From the Trenches: The Criminal Defense Bar, Transparency, and Forensic Science

by Anne Goldbach and Nathan Tamulis

The Profession

Goldbach_Anne Tamulis_NathanWe are attorneys for the Committee for Public Counsel Services (CPSC).  As public defenders who specialize in forensics, we provide help and support to a multitude of criminal defense attorneys from all over the state.  Public defenders and private court-appointed attorneys call, visit, or email us with forensics questions in almost any area you can think of where forensics plays a role in criminal cases.

Last August, on a beautiful late summer day, we traveled to Devens, Massachusetts to participate in the five week training of a very large class of new public defenders.  Our regular work would be done in the early morning, during breaks, and in the evenings.  The day was proceeding well, with sessions on criminal defender practice, the right to counsel, court structure, and client relations.  Suddenly, the afternoon was disrupted by an important and startling announcement: Governor Patrick had ordered the immediate closing of the Department of Public Health (DPH) drug lab in Jamaica Plain!  Email was pouring in, the story was all over the web, and reporters were clamoring to reach us.  It was hard to imagine what sort of problems would justify shutting down the entire lab indefinitely.

We had been on alert about work coming from this drug lab since February, 2012 when we learned that a breach of protocol had occurred in June, 2011.  We had already advised the defense bar that it would be unwise to accept at face value assertions made by the DPH and  some prosecutors – that there had been only one minor breach of a clerical nature that hadn’t affected the accuracy or integrity of the drug analyses.  In short order, we learned that Colonel Alben of the Massachusetts State Police had announced that a chemist involved in testing drugs for thousands of cases from 2003 to early 2012 had breached procedures in the handling of evidence.  There was concern that people, many of them CPCS clients, were wrongly convicted on tainted evidence.  We were eager to find out what the chemist had done, what other problems existed at that lab, and what the authorities knew that we didn’t yet know.

MELENDEZ-DIAZ & THE NAS REPORT

In the chaotic days that followed, we scrambled to learn more and to advise defense attorneys about how to proceed.  In the midst of this, we realized that we were much better equipped to face the challenges of the drug lab scandal than we would have been just four years ago – thanks to a landmark Supreme Court decision and a comprehensive National Academies of Sciences (NAS) Report.

Until 2009, notarized certificates of drug analysis were sufficient to prove that a seized item was a controlled substance.  That changed when the Supreme Court handed down the decision Melendez-Diaz v. Massachusetts, which held that pursuant to Crawford v. Washington, certificates of drug analysis were testimonial in nature and drug analysts were necessary witnesses for purposes of the Sixth Amendment.  Thus, the Confrontation Clause of the 6th Amendment of the United States Constitution requires that defendants have the ability to confront and cross-examine drug analysts at trial.

This finding was complementary to another watershed moment in 2009 – the publication of the NAS Report, Strengthening Forensic Science in the United States: A Path Forward.  The NAS Report made wide-ranging recommendations in important forensics applications.  Justice Scalia quoted the NAS Report in Melendez-Diaz: “[f]orensic evidence is not uniquely immune from the risk of manipulation….. A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution.  Confrontation is one means of assuring accurate forensic analysis…”

Both Melendez-Diaz and the NAS Report advanced essential elements of our criminal justice system: transparency, accountability and scrutiny.  Melendez-Diaz underscored an important principle:  the Confrontation Clause protects more than the accused; it requires the system to demonstrate that it is an open and fair one, for every citizen can now see into the police car, into the laboratory, and into the courtroom.  Now we had the ability to question previously inscrutable chemists on the stand, and the NAS Report provided guidance for framing and directing our questions.   Now defense counsel was better equipped to fulfill the duty of scrutinizing forensic science in criminal cases to assure that it is fair and accurate.

This was to be an era of increased scrutiny of the drug labs, of their analysts, and their procedures, oversight, and documentation. This was to be an era of improved accuracy and reliability in forensic science.  Both the NAS Report and Melendez-Diaz recognized that in a vacuum, test results from analytical machinery can seem impeccably objective and unimpeachable.  But test results are only as good as the people who prepped the samples, maintained and calibrated the machinery, and utilized scientifically validated procedures to produce the results.

THE LAB

In the wake of the drug lab closure, we understood that the teachings of Melendez-Diaz and the NAS Report would be tremendously useful in fighting for our clients’ rights.  Moreover, they would help us learn how a lab scandal of this magnitude could happen.

Guided by these two milestones, defense attorneys recognized the importance of educating themselves in detail about technical aspects of drug analysis.  They sought the kind of discovery that would allow them to more closely scrutinize the basis of drug analysis and the people who conducted those analyses.  They asked for the written procedures, the documentation of equipment calibrations, and the chain of custody which should follow drug samples from the moment of seizure, through the laboratory, and their return to police custody.  They developed detailed cross-examination of the chemists who tested drugs in their clients’ cases.

As packages of discovery were turned over, a much clearer and astonishing picture of the lab started to emerge.  There were no written testing procedures, no training records, insufficient documentation, insufficient Quality Control and Assurance, lax supervision, and management woes.  The lab was unaccredited and unregulated by any third party organizations.  Problems went unaddressed for years.  One of these problems was Annie Dookhan.

Annie Dookhan was hired in November of 2003.  She began testing in earnest in January of 2004 and quickly took the lead by far in number of samples tested.  In 2004 and 2005 she performed three times the number of tests than her average co-worker, some of whom had years of experience.  This remarkable level of performance continued through her entire eight year career at the lab.  She became a mass spectroscopy chemist and also assumed responsibility for other tasks, including instrument maintenance and Quality Control and Assurance tasks.  She carried on, unchecked, until the June 2011 discovery of a “small” breach that ultimately led to the unraveling of the entire laboratory.  Some of the most alarming allegations thus far are that she falsified records and purposely contaminated drug samples.

GOING FROM SWIFT JUSTICE TO THE LONG HAUL

Months have passed, and the path to justice for our clients is shaping up to be a long march.  The task of identifying the hundreds to thousands of clients who have been affected is ongoing.  The drug lab scandal has affected so many people – those who are in custody awaiting trial, those who stand convicted on the basis of potentially tainted evidence and are serving sentences or are on probation and parole, and those who have completed their sentences.  On the basis of these tainted cases, people have been held in custody by immigration, or lost their jobs, public housing, drivers’ licenses, or even lost custody of their children.  The list goes on and on.

Courts are working to find ways to handle these cases.  Motions to withdraw guilty pleas and motions for new trials have been heard and will be heard.  In some cases, clients have obtained resolutions by way of pleas to lesser charges and more lenient sentences.  Other cases are moving to the Appeals Court and the Supreme Judicial Court as the District Attorneys challenge the authority of specially assigned magistrates and the allowance of some motions.  Calls from the defense bar for a unified, systemic solution have gone unanswered to date.

The NAS Report says “…. the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight.  These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.”  These were all serious problems at the DPH Drug lab, issues that allowed misconduct to go uncorrected for years.

As put forth by Melendez-Diaz, the heart of our adversarial system is confrontation and inquiry.  The defense bar will continue to ask questions of the analysts to see that justice is done for our clients.  Armed with the NAS Report, and a new appreciation for how forensics should properly be viewed by the courts, we will continue to fulfill our role as zealous advocates.  Proper advocacy by defense counsel is not only important to the rights of individual defendants but also essential to the proper functioning of our justice system. We will improve the system.

ANNE C. GOLDBACH is the Forensic Services Director for the Committee for Public Counsel Services. In this capacity, she acts as a resource on forensics issues and experts for public defenders and private counsel attorneys across the state.

NATHAN A. TAMULIS is a Forensics Support Attorney with CPCS.  He has many years of experience in the laboratory and uses that knowledge to assist defense attorneys with forensic issues.


Are In-Firm Communications About A Current Client Privileged?

by David A. Barry and William L. Boesch

The Profession

Introduction

Barry_DavidBoesch__WilliamIn the midst of a law firm’s handling of a case, a client announces that he believes the firm may have mishandled the matter and that he has retained separate counsel to evaluate the firm’s work. The client insists that the firm continue to handle the matter because withdrawing now would be prejudicial. He says that if the case turns out badly, he will seek indemnity from the firm for his losses.

The lawyers involved in the case turn to their colleagues for advice. They talk and exchange e-mails with the firm’s managing partner, and with others in the firm who have experience in the subject-matter of the case and in professional-liability matters. The managing partner requests a detailed memorandum explaining how the case was handled and why the now-disputed decisions were made.

If a malpractice lawsuit follows, are these in-firm communications privileged against discovery? The ongoing fiduciary obligation of a firm to a current client, and the potential for conflict between the firm’s own interests and those of a client who threatens a malpractice claim, have prompted judges in a series of cases to hold that in-firm communications such as those described in the example above are not privileged, even if conducted with the express purpose of seeking and obtaining legal advice about the client’s threatened claim. E.g., In re Sunrise Securities Litigation, 130 F.R.D. 560 (E.D. Pa. 1989); Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 220 F.Supp.2d 283 (S.D.N.Y. 2002); Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002).

This view, sometimes referred to as the “fiduciary exception” to the attorney-client privilege, was adopted by Judge Gorton of the District of Massachusetts in a 2007 ruling in Burns v. Hale & Dorr LLP, 242 F.R.D. 170, and by Judge Stearns in a brief 2011 decision in Cold Spring Harbor Laboratory v. Ropes & Gray LLP, 2011 WL 2884893.

The RFF Family Partnership Case

In a November 2012 decision, however, Massachusetts Superior Court Judge Thomas Billings joined what may now be a counter-trend in favor of recognizing a privilege for in-firm communications on current-client matters, at least under certain conditions. RFF Family Partnership, LP v. Burns & Levinson, LLP, 30 Mass. L. Rptr. 502 (Mass. Super. Ct. Nov. 20, 2012). See also, e.g., TattleTale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, 2011 WL 382627 (S.D. Ohio Feb. 3, 2011); Hunter, MacLean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 730 S.E.2d 608 (Ga. App. 2012).

Judge Billings’s decision produced an interlocutory appeal which the Supreme Judicial Court has taken for itself to decide (the case is SJC-11371) which as of this writing has been briefed and argued, and is under advisement. As we discuss below, Massachusetts lawyers will watch with interest to see whether the SJC uses this occasion to announce general rules on the subject of in-firm communications. Whether or not the Court does so, lawyers and firms may want to examine their procedures for responding to client disputes.

In RFF Family Partnership, the law firm handled a real estate loan foreclosure that produced a dispute over lienholder priority. The client retained a second lawyer, who sent a malpractice claim letter and draft complaint to the law firm, and demanded indemnification from any loss the client might suffer due to the firm’s alleged failure to detect, report and address the competing liens. The letter prompted an internal meeting at the firm between the lawyers involved in the matter and the firm’s managing partner.

When a malpractice suit was filed more than a year later, the firm took the position in discovery that the in-firm meeting was for the purpose of seeking the managing partner’s legal advice on how to respond to the potential malpractice claim. The plaintiff-client argued that even if this was so, the meeting occurred at a time when the law firm owed the client a fiduciary duty of disclosure as to facts material to the client’s interests, and that this fiduciary duty precluded the firm’s invocation of the attorney-client privilege.

Judge Billings’s Decision

In his November decision, however, Judge Billings observed that the fiduciary exception was originally developed to address situations in which a trustee sought legal advice, at the expense of trust beneficiaries, to guide the administration of a trust. Here, by contrast, the lawyers obtained legal advice at the firm’s own expense and solely for the firm’s protection.

Further, Judge Billings did not see any inherent inconsistency between a lawyer’s ongoing duty to disclose facts affecting the client’s interests—a duty that exists regardless of the lawyer’s decision as to whom, if anyone, to consult—and the reasons for encouraging a lawyer faced with a malpractice claim to seek the advice of another lawyer about how to evaluate and respond to the claim. Judge Billings reasoned that unless facilitating such advice-seeking is somehow perceived as likely to result in the involved lawyer’s deciding to conceal something from the client that he has a duty to disclose, there is no good reason to deny protection to the advice-seeking communications. Indeed, he suggested, it may be in the interests of the client as well as the lawyer that the latter be free to explore issues freely with competent ethics or professional-liability counsel, without the cloud of potential future disclosure.

Thus, the judge upheld in principle the law firm’s invocation of the privilege as to the in-firm communications to the extent they sought or gave legal or ethical advice. However, he found the firm’s discovery responses inadequately detailed and ultimately held that the firm had partially waived the privilege.

The Outside-Counsel Option

If the SJC decides to explore the boundaries of the in-firm privilege in the RFF Family Partnership case, the Court might, of course, adopt the absolutist view exemplified by the two federal decisions cited above, and hold that a firm’s obligations to its client simply bar any potential in-firm privilege. In that event, it will become critical for a firm faced with a potential malpractice lawsuit by a current client to consult with a specialist lawyer outside the firm, and to ensure that the firm’s lawyers understand when such consultation should supplant internal communications among colleagues. Engaging an outside lawyer provides a basis for clearly distinguishing between actually seeking legal advice about the threatened claim and merely discussing the matter as part of the business of running the firm. And since the outside specialist clearly owes no direct or imputed duty to the client, a claim of privilege will not be in tension with such competing obligations.

Establishing an In-House Counsel Role

If the SJC were to uphold Judge Billings’s decision, there may still be many situations in which, for the reasons given above, consultation with outside counsel is the more sensible response to a malpractice threat from a client. But assuming this is not an option for a firm, either in general or in a particular matter, then it will be critically important (under a regime in which in-firm communications may be protected) that the role of the in-house advisor or advisors be clearly pre-established and defined. The firm’s goal should be to give itself a solid basis for arguing that any potential conflict of interests for the lawyers involved in representing the client alleging malpractice should not automatically be imputed to the in-house lawyer or lawyers from whom the involved lawyers seek advice. Rather, the in-house lawyer should be treated as the functional equivalent of an outside attorney for the firm, with whom confidential communications would undoubtedly be privileged.

Large firms may have the ability to create a full-time in-house counsel position and to appoint in that role a lawyer who has no involvement whatsoever in representing the firm’s clients. Smaller firms may be able to establish the role only on a part-time basis, but should do so with similar formality, so that when the in-house lawyer is consulted about the threat of a malpractice claim, it is clear in what capacity her advice is being sought. Choosing a lawyer with particular experience and expertise in professional-liability or ethics matters, and/or providing opportunities for the lawyer to seek special training on such issues, may help to distinguish the role. Referring to the position on the firm’s website will also help to establish it as a matter of record.

Further Issues and Options

It may be useful, if it can be done gracefully, to refer to the in-house counsel role in a firm’s standard engagement letter, and to explain that lawyers in the firm may from time to time seek internal legal or ethical advice on a confidential basis. The in-house lawyer should have a designated matter number for recording her time spent on consultations and investigations, and no such activity should be recorded or billed by anyone to the client’s matter. Likewise, e-mail and other documents should, when created, clearly signal that they relate to the internal consultation or investigation rather than to the client’s matter itself, and strict segregation between the files should be maintained.

Mere creation of an in-house counsel position will not prevent practical difficulties; they are inevitable. For example, in the part-time arrangement likely to be suitable to smaller firms, since the in-house lawyer cannot be consulted as such where she herself is involved in representing the client alleging malpractice, one or more backup lawyers may need to be designated for such contingencies. And judgments will still have to be made as to when a particular issue leaves the realm of everyday conversation between colleagues, and graduates to the actual seeking of legal advice from in-house counsel.

Finally, whether consultation about a potential malpractice claim occurs within a firm or with outside counsel, the lawyer or lawyers involved in the ongoing representation of the client have an ongoing duty—one not altered by the fact of the consultation, or by whether or not it may ultimately be deemed privileged—to provide the client with information known by the involved lawyers that affects the client’s interests. The involved lawyers must also fairly assess and communicate with the client about whether and how they can continue with the representation given the threatened malpractice claim. Here again, this obligation is unaffected by whether or with whom the involved lawyers have consulted about the potential claim.

Conclusion

Yet despite these complications, and while Massachusetts lawyers will watch with interest to see whether the SJC uses the RFF Family Partnership case to provide guidance on this topic, it seems likely that attention to the concepts and formalities described in this article will continue to be important in ensuring that a lawyer threatened with a malpractice claim has an opportunity to seek advice about the threat, and to do so on a confidential and protected basis.

David A. Barry is a partner at Sugarman, Rogers, Barshak & Cohen, P.C., where he focuses his practice on complex litigation, including the defense of professional and products-liability cases. William L. Boesch is also a partner at Sugarman, Rogers. He represents lawyers and other professionals in malpractice cases and other matters, and litigates insurance and intellectual-property disputes.


Vexatious Litigation: A Vexing Problem

By Richard M. Zielinski

The Profession

Massachusetts courts continue to face difficult challenges.  Hampered by extended backlogs, severe budget cuts, and prolonged hiring freezes, our hard working judges and dedicated court staff struggle every day to efficiently manage and provide a high quality of justice in thousands of legitimate cases involving important financial, personal and societal issues. Their efforts are additionally burdened by vexatious litigants who seem to regard the courts as their own personal complaint departments. This Article discusses the problem and calls upon judicial, legislative and bar leaders to put their heads together in an attempt to devise both fair and practical solutions to the problem.

What is vexatious litigation and why is it a problem in Massachusetts?

Defining vexatious litigation is difficult because litigants’ motives – whether in filing lawsuits to harass or control another party, litigating claims that are not legally recognized, or manipulating the system for personal gain – are quite diverse. Some common threads among vexatious litigants, however, are clear: their filings are often numerous, their claims largely without merit, and they impose enormous burdens on the court system and those required to respond to their claims.

In a recent article on “frequent fliers” of the court system, Massachusetts Lawyers Weekly newspaper reported that it had identified more than 450 complaints, appeals or other requests for relief filed in Massachusetts courts over the past three decades that were traceable back to just six litigants. In one notorious series of cases, a plaintiff filed at least one hundred and fifty separate lawsuits, resulting in more than ninety appeals, against his former girlfriend after their relationship ended.  Ironically, a restraining order against that particular plaintiff failed to prevent him from using the judicial system to continue harassing the woman in question.  The plaintiff’s repetitive and groundless actions have also been admonished by the Supreme Judicial Court, which presided over five of the plaintiff’s appeals for extraordinary relief in a single day.  See Watson v. A Justice of the Boston Div. of the House Court Dep’t, 458 Mass. 1025 (2011).

Vexatious litigants also frequently turn their fire on judges, clerks, other court personnel and opposing counsel when cases are not resolved in their favor.  For example, one such litigant brought over three hundred complaints in several states against public officials, various courts and judges due to events arising out of a series of traffic violations.  See Azubuko v. McCabe, No. 1:108-CV-226, 2008 U.S. Dist. LEXIS 91798, at *1 (D. Mass. Oct. 27, 2008).  Such conduct imposes inappropriate personal burdens on court personnel, diverts resources and time away from legitimate disputes, and subverts the purpose and basic functioning of our justice system.  As the United States Supreme Court has noted in several per curiam decisions, “[t]he goal of fairly dispensing justice . . . is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests.” See In re Sindram, 498 U.S. 177, 179-80 (1989), In re Whitaker, 513 U.S. 1, 2 (1994), Whitaker v. Superior Court of California, 514 U.S. 208, 1447 (1995).

The Massachusetts courts and the Board of Bar Overseers have an array of weapons at their disposal that, for the most part, effectively deters lawyers from filing repeated, baseless lawsuits.  The problem of vexatious litigation, however, does not appear to be primarily lawyer-driven.  Instead, the vast majority of vexatious litigants are self-represented individuals, who need not be concerned about the spectre of Rule 11 sanctions or a complaint to the BBO.  Even in federal court, where pro se plaintiffs are subject to Rule 11 sanctions, many vexatious litigants are judgment-proof, thereby blunting both the deterrent and punitive effects of monetary sanctions.

 How Have Courts and Legislators Dealt with Vexatious Litigants?

Research suggests that Massachusetts courts and judges have inherent authority, rooted in common law, to take a variety of steps to curtail vexatious litigants.  For example, a judge has inherent authority to dismiss a suit that is frivolous or designed to harass, or as necessary to prevent a fraud on the court.  See, e.g., Munshani v. Signal Lake Venture Fund II, LP, 60 Mass.App.Ct. 714 (2004).

Another tool judges have at their disposal is the use of an injunction prohibiting a vexatious litigant from filing any new suit in a particular court.  Although reasonably effective in curtailing vexatious litigation, injunctions are problematic in two respects.  First, pre-filing bans curtail an individual’s constitutional right of access to the courts, so they should be used only when truly necessary and ordinarily should contain an exception allowing for the filing of a particular matter with prior judicial approval.  Second, a determined plaintiff can often avoid the effect of an injunction by simply filing suit in a different forum.  For example, one of the most prolific vexatious litigants in the Commonwealth avoided pre-filing bans in both Suffolk Superior Court and the United States District Court in Massachusetts by filing suits in courts stretching from New Jersey to Georgia.  See Azubuko v. Boston Public Schools, 2006 WL 1373161 (D.N.J. 2006); Azubuko v. Berkshire Mut. Ins., 2003 U.S. Dist. LEXIS 26768 (N.D. Ga. Oct. 22, 2003).  Unfortunately, Massachusetts does not currently have an effective administrative system in place to track problematic plaintiffs and enforce bans across its various divisions.

At least six states have enacted legislation to address the problem of vexatious litigants – California, Hawaii, Texas, Florida, Ohio, and Connecticut.  These statutes include remedies ranging from a bond requirement to cover defendant’s costs (not unlike the bond requirement in G.L. c. 231, s. 60B, the medical malpractice statute), to pre-filing orders barring vexatious litigants from filing additional suits without prior leave of court.

One challenge in drafting legislation is defining precisely what constitutes a vexatious litigant. In California, for example, a litigant is “vexatious” if he meets any one of a number of tests, including repeatedly re-litigating a claim after a final, adverse judgment; repeatedly filing unmeritorious motions; or bringing at least five suits (other than small claims suits) in the prior seven years that have been resolved against him or permitted to remain pending at least two years without justification.  Cal. Civ. Proc. Code § 391(b).  In Ohio, by contrast, a litigant is vexatious if she “persistently engages in vexatious conduct in a civil action,” regardless of whether or not she initiated the suit.  Vexatious conduct, in turn, is defined as behavior that either harasses another party, is unwarranted under existing law, or is designed to delay.  Ohio Rev. Code Ann. § 2323.52(A)(2).

Whether based on the number of lawsuits filed or the litigant’s motives or conduct any fixed, statutory definition of  “vexatious litigant” is bound to be both over as well as under inclusive when it comes to real world litigants.  Perhaps this problem can be overcome by leaving the issue of whether a particular litigant is or is not vexatious to be determined by an appropriate judicial officer on a case by case basis, applying a set of pre-determined but somewhat flexible statutory factors.

What more can and should Massachusetts do to address the problem?

Courts, legislators and commentators from around the country have not agreed on the most effective means of curtailing vexatious litigation.  But nearly all agree that the problem is real and continuing and, especially in difficult economic times, poses a genuine threat to the administration of justice and a cost to society.  I urge members of the judiciary, our state legislators, and the leaders of the organized bar to convene a task force or other group to further study the problem and formulate recommendations for how we might best address the problem in Massachusetts.

Richard M. Zielinski is a Director in the Litigation group of Goulston & Storrs, P.C.  He is also a past member of the Massachusetts Board of Bar Overseers, the Boston Bar Association Council, and a Fellow and past State Chair of the American College of Trial Lawyers (ACTL).  Richard wishes to thank Alana Van der Mude and Keerthi Sugumaran, associates at Goulston & Storrs, for their valuable assistance in researching and drafting this Article. 


20/20 on 2020: Predictions for the Future of Social Media and the Law

By David Kluft, Peter Lefkowitz, Martha Mazzone, Zick Rubin and Tom Hemnes

The Profession

This December marks the 10th birthday of the founding of Linkedin.com.  Next year, 2013, will witness the 10th anniversary of both the public launch of Myspace.com and the initial launch of Facebook (nee Facemash) at Harvard.  While the world celebrates the history of social media, the BBJ is taking a few moments to consider its future impact on the law.

To get the ball rolling, we solicited five leaders and practitioners in areas currently affected by social media to offer thought pieces containing their own predictions (or wild speculations) about how this phenomenon will affect the law in the future.  We asked them to use 2020 as reference year, but some of the predictions went a little further.

How do you think electronic social media will affect the future of your legal practice and the legal profession?  Please share your thoughts by commenting on this article in the space provided below (the Boston Bar Journal’s terms of use apply).

There is no wrong answer . . . yet.

Cyborg Evidence, by Dave Kluft

The technology exists in 2012.  Funded by commercial and military interests, universities and hospitals are developing neural interface systems using hardware developed for electrocorticography, electroencephalography and functional magnetic resonance imaging.  These technologies allow human brains to interface with computers by translating neurons into software commands.  By 2006, a subject at Brown University, using technology funded by the Department of Veteran Affairs, played computer Pong with his mind.  In 2012, paralyzed patients can employ neural impulses to direct a prosthetic hand to raise a coffee cup. The principal application of this technology is for severe epilepsy and spinal cord injuries, but the military also is developing “telepathy helmets.”

Application to consumer electronics follows. In 2012, effective neural interface technology requires invasive implants.  By 2017, these can be replaced by headsets and earpieces.  In 2018, the Wall Street Journal reports that social media companies have been making substantial investments in portable non-invasive cyborg technology.

In 2020, a neural interface social media site is beta tested.  Users are able to share simple binary thoughts (e.g., Like/Don’t Like). By 2025, more advanced software allows the recognition of more complete thoughts. Many users allow their thoughts to be transmitted contemporaneously. By 2028, new software translates visual stimuli received by the human retina into rough still images: a user’s perception of a dog is recorded and published as a stock image of a dog. Further refinements allow recognition of the dog’s breed and individual characteristics. By the end of the decade, old-fashioned social media updates give way to cloud-stored virtual records of thoughts and images. By 2035, if you are under 30, Facebook is something your parents used to use.

Early attempts to admit cyborg evidence recorded by social media are barred.  Despite Section 901(b)(11) of the Mass. Guide to Evidence and similar rules providing that expert testimony is not necessary to authenticate digital communications, Judges initially demand onerous expert testimony and doubt the accuracy of the technology.  As neural interfacing becomes more widely  accepted, however, accuracy and security concerns fade.

Cyborg evidence is first considered in non-jury civil contexts.  In 2039, it serves as part basis for a spoliation ruling in a New Jersey state court, in which a product liability defendant who was wearing a neural interface when he deleted a folder is shown to have had knowledge that relevant documents were contained in that folder.  Cyborg evidence is later admitted in other circumstances, and the arguments against its admission shift to hearsay.  Many courts admit cyborg evidence as a present sense impression. Massachusetts courts, which do not recognize the present sense impression exception, cite the excited utterance and past recollection recorded exceptions.

In 2050, in a matter of first impression, the Massachusetts Supreme Judicial Court is asked to decide whether the final thoughts of a vehicular homicide victim, captured by a social media neural interface, are admissible as a statement made under belief of impending death.  The 130-day period has been waived twice. The defendant, citing Confrontation Clause concerns, plans to appeal to the Supreme Court if the admission of the evidence is upheld.

The Regulatory Landscape, by Peter Lefkowitz

The turning point came in 2015.  In the preceding five years, newspapers had covered the social media industry in ever-greater detail; the Federal Trade Commission had issued new notice and consent requirements for web tracking and limits on use of social media to evaluate employment and credit; a number of social media services had been fined heavily for altering privacy terms without notice and for over-collecting, over-enriching and over-using data; and the European Union had issued regulations governing use of cookies and other tracking technologies.  The real change in the landscape, and the real cause for celebration, was that privacy finally became cool.

After several high profile cyber-attacks, privacy became the product and service differentiator for consumer technology.  Browsers were released that allowed consumers to easily surf the web without extensive tracking by individual sites and ad networks.  Computers, phones, tablets, and hybrid computer-phone-tablets arrived on the doorstep with encryption enabled and no passwords stored by default, and credit cards came with pictures, PINs and various means of confirming identity at check-out.  The “Don’t Let Them Find You” advertising campaign ran six times during the Super Bowl, featuring a husband and wife hiding out in their garage, cell phone SIM cards removed, until their new Privacy Phones arrived and they could re-emerge into the sunlight.

The phenomenon was not lost on social media providers.  Having lost valuable traffic, revenue and market cap because consumers feared “being the product,” providers made a point of advertising the information they did not collect and the data they did not share.  Web pages for pharmaceutical products carried banners advertising that they would not track visitors.  Registration pages provided clearly marked options for collecting and sharing information.  And surveys found that consumers signed up for social media services based overwhelmingly on how much they trusted the service provider.

Having become cool, privacy was able to take a short vacation.   Consumers decided once again that they wanted advertising and coupons for their favorite food and their needed drugs and felt empowered to store healthcare and banking data on their cell phones, with greater assurance that leaving a phone in a taxi wouldn’t upend their personal lives.  Consumer technology companies and service providers made sharing information progressively easier (by providing common formats for consumer decision-making) and more lucrative (by openly sharing the benefits of data collection with consumers).   Health care and other scientific fields benefitted from the ability to use “big data” for clinical research.   And regulators shifted their focus back to hackers, phishers, spammers, scammers and other ignoble creatures.

Perhaps most critically, privacy officers became extremely cool.  Their focus shifted from defending against increasingly aggressive regulation and avoiding the next breach to designing privacy features into products.   CPO’s found new allegiance with their development and sales teams, and their budgets grew as they became integral to the design and release of new products across technology, social media and consumer industries.  Admittedly, the latter trends only began to take hold late in the review period and will be covered in greater depth in the follow-on article of 2030.

Landmarks in Copyright Law, by Zick Rubin

January 14, 2014:  After Twitter introduces a simple online copyright application process with PayPal payment options, the Copyright Office receives 14 billion applications to register tweets and begins to collapse under the load. The Office issues a new regulation providing that works containing fewer than 141 characters will no longer be eligible for copyright registration.

February 14, 2014:  Under pressure from Twitter and its users, the Copyright Office rescinds its “No Tweet” regulation.  Twitter supporters point to nursery rhymes, haikus, and aphorisms containing fewer than 141 characters, including Poor Richard’s pithy “He that lies down with Dogs, shall rise up with fleas.”

June 27, 2016.  The Affordable Idea Sharing Act of 2016 is signed into law by President Clinton.  The Act requires all citizens between ages 12 and 80 to make at least one “bona fide” post each week that is dedicated to the public domain, or they will be presumed legally incompetent.  “We all have great ideas,” the President writes in her signing message, “and we have a duty to share them with our friends.”

May 2, 2018.  In a case of first impression, the First Circuit holds that John Peebles infringed Maurice Schwartz’s copyright when Peebles copied Schwartz’s Match.com on-line profile, including his “favorite sports team,” “favorite recording artist,” “astrological sign,” and “favorite color.”  The court concludes that “Schwartz’s favorites – Red Sox, Springsteen, Capricorn, and blue – constituted a protectable compilation with the required minimal level of creativity, though just barely.”

December 9, 2019.  The Republic of Montenegro declares that it owns all content posted on the .me top-level domain, which has been assigned to Montenegro by ICANN (the Internet Corporation for Assigned Names and Numbers), including ask.me, tell.me, and click.me.

January 3, 2020.   The South Sea island nation of Tuvalu declares ownership of all content posted throughout the world on the .tv top-level domain, , including abc.tv, pbs.tv, and mtv.tv.

January 12, 2020.   In retaliation for Montenegro’s and Tuvalu’s “Internet imperialism,” Craigslist founder and customer service representative Craig Newmark announces that Craigslist Podgorica and Craigslist Funafuti have been taken off-line.

June 2, 2020.  In a long-awaited decision, the Supreme Court upholds the constitutionality of the Affordable Idea Sharing Act of 2016.  The Act had been challenged by an order of Trappist monks bound by a vow of silence.  “They have a First Amendment right not to speak,” Justice Michelle Obama writes for the five-justice majority, “but that doesn’t mean they have a right not to text.”

Email: So 2000 and Late, by Marty Mazzone

It’s 2020.  If 2012 was the dawn of social media as evidence in litigation and investigations, it’s high noon now.   And you are Marshal Kane, facing down the discovery enemy: highly connected, complex “awareness” systems incorporating movement, touch, and location feedback, non-computer instant messaging, video and speech, and more – all, by the way, located in the one cloud above Hadleyville (the dusty Western town in the movie).  After the geniuses at MIT developed and commercialized Blossom, the now-ubiquitous multi-person awareness system (http://www.media.mit.edu/research/groups/fluid-interfaces) in 2014, the very conceptual framework of communication changed.  The legal system still depends on the information in the new awareness systems, but how to get it, preserve it, extract it, read it?  That is the challenge.

We have been here before.  The discovery and authentication concerns of 2012 seem almost quaint now but at the time, with the introduction of social media as a primary source of business as well as personal communications, lawyers actually longed for the goold old days of email.   After all, technology races ahead, but the job of a litigator does not change much.  Litigators tell stories to fact-finders, decision-makers and opponents.  They extract support for those stories, in large part, from the records people leave behind.  Where are people, especially younger people, leaving their records today?  No longer in paper correspondence trails, where the story is straightforward – a simple discovery challenge.  Further, although even today in 2020 litigators do not suffer from a dearth of stupid emails, still we find many fewer stories in email.  When we did find them there, we had the tools (even since before 2012) for extracting stories from email: an arsenal of email review, clustering, threading, and analytical software plus an entire professional discipline and infrastructure called eDiscovery.

At that time, though, the social media revolution became a very real legal challenge.  Facebook (bought out by Google in 2014 but a very popular beginner social media site back in the day), MySpace ( anyone remember MySpace?) and something called Twitter (where anyone could express important or, more usually, vapid thoughts), were used by hundreds of millions of people daily.  In Feburary 2012 Facebook reported 845 million active users., and Twitter at the time had over 200 million active users.  Not only were people telling and leaving their stories in these virtual places, they were telling and leaving a LOT of them.  How to get at these stories and tell them in meaningful ways became the focus of the electronic discovery world, while trial lawyers had to figure out how to connect the stories, often anonymized, to the parties in a dispute – how to authenticate them, in other words.

A prescient thinker at the time, John Palfrey, a Harvard Law School professor, wrote a book called  Interoperability: The Promise and Perils of Highly Interconnected Systems.  He foresaw many new challenges in law, such as privacy and data security – he called them “new versions of old problems” in an interview – as the inevitable result of our love affair with connectedness.   (Read about it here at http://cyber.law.harvard.edu/research/interoperability).  (Privacy of our written communications and interactions on the Internet seems such a dated notion today, but at the time many people were frightened at the amount of personal information publically available.)  Similarly, for the eDiscovery profession, the connectedness and complexity of social media posed overwhelming obstacles to collecting and using evidence.  For example, since the information was actually being stored “in the cloud” by a third party (not a client or opponent, on a closed network), how did litigators obtain the information?   How could a litigator ensure preservation and avoid spoliation charges when users could delete information even years after they “posted” it (an old-fashioned Facebook term for affirmatively publishing information)?  And, since posts were followed by responses over a period of days, interspersed with unrelated topics, how did a litigator reconstruct the actual conversation that occurred?  The threading/reconstruction tools that existed for email had not, as yet, been invented for social media.  Once reconstructed, could the evidence be used?  What circumstantial evidence was enough to connect a person to his social media in a world where imposters flourished?

Now, of course, we have technology that effectively preserves and reconstructs meaningful conversations found in older social media technologies.  But no one yet has come up with a practical, cost-effective way to collect facts from communications arising not via the written word (or the spoken one) but through motile (movement), visual, or haptic (touch) feedback.   We used to have digital interfaces that captured information as part of the hardware and software, or at least we could track and connect users to their interfaces.  Now our hands, or the tabletop, or the wall, are the instantly-available and untraceable interfaces.  It’s 2020, and law is in a show-down with technology.  Who will win?

The Legal Landscape, by Tom Hemnes

A new field of legal specialization will develop at the intersection of privacy, data protection and movement, and brand protection law.  Privacy regulation will coalesce around principles of opt-out for non-sensitive data and opt-in for sensitive data.  Efforts to harmonize the privacy laws of the United States and the European Union will fail, but use of the “Safe Harbor” type principles will expand to facilitate international data flow.  Behavioral marketing will be increasingly regulated; the industry will organize itself to lobby against further regulation.  Copyright-like rights in compilations of data will collide with the personal data protection laws.  Law enforcement and security authorities will monitor social media aggressively, leading to thin regulation of their activities in Western countries but no regulation in authoritarian regimes.  Tort remedies for invasion of privacy and of the right of publicity will expand.  There will be proposals to create property rights in personal data, against which the industry will successfully lobby.  By the end of the next ten years social media will have become less revolutionary from both personal and political standpoints, through regulation and ubiquity.

Thomas Hemnes is a Partner at GTC Law Group LLP & Affiliates.  He is a member of the bar in Massachusetts, England and Wales.

David A. Kluft is a Partner in the litigation department of Foley Hoag LLP.  He is a member of the Boston Bar Journal Board of Editors.

Peter M. Lefkowitz is Vice President, Legal and Chief Privacy Officer at Oracle Corporation. He is a member of the Boston Bar Journal Board of Editors

Martha Mazzone is a Vice President and Associate General Counsel at Fidelity Investments.  She is a member of the Boston Bar Journal Board of Editors.  

Zick Rubin practices publishing, copyright, trademark, and higher education law in Newton  (www.zickrubin.com).   In December, 2020, he received the National Medal of Soothsaying.


Translation

By Judge Rudolph Kass (ret.)

The Profession

Shortly after taking my seat as an associate justice of the Appeals Court, I received a notice of deposition. The subject concerned the competence of a testatrix whose will signing I had witnessed while still in practice. In doubt how a judge should behave in those circumstances, I consulted the then Chief Justice, Allan M. Hale, a bottomless source of pragmatic wisdom. His instructions were: “Go answer the questions and don’t make any rulings.”

I recalled that episode, which involved a degree of behavior modification, when asked by an editor of this journal what, if anything, I had to impart about my translation from appellate judge to mediator and arbitrator. That role change occurred after I reached the constitutionally mandated retirement age for judges.

An appellate judge comes upon a controversy when it has already gone to an advanced state of development: the parties and their counsel have not resolved their differences – if they have even tried; the case has gone to trial; a jury or judge has found the facts; and one side has won. The record is fixed. Except for the rare instance when a losing party challenges the findings of fact (generally a Sisyphean task), the appellate judge engages in analysis to refine the questions in the case and applies the fruits of legal research, life, and professional experience to produce an opinion of what the law is and, by its application, to decide who wins the case. In that effort, the appellate judge has the comfort of collaboration – and sometimes loyal opposition – of the other judges on the court.

The mediator enters upon a dispute in its nascent stage. With rare exceptions, the case has not been tried, and the appellate judge turned mediator is re-introduced to the certainty paradox that characterizes a trial: that the only certainty about a trial is the uncertainty of the result. At the mediation stage facts are still unsettled. This permits the parties enthusiastically to demonize one another – and they generally do.

Mediation theory holds that the role of the mediator is to help the parties size up their vital interests so that those parties reach an accord. Chances are, however, that when counsel for the parties choose a former judge to be their mediator, they want that mediator to voice some judgment about the strength of the parties’ legal positions. There may be a time for that but one quickly learns that at the beginning of the process, the ex-judge mediator, like the judge-deponent, better not make any rulings. The atmosphere is more favorable to settlement if one side may plausibly argue the world is flat and the other that the world is round. Mediation is a search for the mutually unsatisfactory but acceptable resolution – unsatisfactory in the sense that each party will walk from the mediation with less than that to which it thinks itself entitled but can accept upon reflective assessment of the risk of losing the case, the legal expenses even if victorious, and the disruptive wear and tear that litigation imposes. This is not to say that mediation is unprincipled. The relative claims and defenses are grounded in law and those considerations weigh heavily in resolution of the controversy. The legal answer is not the sole answer. In a particular context it may not be a constructive answer and it is wise, as Professor Austin W. Scott was wont to observe when teaching the law of trusts, to rise above principle: for example, when parties reasonably anticipate a course of mutually beneficial commercial relations ahead of them.

In appellate presentations there is a premium on candor on the part of counsel. Judges will give more weight to arguments from lawyers who are playing straight with the court. In mediation there is theater and posturing as parties make offers and counter offers that they do not seriously expect will be accepted. For the translated judge this takes some getting used to and calls upon the patience reserve. One develops a sense when the dance step converts to real negotiation.

In the comparative calm of the appellate process, the emotional state of the combatants is not a factor. The mediator, by contrast, sees emotion – often it is anger – on display and it is very much a factor that the mediator must strive to understand. The mediator’s response is that anger, however justified, is corrosive and obstructs arriving at a solution to the problem that produced the controversy in the first instance. It is fair to ask when confronted with anger and its twin, an immovable position, what did the party come to mediate? Was it not to solve a problem by a method other than a shoot out?

As the mediation reaches the climactic stage, the ex-judge begins to resume aspects of her/his former role. While still not a decision maker, the mediator becomes more directive, appraises legal positions more definitively, describes worst case scenarios and what the mediator thinks are a party’s vital interests. To the extent that parties are stuck in fixed positions, the mediator may suggest elements of a resolution other than an exchange of money. What does the former judge miss at this juncture? Not sitting one foot higher than everybody else in the room.

The former judge is likely to be conscious of the duty of the trial judge managing the case, if it has reached a judge, to keep the case from stalling or moving sideways. It would be presumptuous for a mediator to suggest how a trial judge should manage scheduling issues but if the parties appear to be getting close to settlement, it may be permissible for the mediator, with the consent of the parties, to so report to the trial judge. That said, the confidentiality statute, G.L. c. 233, §23C, which governs mediation, imposes circumspection on any communication between a mediator and a judge. The window in the wall that separates the mediation room from the courtroom is very small.

Occasionally parties come to mediation after entry of judgment in a trial and with the case on the path to appeal. The circumstances for a mediated settlement are now more difficult because one party has tasted blood and the other is behind the 8-ball. Yet, if the stakes are large, the winning party has an incentive to scale down its recovery in return for certainty; the losing party has an incentive to reduce the dimensions of its loss.

The Court of Appeals for the 1st Circuit screens cases in which mediation may be productive and invites the parties to mediate with a retired judge. Some years ago the Massachusetts Appeals Court experimented with a similar program. The number of cases that settled did not warrant the expense of maintaining the needed space and personnel. Instead, the court consigned cases which might have been candidates for mediation to the tender mercies of a summary disposition panel.

When listening to argument before the Appeals Court, was I ever tempted to inquire whether the parties would like to take a last shot at mediation? Hardly ever. There are cases involving family business disputes, domestic relations issues, neighbor against neighbor quarrels (e.g. about overloading a common driveway easement) where I would think it likely that a victory for one side will only further poison relations between the contending parties. But there they are. The lawyers have briefed the case, they rise to argue. Sometimes parties just need an authoritative decision. A court’s decision is a better way than dueling.

After receiving the LL.B. from Harvard Law School in 1956, Rudolph Kass broke into the practice of law with Jerome L. Rappaport and from 1961, practiced with Brown, Rudnick, Freed & Gesmer, of which he became a partner.  In 1978, Governor Dukakis nominated Kass to the Appeals Court, on which Kass served from 1979 through 2003.  Following his retirement from the court, he has embarked on a third career as a mediator and sometime arbitrator under the banner of The Mediation Group (www.themediationgroup.org) and REBA Dispute Resolution (www.reba.net), as well as doing other law related odd jobs, such as acting as a master.