Go Solo, You (Probably) Won’t Starve!

mehta_tejalby Tejal Mehta

The Profession

You may have a great boss. You may have a lucrative job. You may work at a law firm or a public agency, with job security and benefits. You may have all of the above. But haven’t you ever wondered how great life would be if you could call your own shots? Your. Own. Firm.

Of course it is daunting. You will ask yourself, “What will be my  niche?” “How will I find clients?” “What if my clients become unhappy and sue me?” “Will a home office do?” “Who will buy my paperclips?”

Relax and take a deep breath. Thanks to countless new websites, online products and phone applications, hanging out a shingle is easier, safer, and even more rewarding than was possible even a few years ago. If you are even considering taking the leap, read on.

Budget

One lesson learned the hard way by many new solo practitioners is that you don’t want to start off by spending too much money. Because you will be on your own, you will probably have a few lean months in the beginning. Your necessary expenses will include marketing, malpractice insurance, bar dues, a post office box, office supplies, travel and parking. Create a startup business operating budget of $5,000-$10,000 for your first year, and stick to it.

Your Business Plan

You will already have thought about this, in the course of deciding to go solo. But while you are working through your startup list, keep thinking critically about your niche. What do you like to do? What are you good at? And where do you want to practice? If you want to practice criminal defense and be in court regularly, perhaps apply to be a bar advocate. Starting up a civil practice may be a little more challenging, but that is where marketing comes in.

Your Marketing Plan

Network, network, network. A professional support system is crucial. Start by drawing upon the colleagues and connections you already have. Join the local bar association of the geographic area where you plan to practice, and attend events as regularly as you can. Call your colleagues from your prior firm or from law school, and let them know they can send you cases and you will give them a portion as a referral fee. You will start building your practice and your reputation.

As you continue to network, you will likely meet attorneys who are willing to send you their overflow cases. Do not be afraid to ask for this, and for general advice. Before I launched my solo practice, I scheduled a dinner meeting with a solo practitioner colleague who walked me through his startup, informed me how he handled his billing and taxes, and provided me sample fee agreements and boilerplate motions for court.

Join the Massachusetts Bar Association or the Boston Bar Association and attend events or section meetings. The Massachusetts Bar Association has a valuable “Lawyer Referral Service” through which you can receive case referrals for your legal specialty.

Is there a legal topic you know well enough to teach to others? Write a letter to the MCLE programming coordinators and explain that you would like to volunteer your time, by chairing a panel or speaking as a panelist, on that particular topic. This will make you more visible in the legal community.

Websites such as Avvo.com are gaining popularity among attorneys. You can create a basic profile, with your photo, for free. They also have services to make you highly visible online and help you stand out in your desired geographic area and practice niche. This can be more of an investment, so do your research on these sites before diving in. Another widely used networking tool is LinkedIn.com, which allows you to create an online profile for free and connect with lawyers and other professionals who are on this platform.

Do you have a Facebook account? Make your Facebook page your business page! Use your logo and bio, provide details of your expertise, and broadcast your new venture to the network you have already established. It is free advertising, and even if it brings in one new client it will be worthwhile in your first six months. Keep it professional and you can use it along with your business website to reach out to Facebook users. I would suggest using it in addition to, not in lieu of, your business website, as the audience you connect with on Facebook may be different from the audience you would reach through a customary website.

The Nuts and Bolts of Your Actual Startup – In Order

Plan your start date for 30 to 60 days out. Then set the wheels in motion.

Contact information. Set up a free Google voice number or use a similar service, as your work line on your existing phone. Use caution when giving out your personal cell phone number. Clients will call you at all hours of the day and night. Also set up a work email – a professional name on a gmail account will work. Courthouses still send and receive faxes, so it may be worthwhile to set up an efax on your computer at some point.

Firm name. This is a personal choice. You can be creative, or just use your last name, e.g., Smith Law Offices.

Office/Post Office Box. Having a physical office can be expensive and is not really necessary in the beginning. Wait and see what your needs are. You will need a space where you can meet clients, so in the meantime, you can meet them in a courthouse conference space or in public establishments such as coffee houses or the library. To keep your relationships professional, do not meet clients at your home or theirs. Also, you can ask a colleague to lend you a conference room and pay them for that day. Or, you could pay to have use of a virtual office and conference space, on an as-needed basis. You can list it on your business cards and thus have a mailing address at a professional building. If you do not initially rent an office or use a virtual office, you will still need a mailing address. Rent a post office box in a convenient location. The small or medium sized post office boxes offered should suffice, and will cost about $100-$160 annually.

Bank Account. Go to the bank of your choice. Take your checkbook. There will be a minimum balance requirement, likely at least $1,500, to set up the business account. Inform the bank you need a small business checking account and an Iolta account with a low minimum balance and no fees. The bank will need your firm name. If you have not incorporated, then you can call your firm a “dba” (“doing business as”), e.g., John Smith dba Smith Law Offices.

Do you need to incorporate your business? Not immediately. Many attorneys do it, but not all. The key question to answer is, what assets do you want to protect? The purpose of incorporating is to shield your business from liability in the event of a lawsuit. If you have very little to protect, you may not need to incorporate right away. It costs approximately $500 to $1000 to incorporate with the Secretary of State. You can defer that cost at the onset of your new practice. You may also seek to obtain a higher liability insurance policy initially, while deciding whether to incorporate.

Malpractice Insurance. Massachusetts Lawyers Weekly contains liability insurance recommendations. Or, you can ask a colleague for a recommendation. Do not be afraid to shop around. You should purchase a minimum of $100k/$300k coverage.  A basic policy should cost approximately $600 for your first year. It will rise after that.

Business cards.  Look at colleagues’ cards for ideas. Create a simple design – logo optional – and limit the text. Use an easily legible font. A business card that is handsome and easily readable is an asset – one that is too busy or uses type too small to read is useless. You can find economical printing options at Staples or Costco. You can print 500 cards for as little as $15.

Letterhead. Again, look at your colleagues’ letterhead for ideas. You can easily tailor yours and print it from your own computer.

Website. The vast majority of potential clients look for their attorneys online, or, if they have been referred to an attorney, they Google that attorney to see what they can learn about him or her. Get a professional headshot. Or, take a friend to a law library, stand in front of the reporters, and have the friend take your photo. Then create a website and post your photo on it. A site such as WordPress will construct a basic website for $100. As time goes on, you may want to make it more expansive, with client testimonials, information about cases you have handled, and even a blog. Some of my colleagues use professional website companies that engineer the site to put them at the top of the list in online search engines. I nearly fell over when I found these services cost upwards of $15,000 per year. This type of cost can be deferred until later.

Essential items. You will need a computer, printer, office supplies, and a datebook or online calendar to keep track of appointments and payment dates. You will need access to a scanner and a fax machine, either in your home or at a place such as Staples. You may also wish to purchase a credit card reader from a service such as Lawpay, in the future. Make sure to save all of your receipts for tax time.

The Rest Is History

Starting your own law practice takes guts, and the beginning may be a bit rocky. But if you set up your firm with care, have a vision of your practice, and plug away at networking, you will begin to enjoy success. Before you know it, your name will be out there and new attorneys will be asking you for advice on how to launch. Good luck!

Note:  this article reflects the author’s personal opinions and experiences, and is not to be construed as an endorsement of any specific services or companies set forth herein.  If you have any specific questions relating to starting your own practice, please feel free to email the author at tmehta.law@gmail.com.

Tejal Mehta, a trial attorney, has worked at civil litigation firms and the Middlesex District Attorney’s Office, and now operates a thriving solo practice.  She is a former member of the Boston Bar Association.

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Beyond Arbitration and Mediation: Designing the Dispute Resolution Process to Fit the Situation

zeytoonian_Michaelby Michael Zeytoonian

The Profession

We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.

Yet, until recently, the legal profession’s response to the increasingly tailored needs of our clients has been to give them all the tried and true traditions of the law.  Got a dispute?  Let’s file a lawsuit with the courts and travel down the litigation road.  Got a complex, sophisticated business dispute?  Let’s go to arbitration with an arbitrator who is experienced in business disputes.  Don’t want to risk a jury deciding your case and spend thousands of more dollars on a trial?  Let’s go to mediation.  Because…this is how we do it.  This is how we’ve been doing it for decades.

The information revolution has moved too quickly and our clients have become too savvy to be content with the legal profession’s limited amount of choices or one size fits all approach. There is a time and a place for litigation, for arbitration, and for late in the dispute process mediation.  But most of the time, our clients need an approach to resolving their disputes that is tailored to their needs, specific circumstances, and unique situations.  Today’s lawyers and neutrals can best serve our clients by being responsive to the specificity of their needs and interests.  That includes not only resolving a dispute but also how we go about resolving it.

New England Patriots coach Bill Belichick often talks about playing “situational football.”  In other words, the game plan is designed differently for each game and depends on the situation each opposing team presents. The Patriots will never use the same game plan against the Broncos as they used for the Jets just because it worked.  The Patriots win because they understand that a great result begins with a carefully designed and tailored approach.

Every dispute is different.  Every client has a different bandwidth of factors which need to be considered.  These may include how quickly the client needs to resolve the matter; how much can be spent on it; how important are the relationships of those involved; how much control does the client want to have over the process and the result; how risk averse is he/she; how important is confidentiality; what kind of expertise is needed; what are the important interests that are behind a stated position; and how productively can the parties work together in a non-adversarial setting, with or without a human go-between.

If the field of dispute resolution (DR) is going to be relevant, it has to be agile and responsive to the situation that is presented to us.  No longer can litigation be the default and a couple of other processes be “alternatives.”  In fact, no one process can be the default position and be presented to clients as the Cadillac of dispute resolution processes.  It is time for the “A” (alternative) to be dropped from “ADR” (alternative dispute resolution), something that the Massachusetts Bar Association has just formally recognized in changing its former ADR Committee to its new DR Section.  No process is an alternative; rather, every process is an alternative, and there are alternatives within the alternatives.

Within these DR processes, there is an explosion of variations and new roles emerging.  For example, distinctions are often made between “facilitative” style mediation and “evaluative” mediation.  In the latter, the mediator is called upon to help the parties assess how strong or weak their respective positions are, and to provide insight on the potential damages.  A new trend emerging, called Planned Early Negotiation (PEN), draws a distinction between mediation which is done instead of litigation, or very early on in the litigation process, and that which is done later, often on the eve of trial.  When done early, there may be some kind of information exchange so that the parties, lawyers and the mediator have enough factual information for well-informed and productive negotiations.  Conciliation is another DR process with a much shorter time frame – often an hour or two –- and has often been referred to as “mediation on steroids.”  Conciliation largely focuses on the advantages of reaching a negotiated agreement as compared with the pitfalls of the alternative of going to trial.

New approaches have been developing even in the well-established field of arbitration.  Arbitration has increasingly become a more complicated process and often includes many elements of litigation.  As a result, many parties are opting for more streamlined models of arbitration with limits on discovery and motion practice   Some even use a more simplified version like “baseball arbitration,” in which the parties submit their respective written proposals for a settlement to the arbitrator, who then chooses the one he/she believes to be more appropriate and reasonable.  And within baseball arbitration, there is both the version just described, known as “daytime” baseball arbitration, and “nighttime” baseball arbitration, in which the parties submitted proposals are not disclosed to the arbitrator until after the arbitrator renders a decision.  The proposal that is closest to the arbitrator’s decision is then chosen to be the final resolution.    In other cases, arbitrators may visit the site that is at the heart of a dispute and may limit or expand the degree of information exchange, the scope of submissions and the nature of a hearing.

Collaborative law, a structured negotiation process, grew out of the need to remove or minimize the adversarial elements of litigation.  Collaborative law is a PEN process designed to intentionally pursue resolution by agreement through the collaboration of lawyers, clients and experts.  It is similar to the more established role of settlement counsel.  Lawyers that are hired as settlement counsel have the singular and limited purpose of negotiating with the other side on behalf of the client, as distinct from litigation counsel.  A dispute would then proceed on two tracks; settlement counsel would be focused on pursuing settlement negotiations only, while litigation counsel would be handling the litigation aspects of the dispute.

Similar to the role of settlement counsel, the focused legal representation of clients by collaborative lawyers is limited to the collaborative process, where achieving the desired resolution is the lawyer’s only role.  Collaborative law requires the open and voluntary exchange of all relevant information as a basic tenet.  As such, “discovery” is both streamlined and profound.  Collaborative lawyers and their clients may utilize neutral facilitators, case evaluators, or other neutral experts to provide parties with the expertise needed on the relevant factual and legal issues when there is a colorable claim and a valid defense.  By its very nature, collaborative law is responsive to the circumstances of the dispute, allowing for flexibility and creativity in crafting solutions.  That very nature allows collaborative lawyers to use variations while remaining consistent with the process’s basic protocols and principles.

Hybrids like “med-arb” or collaborative law with a baseball arbitration style closure option are also emerging, each with a different adaptation of process.  What is clear is that there is no longer just one model of any of these processes.  They will be called upon to be responsive to the situation each dispute presents.

These changes will require lawyers and neutrals to make more detailed assessments of each situation and the parties involved.  Based on that assessment, we can then make a recommendation as to choosing and sometimes designing the right approach.  This can present somewhat of a dilemma.  Many lawyers and neutrals have a preferred DR process, one that we are more comfortable with, have the most experience in or in which we have been trained.  Just like a surgeon excels at surgery and that is what the surgeon wants to do, litigators want to litigate; arbitrators want to arbitrate; mediators want to mediate; collaborative lawyers want to use collaborative law; and so on.  So when the client comes into our office, there’s a natural bias, as well as a financial incentive, toward wanting to lead the client to what we do.

But if we are true to doing a thorough assessment of the client, his/her situation and all the factors of the dispute that is presented to us, and are going to make a good recommendation about the approach for this unique situation, we may have to refer the person to some other process and someone else that is the right fit for that client.

In the same way that a lawyer specializing in one area of practice would not try to represent the client in an area outside of his/her practice, a lawyer whose focus is settlement counsel or collaborative counsel is probably not the right lawyer for litigation, and vice versa.  As there are specialties in areas of practice, today there are specialties in types of process.  The training and expertise for a litigator is different than that of a settlement counselor, just as the process of collaborative law is different from arbitration.  In her groundbreaking book, The New Lawyer: How Settlement is Transforming the Practice of Law, Law Professor Julie Macfarlane eloquently dissects the differences between adversarial advocacy and the newly emerging “conflict resolution advocacy.”     

There is a role and a place for every kind of process on the DR spectrum, from litigation and arbitration on one end to preventive contract drafting and proactive ombudsman work on the other end.  As the needs and demands of our clients get more specific and more sophisticated, those of us who represent our clients either as litigation, settlement or collaborative counsel, as well as those of us who serve as DR neutrals, must be responsive.  The times call on us to be flexible and agile, to be ready and able to design approaches according to the needs and the situations presented to us.   As legal counsel and neutrals, it is up to us to guide parties in the right direction in order to help them achieve their best outcomes.

Michael A. Zeytoonian, the founding member of Dispute Resolution Counsel, LLC is a lawyer and mediator whose practice areas include employment, business, consumer protection, special education law and homeowner-contractor disputes.  Michael writes, lectures frequently on collaborative law, mediation and dispute resolution (DR) and has trained lawyers and presented on Collaborative Law throughout the United States, Canada, Ireland and The Netherlands.  He is co-author of Collaborative Law: Practice and Procedures (MCLE, Boston 2014).  


Raising the Bar on Sentencing Policy: The Massachusetts Sentencing Commission

Lu_JohnRiley_Kevinby Hon. John T. Lu and Kevin Riley

The Profession
“Empower the Sentencing Commission to revisit the state’s approach to sentencing and sanctions”, this was one of several key criminal justice policy recommendations proposed by the Massachusetts Criminal Justice Coalition in 2013. At the urging of criminal justice leaders, the Massachusetts Sentencing Commission, originally codified in Massachusetts G.L. c.211E, was re-established in 2014 and met for the first time that October to consider the performance of our sentencing system. Nearly nineteen years after the publication of the first “Report to the General Court” in 1996, once again the members and staff of the Massachusetts Sentencing Commission eagerly embrace the opportunity to reposition the Commonwealth at the forefront of criminal justice policy development.

The current sentencing guidelines are used by many judges on a voluntary basis. The guidelines are in the form of a grid where the seriousness of the offense and the criminal history of the defendant are systematically considered in making a sentencing recommendation.

Comprised of three judges, three prosecutors, and three defense attorneys, along with the Secretary of the Executive Office of Public Safety and Security, a representative of the Massachusetts Sheriffs’ Association, the Commissioner of the Department of Correction, a designee of the Parole Board, the Commissioner of Probation, and a designee of the Victim Witness Assistance Board, the Commission represents a diverse cross-section of subject-matter experts, including:

• Hon. John T. Lu (Chair): Associate Justice, Superior Court;

• Daniel Bennett, Esq: Secretary, Executive Office of Public Safety and Security;

• Michael J. Callahan, Esq: Executive Director, Massachusetts Parole Board;

• Edward J. Dolan: Commissioner, Massachusetts Probation Service;

• Mary Alice Doyle, Esq: Deputy First Assistant DA, Essex County DAs Office;

• Peter L. Ettenberg, Esq: Defense Attorney (MACDL);

• Hon. Kenneth J. Fiandaca: Associate Justice, Boston Municipal Court;

• Pamela Friedman, MSW: Chief, Victim Witness Unit Norfolk County DAs Office;

• Brian S. Glenny, Esq: First Assistant DA, Cape & Islands DAs Office;

• Hon. Mary Elizabeth Heffernan: First Justice, Newton District Court;

• Carol Higgins O’Brien: Commissioner, Massachusetts Department of Correction;

• Dean A. Mazzone, Esq: Senior Trial Counsel, Criminal Bureau Attorney General’s

Office;

• John S. Redden, Esq: Attorney-in-Charge, Brockton Superior Court Trial Unit (CPCS);

• Martin Rosenthal, Esq: Defense Attorney (MACDL); and,

• Steven W. Tompkins: Sheriff, Suffolk County.

Commission members, appointed in accordance with Massachusetts G.L. c. 211E, serve on a voluntary basis and are generally appointed for six-year terms; no voting member may serve more than two full terms. The enabling legislation envisions the Massachusetts Sentencing Commission as an ongoing entity that supports, monitors and assesses the implementation of sentencing initiatives throughout the Commonwealth. Under the statute the Commission and its staff seek to:

• Analyze the impact of existing and proposed sentencing policies and practices on criminal justice resources using computer simulation models;

• Provide training and support to court practitioners on the use of sentencing guidelines;

• Recommend the appropriate placement of newly-created crimes on the sentencing guidelines grid;

• Conduct research on sentencing and other criminal justice issues to help guide the formulation of policies and legislation;

• Collaborate with criminal justice agencies on system-oriented research initiatives; and,

• Serve as a clearinghouse for information on sentencing.

Since the Commission’s initial meeting in October 2014, members and staff have convened on a monthly basis to discuss a wide scope of proposed sentencing changes, initiatives, and policies. The Commission’s commitment to data-driven decision making and evidence-based practices is furthered by the appointment of University of Massachusetts Lowell Professor James Byrne, an authority on evidence-based sentencing practices, to the position of outside technical advisor and the Commission’s access to the expertise of staff and faculty at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School. On November 18, 2015 the Commission held a public hearing to solicit public commentary on sentencing matters. Further, in addition to strongly considering valuable public input on sentencing, the Commission has called upon the expertise of the following nationally recognized leaders to help guide the work of the Commission:

• Michael Coelho: Deputy Commissioner of Programs at the Massachusetts Probation Service, Coelho addressed the Commission on the Pew Results First Initiative, a cost- benefit approach to guiding policy and budgetary decisions throughout the Massachusetts criminal justice system.

• Professor Mark Kleiman: Then a Professor of Public Policy at the Luskin School of Public Affairs, UCLA at Berkeley, Professor Kleiman engaged Commission members in discussion of the HOPE model of probation supervision and best practices in the sentencing of drug offenders.

• Professor Kevin Reitz: Professor of Law at the University of Minnesota Law School, Professor Reitz provided a national perspective on the work of other sentencing commissions and how Massachusetts can incorporate nationally recognized best practices into our sentencing guidelines model.

• Professor Richard Frase: Co-Director of the Robina Institute of Criminal Law and Criminal Justice, Professor Frase provided valuable insight on developing a safety-valve provision offering qualified offenders relief from mandatory minimum sentences.

• Commissioner Edward Davis (ret.): Former Boston Police Commissioner Davis presented Commission members with a law enforcement perspective on sentencing and best practices for promoting successful post-incarceration reintegration for offenders.

• District Attorney Daniel Conley: Suffolk County District Attorney Conley provided Commission members with a prosecutorial perspective on sentencing and crime control.

• Judge Nancy Gertner (ret.): A former Federal Judge, Gertner presented Commission members with her experience and perspectives in working with the federal sentencing guidelines.

In addition to participating in full Commission meetings, Commission members also serve on sub- committees. Detailed below is a brief synopsis of each sub-committee and the responsibilities and work they are engaged in:

• Community-Based Sanctions Sub-Committee: Focusing on innovative solutions to incentivize compliance with community-based sanctions, restructuring of supervision fees, community relations through outreach initiatives, and considering the implications of “zero-based” conditions of probation where every condition must be justified.

• Guidelines and Legislation Sub-Committee: Focusing on the development of a comprehensive sentencing guidelines model, one supported by data and grounded in research. Sub-committee members are actively debating and considering improvements designed to strengthen statutory criminal justice provisions.

• Outreach and Training Sub-Committee: Responsible for the coordination of public hearings as well as making recommendations to improve the web presence of the Commission. Further, sub-committee members are also responsible for the development of training resources and for providing technical support to guidelines users at the local court level.

• Research and Data Sub-Committee: Responsible for the review and approval of all research related requests, including the development of information sharing protocols. Sub-committee members also serve as a review board to monitor any mutually agreeable external research projects the Commission engages in. Further, sub-committee members may analyze sentencing data to monitor developing trends and rates of compliance and departure from recommended sentencing ranges.

The Massachusetts criminal justice system is engaged in many initiatives that share the mission of, and parallel the work of the Commission. The Council of State Government’s Justice Reinvestment Initiative and the best practices in sentencing committees within the Trial Court are two such initiatives.

The Council of State Government’s Justice Reinvestment Initiative in Massachusetts is a significant cost-savings. Experts from the Justice Reinvestment Initiative will present these findings to a bipartisan task force that will debate and present these recommendations to the legislature. The cost-savings generated through these recommendations can then be reinvested in front-end programs designed to reduce recidivism. Currently, 24 states and 17 local jurisdictions throughout the United States participate in the Justice Reinvestment Initiative.

Led by Chief Justice Ralph Gants, working groups on best practices in sentencing are active in each court department with significant criminal jurisdiction. Committee members, which include judges, probation officers, prosecutors, defense attorneys and police chiefs, are tasked with the development and implementation of sentencing best practices specific to each of these court departments. It is the intent of these committees to develop a set of sentencing best practices to serve as a judicial decision making support tool, guiding judges in crafting individualized sentences that are consistent with best practices whenever possible.

Moving forward, the Sentencing Commission is developing data-driven policy recommendations and remains committed to collaborating with nationally recognized experts from the academic and legal communities. Given the diverse backgrounds of Commission members, significant differences of opinion on how to best improve sentencing in Massachusetts are unavoidable, and despite this, many Commission members are encouraged by a shared vision. This common vision is one that does not compromise public safety and scarce correctional resources, and seeks to reduce prison populations when consistent with public safety, to reduce recidivism, to enhance the utilization of intermediate sanctions, and to support an economically sustainable correctional model. The Commission extends its sincere gratitude to the many local champions and nationally recognized leaders who have whole-heartedly endorsed and supported our mission as we work to bring evidence-based practices to sentencing policy in Massachusetts.

John Lu is a Superior Court justice and chair of the Massachusetts Sentencing Commission as well as an Adjunct Professor of Law at Boston University. He is the lead Superior Court judge for a Bureau of Justice Assistance-funded Demonstration Field Experiment of HOPE probation principles, a randomized control trial of supervision of high-risk probationers. Lu’s professional interests include criminal justice and sentencing innovation, leadership and management, and teaching.

Kevin Riley is a research analyst at the Massachusetts Sentencing Commission. A graduate of the University of Massachusetts Lowell, Riley’s professional interests include statistical analysis, geographic information systems (GIS) and economically efficient alternatives to justice system
intervention.


Making Sense of the Internet of Things

Lefkowitz_peterby Peter M. Lefkowitz

The Profession

We have seen the marketing. According to a recent report by a top consulting firm, the Internet of Things will have an annual economic impact of between $4 trillion and $11 trillion by 2025.  Another firm has announced that there will be 50 billion internet-connected devices globally by 2020.  And companies already have rebranded in grand fashion, declaring the arrival of “Smart Homes,” “Smart Cities,” the “Smart Planet,” the “Industrial Internet” (the contribution of the author’s company), and even the “Internet of Everything.”  We also have seen the reality of Fitbits that record our activity and suggest changes to our exercise and sleep patterns, cars that accept remote software updates, and airplane engines that communicate maintenance issues from the tarmac.  For all of this potential, and even greater claimed potential, our shared late-night admission is that none of us has a well-defined picture what, precisely, the Internet of Things is or does.

This combination of wide promise and shared confusion is not a trivial matter.  Companies are setting long-term strategy based upon Jetsons-like glimmers of the future; consumer expectations and fears are being set in an environment of rapidly-evolving offerings and — most critically for attorneys providing advice to clients considering investments in this area  — legislators and regulators are being asked to set legal and enforcement frameworks without a clear picture of the future product landscape or whether products still in their infancy will create anticipated harm.  In order to advise properly in this area, and to avoid regulatory frameworks getting far ahead of actual product development, it is important that lawyers appreciate the scope of Internet of Things technology and the policy implications of internet-connected goods and the data they create and use.

So what is the Internet of Things?  Simply put, the Internet of Things, or IoT, is a set of devices that connect to and send or receive data via the internet, but not necessarily the devices people most often think of as being connected to the internet.  In the consumer world, IoT includes smart meters that measure home energy use, refrigerators that can report back on maintenance needs or whether the owner needs more eggs, and monitors that can record blood sugar results and communicate via Bluetooth to a connected insulin pump.  It also increasingly includes cars that sense other cars in close proximity and record and report on driver speed, location and music listening choices.  And in the industrial space, offerings include an array of sensors and networks that measure and manage the safety and efficiency of oil fields or the direction, speed and service life of wind turbines and airplane engines;  X-ray and CT machines with remote dose monitoring; and badge-based radio-frequency identification systems that analyze whether medical providers are washing their hands in the clinical setting and the resulting impact on infection rates.  This definition generally does not include computers, tablets and other computing devices, although — with smartphone apps advancing to the point of measuring movement and heart rate and reading bar codes to compare prices at local retailers — one could argue that the iPhone and Android phone are the Swiss Army Knives of personal internet-based data collection and use.  In turn, IoT devices generate large sets of sensor-based data, or Big Data, which can be aggregated and analyzed to generate observations concerning the world around us and to improve products and services in healthcare, energy, transportation and consumer industries.

These developments have not been lost on government.  The White House has commissioned two major studies on the potential of Big Data.  The Federal Trade Commission held a full-day workshop to discuss IoT in the home, in transportation and in healthcare, and FTC staff subsequently issued a comprehensive report discussing benefits and risks of IoT.  Branches of the European Commission are encouraging companies to establish European research and development footholds for internet-based devices.  The European Commission noted the development of internet-based devices and the prospect of a Digital Single Market as inspirations for the anticipated replacement of the European Data Privacy Directive.  And European Data Protection Commissioners have boldly asserted their authority, declaring that in light of the risk presented by sensor-based devices, “big data derived from the internet of things . . . should be regarded and treated as personal data” under European data privacy law.  Unfortunately, the Commissioners did not distinguish industrial uses such as wind turbines and oil wells from consumer goods that actively collect personal information.

The FTC report above summarizes many of the practical and policy challenges presented by emerging IoT technologies and the views of advocates for industry and consumers.  Security is, for many, the most compelling issue.  Internet-connected devices must collect data accurately; those data sets need to be communicated securely to data centers; and devices and back-end computing systems need to be protected against hackers, both to protect the data collected from devices and to protect the networks and devices against hijacking.  Recent stories of rogue engineers using laptops to break into parked cars and controlling car brakes remotely, and the dystopian nightmare of a hacked pacemaker on the TV drama Homeland, have not helped mitigate these concerns.  This risk is compounded by the prospect of “big data warehouses” that can store and analyze zettabytes of data in support of technological breakthroughs.

Separately, there is the question of notice and consent for the collection and use of IoT data.  As the FTC staff report notes, it is significantly easier to provide notice about a company’s data practices on a computer screen than on a piece of medical equipment or in a friend’s car that already is collecting and reporting a wide array of data.  This problem is compounded in industrial settings, for example, where passenger weight is analyzed to optimize airplane engine function, or where data sets from and surrounding an MRI machine are communicated to the hospital network to read the scan and to the device manufacturer to facilitate maintenance and product improvement.

Other questions abound.  Will data from an internet-connected device be used for unanticipated purposes, such as devising large consumer medical or credit reports, without the consumer having the ability to know what is being done or how to correct or delete data?  Will providers use data to discriminate improperly, or will better use of data create a more level playing field, facilitating new services at lower prices for a wider swath of consumers?  And are some issues already addressed by current regulatory frameworks like HIPAA or the Fair Credit Reporting Act, related standards like the Payment Card Industry security rules, or extensive regulatory frameworks governing security and data use for government contractors, transportation providers and energy providers?

In turn, certain baselines have emerged.  First, “security by design” and “privacy by design,” the practices of building security and privacy protections into the development lifecycle of goods and networks, are essential.  These requirements become even more compelling in light of the recent decision of the Third Circuit in FTC v. Wyndham Corporation Worldwide, holding, among other things, that the FTC has authority to bring claims alleging “unfairness” for a company’s purported failure to properly secure networks and data.  Second, companies collecting data from IoT devices must carefully consider how much data they need and whether it can be de-identified to minimize privacy risk, whether the data will be aggregated with other data, and whether consumer choice is needed to make specific use of the resulting data set.  And in light of privacy and national security laws around the world — including recent data localization and national security laws in Russia and China — companies will need to evaluate where data is transferred globally and where to locate the associated databases and possibly even global computing, service and engineering staff.

Much of the promise and peril of the Internet of Things and Big Data are in the future.  Google and Dexcom, a maker of blood sugar monitoring devices, recently announced an initiative to make a dime-sized, cloud-based disposable monitor that would communicate the real-time glucose values of diabetes patients directly to parents and medical providers.  No date has been announced, although recent advances in remote monitoring suggest hope.  And the journal Internet of Things Finland recently published an article announcing the proof-of-concept for a “wearable sensor vest with integrated wireless charging that . . . provides information about the location and well-being of children, based on received signal strength indication (RSSI), global positioning system (GPS), accelerometer and temperature sensors.”

Thus far, rule-making has focused on security standards for connected devices and related computing networks.  The FDA has issued detailed security guidance for connected devices and systems, and the Department of Defense has issued security standards for contractors that include an expansive definition of government data subject to coverage under the U.S. Department of Commerce’s NIST 800-171 standard for protecting sensitive federal information.  However, there has not been a push in the U.S. for comprehensive legislation governing internet-connected goods and services.   As the FTC staff report explained: “[t]his industry is in its relatively early stages.  Staff does not believe that the privacy and security risks, though real, need to be addressed through IoT-specific legislation at this time.  Staff agrees with those commentators who stated that there is great potential for innovation in this area, and that legislation aimed specifically at IoT at this stage would be premature.”

The marketplace for internet-connected goods and services surely will continue to expand, and the product and service landscape will advance rapidly.  Whether we will see more than $10 trillion dollars of annual economic impact has yet to be determined.  In this fast-moving environment, companies considering investment in the Internet of Things and Big Data and the attorneys who advise them would be well served to monitor the evolving regulatory and legislative landscape.

Peter Lefkowitz is Chief Counsel for Privacy & Data Protection, and Chief Privacy Officer, at General Electric. Mr. Lefkowitz previously served on the Boston Bar Journal’s Board of Editors.


Massachusetts Grand Jury Primer: A Glimpse of Grand Jury Practice

Poulos_Lindaby Linda M. Poulos

The Profession

The right to be indicted by a grand jury in cases of capital and serious offenses is guaranteed under the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights. Grand jury proceedings have been the focus of national attention this past year.  Yet few people across this country understand how a grand jury functions. Further, grand juries vary from state to state in make-up, jurisdiction, and procedure.  Here in Massachusetts, grand jury practice strives to maintain the integrity and character of this essential component of our criminal justice system.

The grand jury occupies a unique and historic place in our jurisprudence.  See Jones v. Robbins, 8 Gray 329, 342-50 (1857); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009).  Comprised of citizens who sit independently and in secret, “the grand jury have the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.”   Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974).  Probable cause is reasonable grounds to believe that a crime has been committed by a certain person.  “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citations omitted).

In Massachusetts, the grand jury is comprised of twenty-three citizens.  A Superior Court judge, usually assisted by an Assistant District Attorney, empanels a grand jury every three months.  In Suffolk County the jury sits four days per week for the entire three months.  Though some employers pay for all jury service, most will pay only the required first three days of service after which the State will pay fifty dollars per day. Using individual voir dire, the judge inquires of each potential juror on the issues of hardship and impartiality.  Finding fair and impartial grand jurors who can commit to this three month schedule under these financial conditions is difficult, and empanelment usually takes two days.  Once twenty-three jurors are chosen, the court will administer the Grand Jury Oath, G.L. c.277, §5. The Judge follows with the traditional instruction explaining briefly the duties and responsibilities of grand jurors, and then remands them to the care of the prosecutor to begin their work.

The District Attorney oversees the presentation of cases to the grand jury.  The prosecutor’s unique access to the police and the victims and witnesses of crimes provides a practical avenue to presenting cases in grand jury.  The grand jury meets in secret.  The witnesses and evidence that come before it are not disclosed to anyone during the pendency of any investigation.  In fact, jurors are forever bound by the secrecy requirement. The grand jury serves both a screening and an investigative function.  The grand jury will hear cases for which an arrest has been made to determine whether an indictment should issue, and will also conduct complex investigations into alleged crimes for which no arrest has been made.  Standard cases range from simple gun and drug possessions to physical assaults and robberies, from sexual assaults and child abuse to shootings and homicides.  A case cannot proceed to Superior Court for trial unless a grand jury has returned indictments.

Typically, the Assistant District Attorney will present evidence through the testimony of sworn witnesses, supplemented with physical evidence.  All evidence is obtained through grand jury subpoenas.  Physical evidence can take many forms: photographs, surveillance video, recorded statements, drug and gun certificates, medical and other business records.  All witnesses summoned before the grand jury are entitled to be represented by an attorney.  Witnesses who refuse to testify or otherwise assert a privilege will appear with counsel before a judge for a hearing on that issue. If the judge determines that the witness has a valid claim of privilege, the judge will excuse the witness from testifying.  Only the grand jurors, the prosecutor, the witness, and a stenographer, lawyer or interpreter are allowed to be present during testimony.  All testimony of witnesses is recorded and transcribed into grand jury minutes and these are later provided as part of a discovery package to an indicted defendant.

The evidence required for a grand jury to indict is “considerably less exacting” than the evidence required for a petit jury to find guilt at trial. Commonwealth v. Walczak, 463 Mass. 808, 817 (2012).  See also Riley, 73 Mass. App. Ct. at 726.  The rules of evidence are relaxed during grand jury presentations. Leading questions are allowed, and hearsay is permissible. Grand jurors have the opportunity to question witnesses.  In furtherance of their duties, grand jurors may request the Court to order witnesses or potential targets to provide DNA samples, fingerprints, or even participate in lineup procedures.  This evidence assists the jurors in making the ultimate finding of probable cause, and may exculpate or inculpate a potential target.  Grand jury practice has developed over time to now afford the grand jurors a fuller and more complete review of the evidence.  While once a single police officer may have been sufficient to establish probable cause, the current practice is for grand jurors to hear most of the percipient witnesses and to receive corroborative evidence, and such exculpatory evidence as is available.

The other major role of the Assistant District Attorney is to serve as a legal advisor to the grand jury.  See Walczak, 463 Mass. at 823-24, 840-41.  Traditionally prosecutors instruct on and explain the law whenever appropriate, necessary, or requested by the grand jurors.  Id.  The Court, however, does not require instruction unless specifically requested by the grand jury.  Commonwealth v. Noble, 429 Mass. 44, 48 (1999).  Recently, the Court carved out an exception to this longstanding rule.  In cases where the prosecutor seeks to charge a juvenile defendant with murder and where, apart from any claim of lack of criminal responsibility, there exists substantial evidence of mitigating circumstances or defenses — e.g. that the defendant acted in the heat of passion based on reasonable provocation or sudden combat — the prosecutor must instruct the jury on the elements of murder and the legal significance of this evidence on the record.  Walczak, 463 Mass. at 809.  In Suffolk County, as a case comes before the grand jury for the first time, the prosecutor will define the elements of the potential crimes and applicable legal concepts using standard jury instructions and case law.  Once a jury has been instructed on a specific charge or concept, they will receive subsequent instructions as requested or needed. Before voting any charge, the grand jury has received all applicable instructions of law.

At the conclusion of the evidence, the prosecutor will ask the grand jury to vote on a charge or charges.  The jurors deliberate in secret, and the prosecutor is not present.  For each crime, the jurors must determine if there is probable cause to charge a certain defendant.   If the Commonwealth presents sufficient evidence to meet the standard of probable cause, it is the duty of the juror to vote in favor of a true bill or indictment.  In order to true bill a charge, twelve or more grand jurors must vote to support the indictment.  If fewer than twelve jurors vote to support a charge, the result is a No Bill, that is, no indictment.  Although twenty-three members make up a whole grand jury, a minimum of thirteen need be present to have a quorum.  In all cases at least twelve jurors must vote to return a true bill or indictment.  The foreperson signs the indictments on behalf of the grand jury and returns these indictments to the Court.

Ultimately, the Court oversees and reviews the grand jury process.  At any time, the jurors may request instructions from a judge.  For the most part, the legal requirements and responsibilities placed on prosecutors in grand jury have been simple and straightforward.  In order to sustain an indictment, the evidence presented to the grand jury must establish probable cause.   McCarthy, 385 Mass. at 163.  The prosecutor also has a duty to uphold the integrity of the grand jury process and provide significant exculpatory or other mitigating evidence that would influence the grand jury’s decision to indict.  Commonwealth v O’Dell, 392 Mass. 445, 451 (1984); Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986).  Upon meeting these requirements, an indictment will survive most challenges.

The public would be impressed with the commitment demonstrated by the members of the grand jury.  From the moment they take their oath to the end of the three months of service, the jurors work hard to be fair and impartial, fulfilling their solemn responsibility to properly charge individuals with crimes and to uphold their obligation to serve and protect the citizens of this Commonwealth.

 

Linda Poulos is an Assistant District Attorney with the Suffolk County District Attorney’s Office. She has been the grand jury coordinator for the last 15 years.


Massachusetts Lobby Law: Five Years Later

Fierro_Benby Benjamin Fierro III

The Profession

On January 1, 2010, the most sweeping reform of the state’s lobbying law since the early 1990s became effective. As was the case with past reforms, the Legislature was spurred to action by allegations of corruption and unethical behavior by some elected officials and others. The enactment of Chapter 28 of the Acts of 2009, which also amended the state’s campaign finance and ethics laws, was intended to address perceived shortcomings in those laws.

Of particular interest to attorneys are the changes to the state’s lobbying law (G.L. c. 3, §§39-50). That’s because activities previously thought to be the practice of law might now be considered lobbying.

What Is a Lobbyist?

A lobbyist is a person who for compensation or reward engages in lobbying, which includes at least one lobbying communication with a government employee made by said person. To be considered a lobbyist, an individual must be paid for engaging in lobbying activities. However, a person’s compensation, whether salary or fee, need not be specifically allocated to lobbying for that individual to be considered a lobbyist. “Compensation” also includes any additional employee benefits, such as an equity interest in an organization, health insurance, pension contributions, life insurance or commuter benefits. See Lobbying Advisory Opinion 10-16, Secretary of State’s Advisory Opinion.

“Executive Lobbying” and “Legislative Lobbying”

The Statute recognizes two types of lobbying activities. “Executive lobbying” is “any act to promote, oppose, influence, or attempt to influence any officer or employee of the executive branch or an authority, including but not limited to statewide constitutional officers and employees thereof, where such decision concerns legislation or the adoption, defeat or postponement of a standard, rate, rule or regulation . . . or any act to communicate directly with a covered executive official to influence a decision concerning policy or procurement.”

“Legislative lobbying” is “any act to promote, oppose, influence or attempt to influence legislation, or to promote, oppose or influence the governor’s approval or veto thereof, including the introduction, sponsorship, consideration, action or non-action with respect to any legislation.”

The definitions of “executive lobbying” and “legislative lobbying” also include any act to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with lobbying at the state level. An attorney who testifies on behalf of a client before a city council in support of a home rule petition that requires the approval of the Legislature, and who later attends a meeting with a state representative on that petition, would be engaging in lobbying.

Excluded from the definition of “executive lobbying” is providing written information in response to a written request from an officer or employee of the executive branch or an authority for technical advice or factual information regarding a standard, rate, rule, regulation, policy, or procurement. Similarly, “legislative lobbying” excludes providing written information in response to a written request from an officer or employee of the legislative branch for technical advice or factual information regarding any legislation.

What activities constitute lobbying was among the most significant of the changes to the law. The term “lobbying” is no longer limited to  direct communication with a covered public official. It was expanded to include “strategizing, planning and research if performed in connection with, or for use in, an actual communication with a government employee.”

The terms “strategizing,” “planning” and “research” are not defined in the law but could easily ensnare an attorney. “Strategizing” and “planning” might encompass advice to a client on how a proposed law, rule, rate, regulation or policy may affect its interests and development of arguments that are used by the client to influence a government official. “Research” would include a legal analysis of comparative statutes from other states that is used by a client to advocate for the enactment of similar legislation. Drafting legislation or  testimony to be given to a government employee would constitute lobbying.

While an attorney might engage in the aforementioned lobbying activities for compensation, he or she does not have to register as a lobbyist unless those activities are accompanied by at least one lobbying communication by that attorney. And, even if an attorney does have one lobbying communication with a public official, he or she may nevertheless be exempt from registering as a lobbyist if the lobbying is only “incidental,” as explained below.

Exemption for “Incidental Lobbying”

The Statute has long provided an exemption from lobbyist registration requirements under certain circumstances—even if the activity an individual engages in fits the definition of “lobbying.” However, the reduction in scope of this so-called “safe harbor” provision is especially noteworthy.

Prior law exempted an individual from lobbyist registration if that person engaged in lobbying for not more than 50 hours during a six-month period or received less than $5,000 for such services during that period, because in that case the person’s  lobbying was presumed to be incidental to his or her regular and usual business or professional activities. This provision exempted many lawyers who were not full-time lobbyists.

Chapter 28 narrowed the incidental lobbying exemption so that it now applies only to persons who were engaged in lobbying for not more than 25 hours during a six-month period and who received less than $2,500 for such services during that period. To be presumed to have engaged in “incidental lobbying,” an individual must meet both conditions. The law is silent as to whether this presumption is absolute or rebuttable.

Exemptions for Executive Lobbying

The Statute provides that certain communications with an executive official regarding a matter of “policy or procurement” are exempt from the definition of “executive lobbying.”

“Policy” is defined as a plan or course of action which is applicable to a class of persons, proceedings or other matters and which is designed to influence or determine the subsequent decisions and actions of any covered executive official. It does not include the adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis, such as the issuance or denial of a license, permit, or certification or a disciplinary action or investigation involving a person.

Thus, preparing, submitting and negotiating agreements regarding public benefits such as grants, tax credits or other economic incentives would not constitute “executive lobbying.” In addition, meeting with state officials on behalf of a client to secure a permit or negotiating and drafting permit conditions would also not be lobbying.

However, an attorney’s representation of a client seeking a license or permit could become “executive lobbying” under certain circumstances. Consider the case of a lawyer representing a developer seeking a state permit. While the state agency might be supportive of the project, its regulations may prohibit it from issuing the permit. If the attorney proposes a change to the regulations that would both further the agency’s goals and allow the permit to be issued, such advocacy by the attorney, including the drafting of an amendment to the regulations, would constitute “executive lobbying.”

The exemptions from the definition of “executive lobbying” include the following: (a) A request for a meeting, the status of an action or any similar administrative request; (b) An act made in the course of participation in an advisory committee or task force; (c) An act required by subpoena or civil investigative demand; (d) A communication made with regard to a judicial proceeding or a criminal or civil law enforcement inquiry, investigation or proceeding; (e) An act made in compliance with written agency procedures regarding an adjudicatory proceeding; (f) An act made on behalf of an individual with regard to that individual’s benefits, employment or other personal matters; (g) A response to a request for proposals or similar invitation for information relevant to a contract; (h) Participation in a bid conference or an appeal or request for review of a procurement decision. “Procurement” is defined as the buying, purchasing, renting, leasing or otherwise acquiring or disposing, by contract or otherwise, of supplies, services or construction or the acquisition or disposition of real property or any interest therein; but not including any item of expenditure the value of which is $25,000 or less.

Statutory Obligations and Limitations of a Lobbyist

A registered lobbyist must comply with a number of statutory requirements, including: filing an annual registration statement with the Secretary of State; completing an annual in-person or on-line seminar on the lobbying law; paying an annual filing fee; and filing semi-annual disclosure reports. Those disclosure reports must provide an itemized statement of expenditures and campaign contributions by the lobbyist and a detailed statement of the lobbyist’s activities, including identifying all matters acted upon, the name of each client and the amount of compensation received.

Among the more controversial aspects of Chapter 28, was a new requirement that lobbyists disclose “all direct business associations with public officials.” The Secretary of State maintained that because a lobbyist is doing business when he or she contacts a legislator in an attempt to influence legislation, those communications create a “business relationship” between the two that required disclosure. A diverse group of lobbyists challenged the secretary’s interpretation as wrong as a matter of statutory interpretation. On February 1, 2013, Judge Janet Sanders entered judgment in favor of the plaintiffs finding that the law required only that lobbyists disclose any financial or commercial relationships with a government official. See Gibbons, et al v. Galvin, (No. 12-3278, Suffolk Superior Court).

Registered lobbyists are prohibited by law from entering into contingent fee arrangements for their services as a lobbyist, giving any gift or paying for any meal or beverage consumed by a public official or employee, and making a political contribution to any one candidate for state, county or municipal office in excess of $200 annually.

Statutory Obligations of a Client of a Lobbyist

A client retaining the services of a lobbyist is required to file an annual registration statement with the Secretary of State and semi-annual disclosure reports. These reports must list all expenditures incurred or paid separately by the client during the reporting period in connection with its lobbying activities. These expenses would include lobbying services provided by an attorney, even if the attorney did not meet the statutory definition of a lobbyist or was otherwise exempt from registering as a lobbyist.

Advisory Opinions

An attorney who is unsure whether his or her representation of a client might be considered lobbying should seek an advisory opinion from the Secretary of State. An opinion, unless amended or revoked, is a defense in a criminal action brought pursuant to the lobby law and is binding on the Secretary of State, the Attorney General or the District Attorney in any subsequent proceedings, subject to certain conditions.

Conclusion

Now more than five years later, there is little doubt that Chapter 28 has swelled the ranks of registered lobbyists–including many lawyers who in the course of their practice usually don’t walk the halls of the State House.  Lawyers who are representing clients in matters that bring them in contact with legislators or state government officials should carefully review the Statute to ensure they are in compliance with the law.

 

Benjamin Fierro III is a partner in the firm of Lynch & Fierro LLP, Counsellors At Law. He has more than 30 years experience in the field of legislative, regulatory and public policy law. In 1995, he served on the Boston and Massachusetts Bar Association Ad Hoc Committee on Amendments to the Lobby Statute.


Facilitating the “Fresh Start”: Representing Pro Bono Bankruptcy Debtors Through the Volunteer Lawyers Project

by Meg McKenzie Feist and Megan B. Felter

The Profession

Feist_Meg Felter_MeganOur potential client is visibly nervous as we show her to the conference room where we will hold an initial meeting to discuss her financial situation.  She looks alternately at us, the view out the window, the stack of invoices and bills she has brought with her, and her cell phone, which vibrates periodically to announce yet another creditor collection call.  Following introductions, we ask simply, “What brought you here?”  She is taken aback for a moment, obviously unused to the opportunity to offer her story without interruption.  With some encouragement, however, she reveals the events and circumstances that brought her to our offices.  Listening carefully, we realize that finances are but one aspect of the difficulties in her life, which include mental and physical disabilities and a history of having been physically abused.  Unable to work, she relies on government benefits and feels powerless beneath the weight of her debts.  By the end of the initial meeting, we have gathered the information necessary to determine whether we can represent her on a pro bono basis to consider debt relief, potentially through bankruptcy.  As we walk her to the elevators and shake her hand goodbye, it is clear that she already feels a sense of relief.  The rest is up to us.

The Volunteer Lawyers Project

Our experiences advising needy individuals on a pro bono basis with respect to their debt relief options under federal bankruptcy law have been deeply rewarding.  In the greater Boston community, there exists a great need for lawyers to volunteer this service.  Congress enacted bankruptcy laws to provide “honest but unfortunate” debtors with a “fresh start” from burdensome debts.  For individuals who cannot afford a lawyer, however, this relief may be beyond reach.  The Volunteer Lawyers Project (VLP) of the Boston Bar Association (BBA) facilitates access to justice by pre-screening and referring qualified individuals to a volunteer lawyer.  The lawyer advises the individual in considering bankruptcy relief typically under Chapter 7, which is a court-supervised procedure by which a debtor receives a discharge of debts after his or her “non-exempt” property has been liquidated to pay creditors.

Individuals in Need

A volunteer lawyer can usually expect a pro bono case to have certain common features.  First, most clients have very limited, often fixed, income.  Some may be relegated to sporadic or part-time work after having lost a more stable job.  Others may be forced to live on government benefits after becoming unable to work due to disability.  Second, most clients have very limited assets.  Typically, they do not own their homes and instead rent, sometimes with the assistance of a federal housing program.  Although some clients own cars, many instead rely on public transportation.  Indeed, in many cases, a client’s only assets may be clothing and household goods (e.g., bed, television, table, small appliances).  These limited assets will likely be deemed “exempt” in the bankruptcy—that is, the client will be entitled to keep them instead of being forced to sell them to pay creditors.  Finally, credit card debt is a common feature of most pro bono cases.  Unsurprisingly, clients with limited income often use credit cards to make purchases when they do not have sufficient cash.  Some clients may feel forced to use credit cards to pay for groceries at the end of the month or to cover unexpected expenses, such as car repairs.  When a client misses a monthly payment, late charges and interest can quickly turn a modest balance into an unmanageable burden.

How Can Lawyers Help?

A volunteer lawyer may be able to assist a low-income debtor in finding a way out of overwhelming debt.  At the initial meeting with the potential client, the lawyer must remember that the individual likely feels demoralized by his or her financial problems and anxious from creditors’ collection efforts.  In many instances, the lawyer can help the situation initially simply by listening respectfully to the individual’s story.

The first step in any potential pro bono engagement is for the lawyer to check conflicts.  Mindful of the high likelihood that a volunteer lawyer belongs to a law firm that in unrelated matters represents financial institutions who are creditors in the potential client’s bankruptcy case, the BBA in 2008 issued an ethics opinion analyzing conflicts in the unique context of bankruptcy.  The opinion has served to encourage the participation of attorneys from large law firms in the VLP program and should be reviewed by attorneys seeking pro bono bankruptcy opportunities.

Once retained, the lawyer helps the client determine whether bankruptcy is appropriate and, if so, what type of relief is needed.  At the outset, the lawyer must explain the benefits and burdens of bankruptcy.  While the central goal of bankruptcy is to obtain a discharge of debts, bankruptcy also provides the benefit of the “automatic stay,” which is a federal injunction against all collection activity that takes effect when the petition is filed.  The stay provides a debtor with a much needed “breathing spell” while dealing with his or her financial affairs.  On the other hand, once a client obtains a Chapter 7 discharge, he or she is prohibited from obtaining additional Chapter 7 relief for the next eight years.  Additionally, the bankruptcy filing can remain on a client’s credit report for up to ten years.  Finally, some debts (e.g., taxes and student loans) are difficult to discharge in bankruptcy.

The lawyer must also counsel the client in selecting the appropriate type of bankruptcy relief.  Under Chapter 7 of the Bankruptcy Code, a debtor’s “non-exempt” property is liquidated to pay creditors.  In contrast, under Chapter 13 of the Bankruptcy Code, a debtor has the opportunity to protect his or her “non-exempt” property from the reach of creditors by paying defaulted debts over time through a repayment plan funded by the debtor’s excess income.  Typically, a low-income debtor will opt for relief under Chapter 7 because the debtor does not have any “non-exempt” property to protect or because he or she does not have any excess income to fund a repayment plan.

Finally, the lawyer should be sensitive to the client’s non-legal concerns.  For an individual debtor, the moral implications or social impact of walking away from debts may weigh as heavily in his or her decision as anything else.  While there are no easy answers to these concerns, the lawyer should not underestimate their importance and should engage with the client in addressing them.

Following the decision to file bankruptcy, the lawyer helps the client complete and file the petition, which details the client’s assets, liabilities, income, expenses, and other financial information, and accompanies the client to the Section 341 meeting of creditors, at which creditors and the bankruptcy trustee are given the opportunity to ask the client questions before the bankruptcy court enters any discharge order.  The lifespan of a typical Chapter 7 pro bono case is three to four months from initial interview to discharge.

An Enriching Experience

In our experience, helping low-income debtors obtain a “fresh start” in their financial lives through debt relief is its own reward.  While we are happy to serve the community in this manner, we have also found that pro bono representation enriches our own experiences and careers.  Particularly for developing attorneys, pro bono representation provides an opportunity to increase substantive legal knowledge, to sharpen client counseling skills, and to gain exposure in the local legal community.  We are grateful for the VLP’s resources and support, which have afforded us these opportunities.

The BBA provides training for lawyers who would like to represent pro bono clients in Chapter 7 bankruptcy cases.  For more information on opportunities with the VLP, please visit www.vlpnet.org.

Meg McKenzie Feist and Megan B. Felter are associates in the Finance & Restructuring Group at Choate, Hall & Stewart LLP in Boston.