, respondent’s counsel should consider whether to reserve the right to dispute the facts and rule violations at a future hearing or whether the respondent and bar counsel will be bound to the facts and rule violations in the stipulation. Such language must be in the stipulation documents presented to the BBO.

Additionally, a respondent under investigation cannot simply resign in order to avoid the disciplinary process. A respondent may decide, however, to waive hearing and agree to a resignation as a disciplinary sanction for misconduct warranting a suspension or a resignation and disbarment for misconduct warranting disbarment. Further, a respondent who can no longer practice due to a physical or mental impairment may consider discussing disability inactive status with bar counsel.

If the parties cannot come to an agreement on discipline, and bar counsel has determined that public discipline is warranted, bar counsel will initiate public disciplinary proceedings. Public proceedings before the BBO will be the subject of a forthcoming Practice Tips article.

Conclusion

Throughout any disciplinary investigation, respondents would do well to remember that the mission of the Office of Bar Counsel is to protect the public from unethical conduct by attorneys and to preserve and enhance the integrity and high standards of the bar.  As a result, cooperation in the investigative process is key, and failing to respond appropriately to bar counsel’s requests, and/or to participate in each stage of the investigative process, can only result in additional adverse action.  Respondents should also review their malpractice insurance policies, as many provide at least some coverage for representation in disciplinary proceeds.  Respondents’ counsel provide a valuable service to respondents by helping them navigate the process, and in negotiating a resolution with bar counsel.

Heather L. LaVigne is an Assistant Bar Counsel with the Office of Bar Counsel of the Massachusetts Board of Bar Overseers.  She previously worked as an administrative hearing officer with the Department of Public Utilities and as a litigation associate at Choate, Hall & Stewart, LLP.  She is a 2006 graduate of Boston College Law School and a 2003 graduate of Clark University.


COVID-19 Vaccinations: Thoughts for Employers

Dick Glovsky_106x126Williams_Kimberly_106x126by Richard D. Glovsky and Kimberly F. Williams

Practice Tips

As the COVID-19 vaccination becomes more readily available, many employers are considering whether to require that employees be vaccinated.  In December 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccination. Under this guidance, employers may implement a mandatory vaccination program or policy. However, before implementing such a policy, employers should give careful consideration to the legal issues that mandatory vaccination raises.

Legal Considerations for A Mandatory Vaccination Policy

If an employer decides to implement a mandatory vaccination policy or program, the following legal considerations should be evaluated.

First, an employer should determine whether to provide the vaccine to its employees itself or through a contracted third party or to require its employees to receive the vaccine from an independent third party such as a pharmacy or health care provider. Employers or their contracted third parties who provide the vaccine to their employers may only ask pre-screening questions that are “job-related and consistent with business necessity.” Employers should look to health care officials to determine the necessary pre-screening questions and delve no deeper than what the medical community advises is necessary. An employer whose pre-screening questions exceed the bounds of what is “job related and consistent with business necessity,” runs the risk of violating the Americans with Disabilities Act’s (“ADA”) prohibition against inquiries that elicit disability-related information. 

In contrast, if an employee receives the employer-required vaccine from an independent third party, the ADA’s “job related and consistent with business necessity restriction” will not apply. 

Second, under the EEOC guidance, an employer who requires vaccinations must allow for disability and religious exemptions. The guidance, consistent with the ADA, requires that employers exempt from mandatory vaccination requirements an employee whose disability (i.e. a physical or mental impairment that substantially limits a major life activity) prevents the employee from safely receiving the vaccine. If an employee claims they cannot safely receive the vaccine due to a disability, the employer must engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation such as working remotely, wearing a face mask, or limiting the employee’s contact with the public. 

Similarly, the guidance, in accordance with Title VII of the Civil Rights ‎Act of 1964 (“Title VII”), requires employers to provide an exemption or other accommodation if receiving the vaccine would implicate an employee’s “sincerely held religious ‎belief.” Proving a “sincerely held religious belief” is a relatively low bar.

In each of these instances, an employer does not need to provide an accommodation if doing so would pose “an undue hardship” on it. Undue hardship may include financial as well as accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the employer’s business. 

Third, an employer who is considering mandating vaccinations should consider liability issues. The current vaccinations have only received Emergency Use Authorization, meaning that individuals who have the opportunity to receive the vaccination also have the right to refuse it. This sets up an inherent conflict between an employer’s mandatory policy and an individual’s right to refuse the vaccine as well as potential liability if the employee should be injured or harmed as a result of receiving the employer-mandated vaccine. Whether Workers’ Compensation laws will cover such injuries remains an open question.

Pros and Cons of a Mandatory Vaccination Policy

In considering whether to implement a mandatory vaccination policy, employers should recognize the pros and cons. One obvious pro is that a vaccinated workforce may be a safer one. It may also help bring employees back to the workplace. Working in the office or other business locations may help increase productivity and profitability and provide more certainty to workforce availability. It may also allow employers to avoid certain COVID-related risks and liabilities.

On the other hand, many people are unwilling or hesitant to receive the vaccine. Thus, a mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Additionally, vaccine availability and eligibility should be considered.  It may not make practical sense to require that employees be vaccinated if certain employees are not yet eligible to receive the vaccine or the vaccine is in short supply.    

Pros and Cons of a Discretionary Vaccination Policy

Nothing compels employers to mandate vaccinations. Many employers have adopted policies and programs to entice employees to be vaccinated. This “carrot” approach has included paid time off (“PTO”) for time taken to be vaccinated and for absences due to the side effects of a vaccine or for assisting family members to be vaccinated, gift cards, free Lyft rides to vaccination centers, and cash awards. As of the writing of this article, the EEOC is considering providing parameters for such incentives.

Further, a discretionary vaccine policy may result in a more content workforce and avoids ADA and Title VII issues. It also eliminates the specter of liability from an adverse reaction to a vaccine or its withdrawal from the marketplace, and it diminishes the administrative burdens necessitated by a mandatory policy, especially if the employer is administering its own vaccine program.

On the other hand, a discretionary policy may create a less safe work environment and may result in lesser emphasis placed on employee presence in the workplace.

What Employers Should Do  

First and foremost, all employers should vigilantly follow guidance from the Centers for Disease Control, EEOC, and other federal, state, and local agencies. They should continue to comply with and reinforce all existing safe workplace protocols.

Employers who decide to require vaccinations should develop, adopt, and provide to their employees the policies and protocols that will govern. They should provide a reasonable period for employees to be vaccinated, keeping eligibility and other factors in mind. At the end of the period by which vaccinations are required, employers should require written evidence of vaccinations having been administered and engage in the interactive process with those employees claiming a disability or religious exemption. Employers will also need to decide whether to terminate all non-vaccinated, non-exempt employees or allow those who refuse to be vaccinated to work (or continue to work) remotely.

Additionally, any employer who is considering a mandatory vaccination program and who contracts with a third-party vendor should consider inserting indemnity and hold harmless clauses into such contracts. Under the Public Readiness and Emergency Preparedness Act, employers are insulated from federal and state tort liability if they are “program planners” of a vaccination program. Program planners include employers who refer the administration of vaccines to third party vendors.

Finally, because not everyone will be vaccinated, and the length of the efficacy of vaccinations is unknown, COVID and its mutations most likely will be with us for quite some time.  Consequently, employers will need to consider these issues for the foreseeable future.

Richard D. Glovsky, Co-Chair of Locke Lord’s Labor and Employment Practice Group, is a Partner in the Firm’s Boston office. He handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims, and is a trusted adviser and general counsel to various companies and their senior executives.

Kimberly Williams is a Partner in Locke Lord’s Dallas office with experience representing employers in matters involving claims of discrimination, harassment, retaliation and wrongful discharge. She provides employment counseling and advice to clients on matters including hiring, firing, and other disciplinary action, wage and hour issues, leave issues and compliance with federal and state laws and regulations.


Creative Planning For The Transfer Of Family Real Estate

by Richard H. Goldman

Practice Tips

The transfer of real estate to children upon the death of the last to die of their parents can lead to unexpected problems for the children.  It is not uncommon for parents’ estate plans to provide that upon the death of the last parent to die, their real estate shall be distributed to their children equally as tenants in common.  However, problems arise when the children cannot agree upon the disposition of the real estate.  This article offers suggestions for provisions to be included in the estate plans of parents so that such disputes can be avoided. 

Right of First Offer

One way of addressing these issues is to include in the parents’ estate plans a “right of first offer,” applicable to each parcel of real estate that is to pass to their children.  A right of first offer is a contract provision that enables one joint owner of property (“Potential Seller”) to offer to sell his or her interest in the property to the other joint owner (“Potential Buyer”) for a price specified by the Potential Seller (“the Specified Price”). 

Within an agreed period of time, to be specified in the estate plans, the Potential Buyer may elect (a) to purchase the Potential Seller’s interest at the Specified Price; or (b) agree that the Potential Seller can sell the Property for a price not less than what would provide the Potential Buyer the amount he or she would have received if the Potential Buyer had sold his or her interest to the Potential Seller for the Specified Price.   

If the Potential Buyer does not timely elect to purchase the Potential Seller’s interest at the Specified Price, or having elected to purchase, does not complete the purchase within the permitted time, then for a subsequent specified period of time, the Potential Seller can try to sell the Property to a third party for a price that would cause the Potential Buyer to receive not less than the Specified Price for his or her interest in the Property.

By way of example: Assume that a husband and wife have two children. They own two homes, one in Massachusetts and the other in Florida, each with a value of $1,000,000.  Their estate plans provide that upon the last of them to die, the balance of the estate, including the two homes, is to be distributed to the two children equally as tenants in common.  

The two children agree that the Massachusetts home will be sold, but one child wants to sell the Florida home and the other child wants to retain it.  The estate plans do not contain any guidance as to how to resolve the situation if the children do not agree on the disposition of the homes.  The children consult their respective attorneys and are advised that either one can commence a partition proceeding which could be expensive and adversarial.

A better solution is for the parents’ estate plans to set forth a right of first offer.  The parents’ estate plans could provide that if the children cannot agree on the disposition of the properties, then within 90 days after the death of the last parent, either child can notify the other in writing that the property should be sold for a price which he or she specifies, in his or her sole discretion, in this example, $1,000,000.  The child who receives the notice then has a specified period of time after the receipt of the notice to elect in writing to buy the interest of the other party for $500,000, and to complete the purchase within the period of time stated in the estate plans.  If the recipient of the notice does not elect to purchase the interest of his or her sibling for $500,000, or to complete the purchase within the applicable time period, the party providing the notice can sell the property to an unrelated third party for not less than $1,000,000 within a time period specified in the estate plans.  If a sale of the property is not completed to a third-party within the agreed time period, either sibling would continue to have the right to utilize the right of first offer in the future. 

Offer to Purchase for at Least Federal Estate Tax Value

There are other alternatives that can achieve the same result as a right of first offer.  The estate planning documents can provide that following the death of the last parent, either child can offer to buy a property owned by the parents for not less than the federal estate tax value of that property.  The estate’s attorney would prepare a purchase and sale agreement at that price.  If only one child is interested in purchasing the property, that child could then submit a written offer to purchase to the estate for the federal estate tax value, accompanied by a check payable to the estate equal to 10% of the purchase price and a signed copy of the purchase and sale agreement. 

If each child would like to purchase the property for not less than the federal estate tax value, each child submits a written offer to the estate with his or her offer, accompanied by a 10% deposit payable to the estate and a signed copy of the purchase and sale agreement.  The child who offers the highest price would be the purchaser of the property at the price offered by him or her. 

If neither child is interested in purchasing the property from the estate for at least the federal estate tax value, the Personal Representative will sell the property on behalf of the estate. 

Right of First Refusal

In some cases, clients have been advised to use a right of first refusal instead of a right of first offer.  While a right of first refusal can lead to the same result as a right of first offer, a right of first refusal brings with it some potential problems.  In a right of first refusal, one of the children could negotiate a sale with a third party but would then have to come back to the other child and give that child the right to purchase the property at the price offered by the third party.  It can be difficult for a seller to deal with a third party if that party knows that the seller cannot complete the sale without first offering the property to the other child at the price offered by the third party.  For this reason, the right of first offer is a better solution than the right of first refusal. 

Conclusion

It is important for lawyers to recognize problems that may arise when family real estate is transferred from parents to their children. The right of first offer is a tool available to estate planning attorneys that can be used to plan for the transfer of real estate from parents to children and minimize any potential conflicts.

Richard Goldman is Senior Counsel at Sullivan & Worcester LLP in Boston. He is an Adjunct Professor at Boston University School of Law and is Vice President of the Wesleyan Lawyers Association.


Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against Discrimination

by Heather E. Hall

Practice Tips

Introduction

Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.

COVID-19

At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.

In early June 2020, the MCAD began the process of phasing staff back into the offices.  At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.

Investigations Division Overview

The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.

Complaints  

Manner of Filing

The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: mcad@mass.gov.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.

Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”

Statute of Limitations

Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.

Information in Complaints 

When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.

Key Tip:  Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.

Pseudonym Complaints

An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).

Withdrawal of a Complaint

Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.

Answers/Position Statements

Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8).   The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.

Position Statement Contents

Full and complete position statements are essential to the MCAD’s investigative process.  Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.

Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”

Rebuttals

“Rebuttals to the position statement are not required, but are strongly encouraged…”   804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.

Key Tip:  Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments.  Do not simply reiterate the facts in the complaint.

Mediation 

The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.

Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.

Investigative Conferences

Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory.  804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.

Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).

Investigative Dispositions

Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.

The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).

Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.

Appeals and Motions to Reconsider 

If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.

In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.

The MCAD is currently conducting hearings on appeals telephonically.

Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.

Conciliation

If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.

Conclusion

We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served.  Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.

Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.


Protecting Trade Secrets During (and After) a Global Pandemic: Practical Tips for Employers

by Russell Beck and Hannah Joseph

Practice Tips

 

The evolution toward a cloud economy has made it easy and often profitable for employees to misappropriate valuable data from their employers. Indeed, pre-pandemic estimates suggested that over 50 percent of employees take – and most of them are willing to use – their employer’s information when leaving a company.[1]

Against this backdrop, COVID-19 unexpectedly caused the world to shut down in early 2020, resulting in mass layoffs, the highest unemployment rates since the Great Depression, and a fundamental and perhaps permanent shift toward a predominately remote workforce.

Together, these factors have created a precarious environment for trade secrets, as well as customer relationships and other legitimate business interests. Employees working from home have more opportunity to convert company information and customers, and some, particularly those facing involuntary unemployment, may feel driven to do so. Moreover, the ongoing crisis has made preliminary injunctive relief (the judicial remedy most often used to protect trade secrets and other legitimate business interests) more elusive, as courts are typically less willing to restrain employees from competitive employment during economic downturns. See, e.g., All Stainless, Inc. v. Colby, 364 Mass. 773, 781 n.2 (1974).

Whether during or after the pandemic, it is vital for companies to have strong measures in place for protecting their trade secrets and other legitimate business interests, rather than to solely rely on after-the-fact litigation. Below are some practical tips for how to do so.

Tips for protecting trade secrets and other legitimate business interests during and after a global pandemic

Know your trade secrets. A remote workforce means that employees are developing, accessing, and using their employer’s trade secrets from home (and elsewhere). Accordingly, understanding the categories, sources, and life cycles of the company’s trade secrets, and the risks of exposure to which such information is most susceptible, is necessary for establishing and implementing policies and practices that are best suited to protect that information during and after the pandemic. Depending on the organization, the analysis will likely need to involve management, human resources, legal, corporate governance, sales, information technology, information management, research and development, manufacturing, and other relevant stakeholders.

Firm up policies and procedures. Once a company has categorized its trade secrets, both existing and under development, it must ensure that its policies and procedures are appropriately designed to protect the information against likely sources of risk. Such policies and procedures, which should be reviewed on a regular basis, are also critical to protecting other legitimate business interests, such as customer goodwill.

Among other things, employers should have policies that establish clear criteria, protocols, and expectations for the access, use, and disclosure of confidential information, including third-party information; working from home; the use of the employer’s devices, systems, and accounts (and, if applicable, the employer’s policies concerning monitoring such devices, systems, and accounts); the use of personal devices; the use of social media accounts, including as they relate to client communications; the use and protection of passwords; and the post-employment return of information and property. In addition, employers should have a policy that instructs employees to report incidents of unauthorized access, use, or disclosure of confidential information, and provides clear instructions for how to make such a report. This list is not comprehensive, and policies are not one-size-fits-all; they must be tailored to meet the unique needs of the employer and be reasonable in the context of the company’s needs, capabilities, and culture.[2]

Employers should also work closely with their remote employees to ensure that the employees’ at-home work environments are secured against both external threats and inadvertent disclosure. For example: home Wi-Fi routers should be secured with strong passwords; passwords, non-guessable meeting IDs, and other security settings should be used for video conference solutions like Zoom; confidential information should not be reviewed where others in the household may see or overhear it; and confidential information should not be left out in the open when the workspace is unattended. Employers should be prepared to run through a comprehensive checklist with their employees to make sure that employees are taking necessary precautions to protect their workspaces.

Finally, the unfortunate reality of increased furloughs and layoffs during the pandemic dictates that employers have a system in place for off-boarding employees remotely. The system should include, at the least, a mechanism for terminating exiting employees’ access to the employer’s information and information systems (including the remote wiping of company data from devices in the employee’s possession), for securing the full return of all equipment and confidential information, and for the employee to acknowledge their obligation to return (and not retain, use, or disclose) the employer’s confidential information (as well as to comply with their other post-employment contractual obligations).

Educate your employees. Policies and procedures are worthless, and can hurt more than help, if they are not disseminated, understood, and followed. This means that employers must, on an ongoing basis, educate their employees about company policies and practices. While in-person trainings are ill-advised in the era of social distancing, they may be easily replaced by online trainings, whether live or pre-recorded. Processes should be in place that require employees to not only read the policies and procedures, but also to acknowledge that they understand and agree to abide by them. Policies and procedures should provide an avenue for employees to ask questions and obtain answers that will be consistent throughout the company, either through legal or other channels. Employers are well-served by maintaining accurate records of policies and procedures and any amendments thereto, training dates, and employee acknowledgments. While training and acknowledgments will not necessarily prevent all willful misconduct, they may serve as a deterrent, help to limit incidents of inadvertent disclosure (or unauthorized solicitation) and, if litigation becomes necessary, help to establish the company’s reasonable efforts to protect its trade secrets and other legitimate business interests.

Monitor your workforce. Trade secret misappropriation and other forms of employee misconduct do not usually happen in a vacuum. Oftentimes, there will be warning signs that an employee is unhappy (e.g., a lack of engagement, an attitude shift or sudden change in behavior, increased activity on LinkedIn[3]). Moreover, employees who take their employer’s information with the intention of using it at their next place of employment frequently commit multiple acts of taking in the days and weeks leading up to their termination. Similarly, employees who plan to solicit customers may begin well before termination. For those reasons, employers should consider monitoring their employees’ email activity as well as their activity on other information systems to determine whether the employees are accessing information that they do not have a business need to know or are accessing appropriate information, but with unusual frequency. Periodic monitoring may enable an employer to detect and address internal threats earlier, thereby obviating the need for judicial intervention. Before engaging in any kind of monitoring, employers should disseminate policies that put employees on notice that the employers’ devices, systems, and accounts belong solely to the employer and may be monitored on a periodic or ongoing basis.

Conclusion

While these steps are intended to help employers protect their legitimate business interests, they are not comprehensive and are not guaranteed to protect against every threat of disclosure and other forms of misconduct. When implemented correctly, however, they should substantially reduce overall risk. In addition, where litigation is necessary, an employer that has implemented the above steps will have ample evidence to show that it both identified its legitimate business interests to its employees and notified them of their legal obligations to protect such interests. This can dramatically improve an employer’s chances of prevailing in court.

[1] SeeWhat’s Yours is Mine: How Employees are Putting Your Intellectual Property at Risk,” White Paper by the Ponemon Institute and Symantec Corporation (2013), available at https://www.ciosummits.com/media/solution_spotlight/OnlineAssett_Symantec_WhatsYoursIsMine.pdf.

[2] For a comprehensive checklist of steps employers can take, see “A primer and checklist for protecting trade secrets and other legitimate business interests before, during, and after lockdown and stay-at-home orders,” available at https://www.faircompetitionlaw.com/2020/05/17/a-primer-and-checklist-for-protecting-trade-secrets-and-other-legitimate-business-interests-before-during-and-after-lockdown-and-stay-at-home-orders/.

[3] See, e.g., “13 Signs That Someone Is About to Quit, According to Research,” by Timothy M. Gardner and Peter W. Hom, Harvard Business Review (Oct. 20, 2016), available at https://hbr.org/2016/10/13-signs-that-someone-is-about-to-quit-according-to-research.

 

Russell Beck is a founding partner of Beck Reed Riden LLP. He has authored books on trade secrets and restrictive covenants, assisted the Obama Administration on a Call to Action on noncompetes and trade secrets, drafted much of the Massachusetts Noncompetition Agreement Act, and revised the Massachusetts Uniform Trade Secrets Act. Russell teaches Trade Secrets and Restrictive Covenants at the Boston University School of Law and is President Elect of the Boston Bar Foundation.

Hannah Joseph is senior counsel at Beck Reed Riden LLP and focuses her practice on trade secrets and restrictive covenants law. Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law.


IRS Focus on Tax Reporting of Virtual Currency Transactions

by Richard P. Breed, IV

Practice Tips

Virtual currencies, such as Bitcoin or Ethereum, have moved beyond curiosities, and have, for several years, become legitimate and accepted methods of payment and exchange. Federal and state regulators, including the United States Internal Revenue Service (“IRS”), however, have been slow to keep up – until now.

IRS Notice 2014-21

Since publishing its initial general guidance in IRS Notice 2014-21 (“Notice 2014-21”) concerning the tax treatment of certain transactions involving virtual currency, the IRS has taken few steps to enforce compliance. In fact, despite billions of dollars being exchanged through virtual currency, the IRS estimates that a substantial amount of taxable virtual currency transactions have not been reported by taxpayers. GAO-28-188 Taxation of Virtual Currencies at page 11. Recently, however, with the publication of additional guidance in October 2019 pursuant to IRS Revenue Ruling 2019-24 (“Rev. Rul. 2019-24”) and other actions, the IRS is working to increase taxpayers’ understanding of and voluntary compliance with reporting obligations for virtual currency. Tax counsel should be mindful of this policy shift and be prepared to advise clients about the inevitable increase in taxpayer audits and, in egregious cases, criminal charges.

Notice 2014-21 clarified that the IRS will apply existing tax principles applicable to property transactions to virtual currency. Therefore, payments for goods and services using virtual currency, or exchanges from one virtual currency to another, will be treated as sales or exchanges of property that trigger gain or loss for income tax purposes. Such gain or loss will be taxed as ordinary income/loss or capital gain/loss depending on the taxpayer’s circumstances. Taxpayers who receive virtual currency in exchange for goods or services recognize income in the amount of the fair market value of the virtual currency as of the date of the exchange. Taxpayers need to track their tax basis in the virtual currency in order to properly calculate the gain or loss upon its later disposition.

IRS Revenue Ruling 2019-24

Rev. Rul. 2019-24 provided additional guidance limited to the tax consequences of a “hard fork” and an “airdrop,” which are transactions unique to cryptocurrency and its blockchain technology. As explained in Rev. Rul. 2019-24 “cryptocurrency is a type of virtual currency that utilizes cryptography to secure transactions that are digitally recorded on a distributed ledger, such as a blockchain. Distributed ledger technology uses independent digital systems to record, share and synchronize transactions, the details of which can be recorded in multiple places at the same time with no central data store or administration functionality.” Id. at 2. A hard fork “occurs when a cryptocurrency on a distributed ledger undergoes a protocol change resulting in a permanent diversion from the legacy or existing distributed ledger” and “may result in the creation of a new distributed ledger in addition to the legacy cryptocurrency on the legacy distributed ledger.” Id. A hard fork followed by an airdrop results in the “distribution of units of the new currency to addresses containing the legacy cryptocurrency. However, a hard fork is not always followed by an airdrop.” Id.

Rev. Rul. 2019-24 clarified when a taxpayer has receipt, for income tax purposes, of cryptocurrency distributed to the taxpayer from an airdrop. The IRS concluded that such receipt occurs on the date the taxpayer exercises “dominion and control over the cryptocurrency,” such as the ability to “transfer, sell, exchange, or otherwise dispose of the cryptocurrency”, id. at 3, which can occur before or after the date on which the transaction is recorded on the distributed ledger for the cryptocurrency. Id. at 2-3.

Simultaneous with the publication of Rev. Rul. 2019-24, the IRS published (and further revised on December 31, 2019) forty-five “Frequently Asked Questions” (“FAQs”) designed to promote voluntary compliance with tax reporting of virtual currency transactions. The FAQs came on the heels of the IRS Virtual Currency Compliance Campaign, which had been launched in July 2018 and is designed to reduce noncompliance in tax reporting through additional education, outreach, and, if necessary, examinations.

Don’t expect the IRS, however, to rely solely on taxpayer voluntary compliance. For example, in 2018, the U.S. District Court for the Northern District of California granted the IRS’s motion to enforce its summons against Coinbase, Inc. (“Coinbase”), a virtual currency exchange platform, to turn over identification data, including tax ID numbers, on any user who engaged in a virtual currency transaction in excess of $20,000 from 2013-2015. United States v. Coinbase, Inc., 2017 U.S. Dist. LEXIS 196306, *21, Case No. 17-cv-01431-JSC, November 28, 2017. Coinbase ultimately transferred personal data and account information on over 13,000 users to the IRS. Id. Not surprisingly, using this information, the IRS sent 10,000 warning letters in early 2019 to taxpayers whom it thought failed to properly report at least one transaction involving virtual currency. The letters advised taxpayers to amend prior tax returns to report any virtual currency transactions. IR-2019-132, July 26, 2019. See also Shehan Chandrasekera, “How the IRS Knows You Owe Crypto Taxes,” Forbes (January 21, 2020).

IRS Amended Schedule 1 to Form 1040

To assist taxpayers for future years, beginning with calendar year 2019, the IRS also amended personal income tax form, Schedule 1 to Form 1040 to add a question concerning whether or not the taxpayer engaged in any transaction involving virtual currency during the year.  If so, the form directs the taxpayer to disclose such transaction, if taxable. Taxpayers may wish to seek assistance of tax counsel to decipher which transactions must be reported and to calculate any gain or loss.

IRS Solicitation of Virtual Currency Professionals to Assist in Audit of Tax Returns

Most recently, in May of 2020, the IRS began to privately solicit experienced virtual currency professionals to assist the IRS with taxpayer examinations dealing with virtual currency. A copy of that solicitation has been posted online by various sources and is available here.

Conclusion

It should be noted that the IRS has not indicated a plan to offer an amnesty-type program similar to the Offshore Voluntary Disclosure Program, which dealt with taxpayers who previously failed to report income or assets held in accounts the custodian for which is located outside the United States. In addition, it is unclear whether taxpayers who voluntarily amend their tax returns to report taxable income from virtual currency transactions will be entitled to relief from interest and penalties due for failing to report the income.

It is abundantly clear, however, that the IRS is focused on increasing compliance in reporting taxable transactions involving virtual currency, and that taxpayers need to be aware of this. For their part, tax counsel should be mindful of these developments when advising their clients and remain vigilant for additional notices and rulings in the ever-evolving field of virtual currency.

 

Richard P. Breed, IV is an associate with the firm Tarlow, Breed, Hart & Rodgers, P.C., whose practice concentrates on business and tax planning for individuals and privately-held businesses.


On Thin ICE: Advocating for Non-Citizen Civil Litigants in an Era of Increased Immigration Enforcement

by Caddie Nath-Folsom

Practice Tips

In a time of unprecedented fear and uncertainty among immigrant communities, non-citizens may be afraid to pursue or defend their legal rights in state civil matters. This article is intended to help civil attorneys without immigration expertise more effectively assess the risks that their non-citizen clients face, confront immigration-related threats from opposing parties, and ensure access to justice for non-citizen litigants.

Opponents in cases involving divorce or custody, employment, landlord/tenant disputes, or tort and contract matters sometimes try to use immigration status as a litigation weapon, threatening explicitly or implicitly to report or expose a non-citizen party to Immigration and Customs Enforcement (ICE) to force settlement or gain an upper hand. Given the current political climate, these threats may be very effective against clients. Civil attorneys therefore need to be prepared a) to assess whether being reported to ICE is something the client actually needs to be worried about, and b) if it is, to push back against the threat and safeguard the client’s ability to exercise his or her rights under the law.

How then can a civil attorney without a background in immigration law determine whether being reported to ICE poses any real risk to a client? The attorney can fairly effectively assess the relative risk by determining whether ICE, or its umbrella agency, the Department of Homeland Security (DHS), has already detected the client’s presence in the United States. People who are “detected” include those with valid legal status and those with ongoing immigration court proceedings. If DHS is already aware that the client is present in the United States and the client is not currently detained, it means that the client is either not subject to detention or that DHS has determined that it isn’t necessary to detain this particular person. In either case, DHS is very unlikely to send ICE agents out to arrest that individual just because the opponent makes a report.  However, if the client is “undetected,” or not currently on the DHS’s radar, the danger of being reported to ICE is very real. In 2017, the Trump administration announced the elimination of earlier policy guidelines that prioritized the detention and deportation of those with criminal convictions or who posed a threat to public safety. Today, ICE focuses its enforcement resources on whomever it can find.

While in some cases it may be difficult to ascertain whether or not a client is detected, usually the attorney can make an educated guess by talking to the client about her immigration history. Most often, undetected clients either entered the U.S. with a valid visa and then remained after its expiration or crossed a land border into the U.S. between ports of entry without being caught by border agents. In either case, it is important to determine whether the client has ever had any contact with immigration officials in the U.S. or was ever ordered to appear in immigration court and failed to do so. Those who fail to appear for immigration court hearings, almost without exception, are ordered removed (deported) in absentia, even if they were minors at the time of the hearing. Clients with old removal orders are at the greatest risk of detention or deportation if an opponent exposes them to ICE. If apprehended, the prior removal order can be immediately reinstated, and they can be deported from the U.S. in short order.

Where it is difficult or impossible to determine if a client is undetected, the attorney should err on the side of caution and assume that an opponent’s threat to report the client to ICE is something to be taken seriously.

It is important to discuss the risk of exposure with undetected clients, particularly where there are indications that the opponent may use the client’s immigration status as a litigation weapon, such as prior explicit threats to have the client deported. For some clients, the cost of possible exposure may outweigh the benefit they stand to gain through litigation.

As an advocate, no matter the client’s level of risk, the lawyer should be ready to head off and push back against immigration threats. This may require creativity in developing a litigation strategy to protect the client and it will mean actively working to prevent immigration status from becoming part of the case. The lawyer should be cautious about pre-arranged events, including depositions and settlement conferences, which might provide an aggressive opponent with an opportunity to expose the client to ICE. Advocate to keep information about the client’s immigration status out of discovery, particularly if it is raised as an intimidation tactic and not relevant to the merits of the case. Lawyers may also remind opposing counsel that threats related to immigration status may violate the Rules of Professional Conduct and could amount to criminal extortion. See Mass. Rules of Prof’l Conduct R. 3.4(h) and (i), R. 4.4(a), R. 8.4(d), (e); Wash. Rules of Prof’l Conduct R. 4.4 cmt. 4 (2013); NC Formal Ethics Op. 2005-3 (2005); Ass’n of Bar of City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2017-3 (2017).

It is also critical to bear in mind Fifth Amendment protections in preparing for discovery and cross examination that could elicit admission to acts that constitute uncharged criminal acts (such as unlawful border crossings and aiding others to enter the U.S. unlawfully).

Finally, attorneys representing non-citizen clients should be prepared to address client fears about attending court hearings due to widespread reporting on ICE enforcement actions in courthouses. In June 2019, a federal district court judge temporarily enjoined all ICE enforcement activity in courthouses in Massachusetts. See Ryan v. ICE, 1:19-cv-11003-IT (D. Mass. June 20, 2019). Even before the injunction, ICE activity in courthouses appeared to be limited to targeted arrests of specific individuals, all of whom were attending criminal hearings, and did not include random checks of persons in a courthouse. While the injunction stands and ICE maintains current policies, non-citizen clients should not fear attending hearings on civil matters in Massachusetts.

The immigration regulatory landscape is complex and constantly changing. The information here provides only a high-level roadmap to help in assessing risk. Clients with more complex immigration histories or specific questions regarding eligibility for immigration relief should be referred to a qualified immigration attorney.

 

Caddie Nath-Folsom is a staff attorney at the Justice Center of Southeast Massachusetts in Brockton. She represents survivors of crime in immigration and family law matters.


Appellate Electronic Filing Tips for the 2020’s

by Joseph Stanton and Julie Goldman

Practice Tips

With the Appeals Court’s implementation of mandatory electronic filing for attorneys in September 2018 coinciding with extensive updates to the Massachusetts Rules of Appellate Procedure in March 2019, as well as with the Supreme Judicial Court’s pilot allowing parties to file electronic briefs with limited paper copies, this is a good time to provide feedback to the Massachusetts bar about some of the changes.  As part of this endeavor, we surveyed the Justices of the Supreme Judicial Court and the Appeals Court for their input.  What follows is a compilation of their feedback and additional observations.  Although the Justices’ responses were not unanimous, they revealed many common themes.

The Monospaced or Proportional Font Option.  Rule 20(a) now permits filers to use either a monospaced font (such as Courier New) with page limits, or a proportional font (such as Times New Roman) with a word count maximum.  Attorneys frequently ask:  What type of font do the Justices prefer?

Justices were evenly split among those who prefer a proportional font and those who had no preference, with slightly fewer Justices preferring a monospaced font.  The preferred monospaced font was, unsurprisingly, Courier New; the preferred proportional font was Times New Roman.  Sticking to one of these two fonts in your submissions is a safe bet.  If you decide to take advantage of Rule 20(a)’s flexibility and select a different proportional font to add some extra flair, heed one Justice’s comment that “if a practitioner wants to try something new, that’s fine, but it must be easy to read.”

A downside to using a proportional font is the extra space that it occupies when produced in 14 point or larger font as the rule requires.  A brief that is more than the traditional 50 page limit, even when within the new word limit, may seem longer to the reader using a proportional font because of the larger type size and new pagination requirements.  Therefore, it is important to be mindful that the Justices, as always, appreciate conciseness and brevity.

Visual Aids.  One way to free up space in a brief is to compile and present information through the insertion of visual aids.  Visual aids may include a photograph, image, diagram, chart, or table.  For example, in the Statement of Facts section of a brief, filers might consider putting chronological information contained in the record into a timeline format; various criminal charges, convictions, and sentences could be presented in a chart; a family tree could be useful in a probate case; a factually complex property case might benefit from a visual plan or map.  While the Massachusetts Rules of Appellate Procedure do not currently contain a provision explicitly allowing or disallowing visual aids, the appellate courts’ practice is to accept them and a future rule amendment is possible.

The Justices commented that such visual aids are “refreshing” and that, “if you created a chart to prepare yourself, then we could use the same chart.”  They also observed that, if you do not provide it, they may spend time developing a similar chart or understanding on their own.

But care and attention must be used when preparing a visual aid.  Justices remarked, “While it’s theoretically possible, I have rarely if ever seen a chart or graph used effectively[,]” visual aids are “generally no[t]” helpful or only “[i]f well done,” and “[a] little goes a long way.  Should be limited to the extraordinary and not [used] in lieu of precise text.”  Any visual aid must be based on the record and contain appropriate record or source references.

Electronic Review.  Virtually all of the Justices are reviewing documents electronically.  There may be a misperception that Justices simply review paper printouts of electronically filed documents.  That is not the practice.  All Justices of the Supreme Judicial Court and the Appeals Court have iPads, as well as desktop computers, that contain electronic files (PDFs) of each case including the briefs, transcripts, and appendices.  The Justices use different programs and applications, primarily the GoodReader app, to search for keywords, highlight text, insert notes, and copy and paste material to aid in drafting a decision.  However, to enable the Justices to use these search and annotation features, the rules require that all PDFs be created and efiled using optical character recognition (OCR) technology.  OCR is not optional yet many attorneys continue to submit non-OCR documents, which the courts will reject or strike when identified.

In general, Justices remarked that electronic documents are easy to read and the clarity of exhibits is enhanced in the electronic over paper form.  They expounded on the unparalleled convenience of having all of the documents at the tip of their fingers to access at any time of day, whether in the office, on the train, or in the courtroom.  Although paperless review has some drawbacks, the many positives of electronic accessibility and utility outweigh those shortcomings.

Overall, when asked what effect electronic document practices have had on their review of case files, an overwhelming majority of the Justices responded favorably with only one negative response.  The Justices reported a positive effect on their opinion writing, explaining that text-searchable documents, navigation, copying and pasting text, cite checking, and organizing multiple cases is much easier.  One Justice responded that poorly organized electronic record appendices make writing much more difficult.

Bookmarks and Internal Links.  One message many Justices asked us to emphasize is to encourage electronic filers to add bookmarks and internal links in electronic documents.  They assist Justices to navigate a PDF.  While internal links are currently allowed by S.J.C. Rule 1:25 but not required, the Justices surveyed overwhelmingly praised the inclusion of bookmarks and internal links in a document.  A guide detailing how to create them in a brief or appendix is available on the Appeals Court website.

Filers should consider adding internal links to the table of contents in their brief, addendum, and appendices that allow Justices to “jump” to the various sections of the document.  Including and bookmarking the Trial Court decision in the addendum to each brief or application for direct review, or the Appeals Court’s decision in an application for further review, is of the utmost importance.  One unfortunate limitation that exists with the efiling vendor’s current program is that hyperlinks cannot be used to link to different PDFs or outside sources, such as a brief’s citations to a separate record appendix or transcript volume.  Nevertheless, bookmarks and internal links are critical to the Justices’ review.

The Brief’s New Standard of Review Statement.  The Justices unanimously agreed that Rule 16’s new requirement that a brief contain a standard of review section is helpful.  However, one Justice noted that not all briefs include the statement, and expressed hope that more briefs will include it in the future, while another Justice commented that although more briefs are including a standard of review, it is not always the correct standard.  These responses reveal the importance of ensuring a brief includes a correct standard of review to assist the Justices.

Citations to the Record Appendix.  Because a hyperlink cannot be used in a brief to jump to a page in a separate record appendix volume, it is important that filers ensure that record appendix citations used in their brief are crystal clear.  A Justice remarked that finding citations can be difficult because of complex references.  Another Justice added that it would be helpful if all parties to a case used the same citation convention.

While the rules do not require a specific record citation convention, Rule 16(e) suggests: “RAII/55 (meaning Record Appendix volume II at page 55) or TRIII/231-232 (meaning Transcript volume III at pages 231-232).”  It is recommended that you use this format because it is simple, less disruptive to the reader’s flow, and counts as one “word” for length calculation purposes.

Similarly, filers in civil appeals are reminded of Rule 18(b)(1)’s requirements to confer with the other parties at the beginning of each appeal to determine the contents of the appendix.  Supplemental appendix volumes are especially apt to create confusion when they needlessly reproduce documents that were already included in the appellant’s appendix.

The “New” Record Appendix.  Several Justices remarked that record appendices are often disorganized, contain a poor table of contents (one example given was “Administrative Record – p 1; Judgment – p. 1,265”), and volumes are not paginated so that the document page and PDF page correspond.  Rule 18(a)(1)(A)(ii)’s new requirement that the table of contents “list[] the parts of the record reproduced therein, and includ[e] a detailed listing of exhibits, affidavits, and other documents associated with those parts,” illustrates the detail sought by the Justices.

Common Oversights.  In addition to the Justices’ feedback, we also surveyed personnel in the Appeals Court’s Clerk’s Office to determine the most common omissions or errors they encounter when reviewing electronically filed briefs and appendices.  They are:

(1) the brief or appendix is not OCR-searchable;

(2) the brief fails to comply with the pagination requirements in Rule 20(a)(4)(a), which requires filers to start a brief’s numbering with the cover as page 1, and eliminate the use of lower case Roman numerals for the tables of contents and authorities; the purpose of this rule is to have the brief paginated identically to the page numbers of its PDF version so that page references are easily ascertainable by the Justices;

(3) the absence of an addendum, which Rule 16(a)-(c) requires for any brief, and a table of contents for the addendum;

(4) a brief’s addendum, or a portion it, is not searchable using OCR while the rest of brief is OCR-searchable;

(5) Rule 16(k) brief certifications that are incomplete, specifically missing the required language identifying the filer’s calculation of the Rule 20 length limits; the court will not accept a brief without a compliant certification; and

(6) failure to include a complete table of contents in the first volume of a multi-volume appendix as required by Rule 18(a)(1)(C), or not including a table of contents in each separate appendix volume for that volume.

If you need any assistance or desire to double-check the requirements before uploading your PDF, the Appeals Court website provides detailed guidance for formatting documents for electronic filing, including checklists, and Clerk’s Office personnel are available to answer any questions.

Conclusion.  After decades, and even centuries, of Massachusetts attorneys submitting and Justices deciding appeals on paper, much has changed in the past year.  We hope these insights into the Justices’ current practices, preferences, and challenges will assist you in updating your practice to satisfy this new age of appeals.

Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on several court committees involving procedural rules of court and technology initiatives.

Julie Goldman is an Assistant Clerk of the Massachusetts Appeals Court. She has been working on the Judicial Branch’s electronic filing program since 2013 to bring electronic filing to the state courts through drafting the electronic filings rules and working with vendors to develop and implement efiling. 


Should it Stay or Should it Go?: Post-MUPC Probate Court Objections in the Wake of Leighton and Cusack

by Timothy F. Robertson, Esq. and Joseph N. Schneiderman, Esq.

Practice Tips

Introduction

Since Massachusetts adopted the Model Uniform Probate Code, G.L. c. 190B (MUPC) in 2012, few cases have addressed the topic of objections. This article will offer practical pointers for how to make objections stick in light of two recent (published) appellate decisions.

  1. Objections: History, Contents and Timeliness

Objections are an essential component of probate litigation. Objections provide notice to interested parties of a controversy within a probate or will action in the Probate and Family Courts. Upon the filing of an objection, the dispute becomes a lawsuit, where discovery may begin.

Objections may contest the merits of an action in probate court or air a more disconcerting lack of communication or trust involving a fiduciary. Affidavits in support of objections can range from the long-winded “let me tell my side of the story” affidavit to the more precise, but speculative affidavit. But neither of those extremes can or should suffice.

Before Massachusetts adopted the MUPC, Probate Court Rule 16 governed objections to wills. See e.g. O’Rourke v. Hunter, 446 Mass. 814, 816-817 (2006) (Marshall, C.J.) Rule 16 itself followed the abolition of jury issues in will contests and functioned to screen out frivolous attacks on wills. Id. at 817.

Rule 16 required an objection to articulate specific facts. An administrator could contest lack of specificity in an objection either by a motion to strike or motion for summary judgment-one did not need to exhaust objections before seeking summary judgment. O’Rourke, 446 Mass. at 818-821. But specificity remained the touchstone of an adequate objection. See e.g. Sher v. Desmond, 70 Mass. App. Ct. 270, 279, n.11 (2007).

Today, G.L. c.190B, §1-401(e)-(f) governs objections. Objections still require specific facts and must include supporting affidavits. The affidavit should stem from personal knowledge and should contain as much detail as the drafter knows. Compare Mass. R. Civ. Pro. 56(e) (governing affidavits in summary judgment.) Allegations of fraud should be stated with particularity. Compare Mass. R. Civ. Pro. 9(b).  A best practice is for the drafter (i.e., counsel) to reserve the right to supplement the affidavit as discovery proceeds.

Under the MUPC, it is the timeliness of an objection, however, that is of more critical importance. If an objector lacks sufficient information to develop an appropriate affidavit within the applicable time period (the return date set by the court or otherwise by statute), practitioners should: (1) act quickly to propound discovery on the petitioner (and any other person or entity with relevant information) under Supp. Prob. Ct. R. 27A and (2) concomitantly move to extend the deadline for filing the affidavit of objections.

  1. Leighton v. Hallstrom-Case Study of a Successful Objection

Despite the strict time requirements for filing an objection and the need for a detailed affidavit, a recent Appeals Court decision suggests that substance ultimately prevails over form when considering the adequacy of an objection.

In Leighton v. Hallstrom, 94 Mass. App. Ct. 439 (2018), a magistrate endorsed Leighton’s petition for a formal adjudication of intestacy, determination of heirs, and Leighton’s appointment as personal representative of the decedent’s estate. Prior to the entry of the decree, Hallstrom came forward and announced himself as an interested person and first cousin of the decedent. On a pre-printed Probate and Family Court form (MPC 505a), Hallstrom also filed a notice of appearance but did not check the box that his appearance was an objection. In the interim, the magistrate entered a decree on another pre-printed form but left blank the fields for specific individual heirs, instead referring back to the petition.

Hallstrom unsuccessfully tried to persuade Leighton of his lineage to the deceased, including with a genealogical chart. Leighton later petitioned for a complete settlement and Hallstrom objected. The Probate Court judge struck Hallstrom’s objection as tardy and because the magistrate’s initial decree resolved who the heirs were. Hallstrom appealed.

The Appeals Court reversed. The Appeals Court noted that although the MUPC imposed strict time constraints for objections, the true issue was not timeliness but the legal significance of the decree-which did not explicitly list any heirs. Instead, the decree referred back to the petition, which specifically listed Hallstrom as a purported heir. Moreover, the Personal Representative was aware of Hallstrom’s claims. Thus, since the decree did not resolve the issue of who the heirs were, there was no legal basis to preclude Hallstrom’s objection. 94 Mass. App. Ct. at 446, citing and quoting Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004) (“Issue preclusion is not available where there is ‘ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge.’”).

Leighton illustrates that practitioners should not avoid nor courts discourage limited objections. Indeed, the Probate and Family Court’s pre-printed forms like MPC 505a can lend themselves to ambiguity. So long as the substance of the objection is there, the objection suffices. Indeed, if there is a need to amend the objection, practitioners can and should amend fairly and freely, as they could under former Rule 16. See e.g. Hobbs v. Carroll, 34 Mass. App. Ct. 951 (1993), citing Mass. R. Civ. Pro. 15.

  1. Cusack v. Clasby: Are Objections or Contempt Actions Your Recourse for Bad Administration?

The manner of probating the estate may raise concerns. Is filing an objection to an account the best mechanism to address concerns? Depending on the information known to the interested person and the status of a matter, a petition to remove the personal representative might be the appropriate course. However, if a first and final account has been filed, and the deadline for objections has been set, a potential objector has a limited time period to act.

Cusack v. Clasby, 94 Mass. App. Ct. 756 (2019), illustrates this point. Catherine Cusack died in June 2014, survived by eight children, all equal heirs. Clasby, one of her daughters, and the administrator of her estate, petitioned to probate the estate in October and filed a petition for an order of complete settlement in December 2015. Three of Clasby’s siblings objected, asserting that the final accounting reflected disbursements that had not in fact occurred. A judge in the Probate Court struck the objections, approved the final accounting, and settled the estate. The siblings appealed, asserting that settling the estate was premature.

The Appeals Court affirmed the settlement and rejected this contention. The Appeals Court noted that before Massachusetts adopted the MUPC, settlement was indeed incomplete until all payments were made by the estate. 94 Mass. App. Ct. at 758, citing former G.L. c.206, §22. However, the MUPC expressly repealed and displaced this principle. Id.  at 759, citing G.L. c.190B, §3-1001. Similarly, the MUPC also permitted Clasby, as an administrator, to approve accounting and distribution of the estate.  Id.. at 758.

Thus, the Probate Court judge had authority to jointly approve the accounting and settle the estate. Indeed, the joint order furthered the purpose of the MUPC to spur a “speedy and efficient system for liquidating [an] estate of [a] decedent and making [distributions.]” 94 Mass. App. Ct. at 759, quoting G.L. c.190B, §1-102(b)(3). Finally, the siblings were not without recourse-they could petition for contempt for violations of a court order. Id. at 759.

Cusack raises an important practical question about how to redress problems during distribution. On the one hand, procedurally, a contempt action does have benefits. A decree settling an estate certainly constitutes a court order for purposes of contempt. The Probate and Family Court also deals with contempt every day. Contempt actions also proceed under the same docket without a separate filing fee, and a successful litigant may recover their attorney’s fees.

Substantively however, a contempt action after distribution may not provide an ideal solution. Contempt has to be proven by clear and convincing evidence and not every violation of a court order constitutes a contempt. Indeed, ambiguous court orders do not lend themselves to contempts. See e.g. Hoort v. Hoort, 85 Mass. App. Ct. 363, 365 (2014). A contempt action may deleteriously prolong and reopen a seemingly settled estate, and thwart the spirit of speedy settlement under the MUPC-or the purpose of former Rule 16 to screen out frivolous contests.

Conclusion

Leighton and Cusack illustrate how will objection practice has developed since Massachusetts adopted the MUPC. While an affidavit in support of an objection should contain specific facts, merely putting the proponent on notice of a problem may suffice if the proponent is relying on a pre-printed probate court form to preclude an issue.

On the other hand, objections no longer function to redress poor or incomplete administration because administration closes comparatively quickly. Whether or not contempt actions against administrators will actually serve the purposes of objections for bad administration will be interesting to see in light of the severe backlogs in certain probate courts.

 

Timothy F. Robertson is the Principal Attorney of T FRANK LAW, PLLC, a Trusts and Estates law practice in Charlestown, MA. https://www.tfranklaw.com. Tim is grateful to Joe for the opportunity to collaborate and for staying abreast of recent SJC and Appeals Court Decisions.

Joseph N. Schneiderman has an appellate-exclusive practice in Massachusetts and Connecticut and has argued four times in the SJC since 2015. Joe can be contacted at connlawjoe@gmail.com. Joe gratefully thanks Tim for the opportunity to write and collaborate about important appellate developments in probate law. Joe further dedicates the article to the memory of his grandfather, Natalé “Nat” Memoli.


A Streamlined Form of Closing Opinion (2019 Update)

by Donald W. Glazer and Stanley Keller

Practice Tips

At the closing of many business transactions, counsel for the company delivers to the other party – e.g., the investor, lender or acquirer – a letter, commonly referred to as a “closing opinion,” in which counsel provides that other party (the opinion recipient) legal opinions on various matters it has asked counsel to address.  Though each closing opinion must be tailored to the specific transaction, closing opinions in general tend to address many of the same matters in similar ways from transaction to transaction.

The meaning of opinions and the work required to support them are based on the customary practice of lawyers who regularly give and who regularly advise opinion recipients regarding opinions of the type being given in the transaction.  Customary practice allows opinions to be expressed in only a few words and permits the lawyers preparing them to rely on many unstated assumptions and limitations.  By amplifying the meaning of abbreviated opinion language, customary practice provides the framework for preparing and interpreting opinions, thus facilitating the opinion process.

As recognized in the Restatement (Third) of the Law Governing Lawyers, Section 95 (Reporter’s Note to Comment c), customary practice is described and discussed in bar association reports and scholarly writings.  In 1998, the Boston Bar Association’s (“BBA”) Legal Opinions Committee of the Business Law Section issued a statement in which it characterized the then new TriBar Opinion Committee’s report, “Third-Party ‘Closing’ Opinions,” 53 Bus. Law. 591 (1998), and the “Legal Opinion Principles,” 53 Bus. Law. 831 (1998), published by the American Bar Association’s (“ABA”) Legal Opinions Committee of the Business Law Section as providing a helpful description of the customary practice followed by Massachusetts lawyers in the preparation and interpretation of closing opinions.  In 2002, the ABA’s Legal Opinions Committee issued revised “Guidelines for the Preparation of Closing Opinions,” 57 Bus. Law. 875 (2002) (the “Guidelines”), and, following its 1998 report, the TriBar Opinion Committee supplemented that report with several additional reports.  In 2008, the “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions,” 63 Bus. Law. 1277 (2008) (the “Customary Practice Statement”), was published.  The Customary Practice Statement was approved by many bar associations and other lawyer groups, including the Boston Bar Association, and described the principal elements of customary practice that form the basis for legal opinion practice.

In its 1998 statement, the BBA had noted the desirability of a “more streamlined opinion letter” that omitted disclaimers, qualifications and assumptions which the Legal Opinion Principles made clear are understood to apply, as a matter of customary practice, whether or not stated expressly.  Subsequently, the BBA Legal Opinions Committee prepared a streamlined form of closing opinion that could be used by both opinion givers and opinion recipients.  That streamlined form, prepared under the supervision of this article’s authors and representing the work of lawyers in many Boston-area firms, was endorsed by the BBA as a useful document to facilitate the closing opinion process and enhance the efficiency of business transactions and was published in the January/February 2006 issue of the Boston Bar Journal.

Subsequently, effort was undertaken to develop a statement of opinion practices that could be endorsed by many bar associations and other lawyer groups as expressing a national consensus on key aspects of opinion practice based upon customary practice.  That effort produced the current “Statement of Opinion Practices” and related “Core Opinion Principles” which updates the Legal Opinion Principles in their entirety and selected provisions of the Guidelines.  The Statement and the Core Opinion Principles have been approved by many bar associations and other lawyer groups, including the BBA Council on March 19, 2019.  The Core Opinion Principles are derived from the Statement and can be incorporated by reference in or attached to a closing opinion by those who desire to do so.

The authors of this article have updated the BBA Streamlined Form of Closing Opinion to refer to the Core Opinion Principles and to reflect developments in legal opinion practice since 2006 (as updated, the “Streamlined Form”).

The Streamlined Form is not intended to be prescriptive.  Rather, reflecting a broad consensus on acceptable opinion practices, the Streamlined Form is designed to serve as a helpful starting point for lawyers in drafting closing opinions and as guidance on the opinions lawyers can advise clients to accept.  The Streamlined Form addresses an unsecured bank loan.  Attachment A to the Streamlined Form includes opinions that would typically be given on the issuance of stock.  The explanatory notes to the Streamlined Form, while intended to provide helpful information, cannot substitute for the extensive literature that exists on closing opinions.

The Streamlined Form seeks to address opinion issues in a balanced way. Some noteworthy features are:

  • The language used to incorporate definitions from the underlying agreement is more precise than language often used in closing opinions.
  • The Form avoids the use of the phrase “to our knowledge,” which courts have not consistently interpreted as a limitation. Note 22 suggests a formulation that makes clear that this phrase, if used, is intended as a limitation.
  • The Form sharpens the description in the introductory paragraphs of the factual investigation undertaken, thus avoiding the suggestion that the opinion preparers conducted a broader investigation than actually performed. The description also makes clear that the opinion preparers may have relied on certificates of public officials for legal matters.
  • The corporate status opinion does not use the terms “duly incorporated” or “duly organized” for the reasons explained in note 9. The elimination of these terms has been widely accepted by opinion recipients.
  • Paragraph 4 contains a more precise formulation of the no violation of law and no breach or default opinions than appeared in the original form.
  • Note 17 provides an analysis of the Restatement approach for determining when the governing law provision in an agreement should be given effect. The Restatement approach has been adopted in Massachusetts and many other states.
  • Note 18 addresses opinions on the enforceability of forum selection provisions. Although rarely seen in domestic transactions, separate opinions on the enforceability of forum selection provisions are often given in cross-border transactions.
  • The Form proposes a formulation of the no-litigation “opinion” that is narrower than the one often used in the past. (The “opinion” is a factual confirmation and therefore more accurately referred to as a no-litigation confirmation).  Use of a narrower formulation is an alternative to declining to cover litigation at all.  The omission of any statement regarding litigation in closing opinions has gained increased acceptance.
  • The Form includes a provision, often referred to as the “Wachovia provision,” that makes clear limitations on the right of assignees of notes to rely on a closing opinion.
  • Attachment A addresses opinions on a corporation’s outstanding capital stock and rights to acquire stock. It also includes a form of opinion that the issuance of the stock does not require registration under the Securities Act of 1933.
  • The Form leaves space for exceptions rather than identifying particular exceptions, including those that are commonly taken.

No form can accommodate every factual situation or eliminate the need for lawyers to exercise care in preparing closing opinions. Nevertheless, lawyers who have treated the streamlined form of closing opinion as a starting point in drafting their closing opinions have found that it improves the efficiency of the opinion process. We are hopeful that its approach will continue to gain acceptance to the mutual benefit of both opinion givers and opinion recipients.

Donald W. Glazer is Advisory Counsel to Goodwin Procter LLP and co-author of the treatise, Glazer and FitzGibbon on Legal Opinions.  Stanley Keller is a Senior Partner in the Boston office of Locke Lord LLP.