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.  


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.