by Bret Cohen, Jillian Hart, and Matthew Brown
The Supreme Judicial Court (“SJC”) recently issued its anticipated decision in Attorney General v. Facebook, Inc., 487 Mass. 109 (2021), addressing the extent to which the work product doctrine or the attorney-client privilege protects internal investigations from disclosure.
The decision affirmed in part and reversed in part a Superior Court decision (Attorney General v. Facebook, Inc., 2020 WL 742136 (Jan. 17, 2020) (Davis, J.)) that held that the work product doctrine did not apply to documents the Massachusetts Attorney General (“AG”) sought from social media giant Facebook, Inc.’s (“Facebook”) internal investigation into a data privacy breach.
The SJC’s decision provides an important reminder for companies to tread carefully and always consult with counsel before launching an internal investigation to understand what may be discoverable in future litigation.
Facts and Background
After a widely publicized data breach incident involving one of its third-party applications (“apps”), Facebook undertook an internal investigation, led by outside counsel, to determine the extent to which the platform’s apps misused user data and to evaluate associated liability. Facebook intended for the app developer investigation (“ADI”) to identify any other apps that misused user data and to assess Facebook’s potential liability from the incident. Both in-house and outside counsel “designed, managed, and overs[aw]” the ADI and “devised and tailored the ADI’s methods, protocols, and strategies to address the specific risks posed by these legal challenges.” Outside counsel also retained third-party technical experts and investigators to assist in the ADI.
As a result of the data breach incident, the AG opened its own investigation into whether Facebook misrepresented the extent to which it protected or misused user data. In accordance with its authority under M.G. L. c. 93A, the AG issued a series of civil investigative demands to Facebook. Facebook complied in part, but refused on privilege grounds to honor six of the AG’s requests. The first five requests sought information related to the identities of certain apps and app developers that Facebook identified and reviewed during its ADI. The sixth request, in contrast, sought Facebook’s internal communications and correspondence regarding certain apps.
The AG filed a petition to compel compliance with its demands in the Superior Court’s Business Litigation Session. The Superior Court sided with the AG, holding that the work product doctrine did not cover Facebook’s ADI and, even if it did, the AG made the required showing of a substantial need for the information that it could not obtain without undue hardship. As to Facebook’s asserted attorney-client privilege, the Superior Court held that the privilege did not cover the information sought by the AG’s first five requests, and ordered the production of responsive documents. Regarding the sixth request, however, the Superior Court held that it did seek the disclosure of potentially privileged material, and accordingly ordered Facebook to provide the AG with a detailed privilege log.
Facebook appealed and the SJC heard the case on direct appellate review.
The SJC affirmed in part and reversed in part the Superior Court’s decision.
Work Product Doctrine: Addressing the first five requests, the SJC held that the work product doctrine did apply, because Facebook conducted the ADI in anticipation of litigation. The Court, however, carefully distinguished fact work product from opinion work product. It held that as to documents constituting fact work product, the AG demonstrated substantial need and undue hardship requiring production. At the same time, the SJC held that remand was necessary to determine whether any of the responsive documents that Facebook withheld constituted opinion work product. The SJC held that, if any of the withheld documents constituted opinion work product, such documents are only “discoverable, if at all, in rare or extremely unusual circumstances.” Facebook, 487 Mass. at 128 (internal quotations omitted).
Attorney Client Privilege: Addressing the sixth request, the SJC agreed with the Superior Court that to the extent Facebook objected on the basis of attorney-client privilege, Facebook must produce a detailed privilege log so that the AG could assess (and potentially contest) the privilege assertions. The SJC reasoned that the request sought information dating back years before the ADI began, as well as communications that did not involve attorneys, both of which might fall outside the scope of the attorney-client privilege. The SJC held that the attorney-client privilege did not cover the first five requests as they merely sought underlying facts rather than attorney-client communications. In doing so, the SJC emphasized that “the attorney-client privilege only protects communications between attorneys and a client about factual information, not the facts themselves,” noting that “this distinction is important and somewhat collapsed by the advocacy in the instant case.” Facebook, 487 Mass. at 123.
In its decision, the SJC identified and discussed three important issues pertaining to employers contemplating or conducting internal investigations.
First, the SJC considered whether the work product doctrine applies to an internal investigation. In the instant case, the SJC held that the work product doctrine applied to the ADI because: (1) documents were prepared; (2) by or for Facebook for its agents; and (3) in anticipation of litigation. The SJC specifically found that, although Facebook had an ongoing compliance program, the ADI was “meaningfully distinct” from the compliance program, with its own distinct methodology focused on past violations, rather than improving ongoing operations in the normal course of business. In short, the mere fact that the ADI also served Facebook’s business purposes did not mean that the work product doctrine was inapplicable.
Second, the SJC discussed whether the information sought by the AG constituted fact work product or opinion work product. As the SJC stated, “the line between fact work product and opinion work product is not always clear.” In this regard, the SJC noted that although Facebook made multiple public statements about the ADI and the investigatory process (which Facebook could not then claim to constitute opinion work product), any “undisclosed strategic decision-making by counsel, including the assessment of legal risk or liability  revealed by the factual analysis” might qualify as opinion work product.
Third, the SJC considered whether, in relation to fact work product, the party seeking disclosure established a substantial need for and undue hardship from denied access to the work product sufficient to warrant its discovery. The SJC held that the AG met its burden by demonstrating both. With respect to the AG’s substantial need, the SJC found that the app-related information sought was central to the statutorily authorized c. 93A investigation. Likewise, with respect to the AG’s asserted undue hardship, the SJC distinguished the ADI from a routine internal investigation that “involved simply interviewing key employees and other witnesses or reviewing a manageable number of documents, tasks that can be easily replicated by third parties or government investigators.” Here, the ADI was a years-long investigation involving a vast quantity of information and included analysis of millions of apps by hundreds of outside experts. Therefore, the SJC ruled that the enormous costs and time required to duplicate the ADI was sufficient to demonstrate undue hardship.
Although this area of law is far from settled, the Facebook decision provides helpful guidance for companies contemplating and conducting internal investigations. Key guideposts include:
- Engage counsel in advance of an internal investigation to discuss the objective and parameters of such investigation.
- Any outside experts involved in the investigation should be retained by outside counsel and should be bound by confidentiality agreements.
- Review what records and files the company develops in the regular course of business and be mindful that these records may be discoverable if not created in anticipation of litigation.
During the internal investigation, consider carefully what information and documents may be characterized as fact (versus opinion) work product and, therefore, may be discoverable. As the SJC cautions, the line between the two is “not always clear” and, consequently, aspects of internal investigations, especially fact work product, may be discoverable.
Bret Cohen chairs the Labor & Employment and Trade Secrets & Employee Mobility Practice Groups at Nelson Mullins Riley & Scarborough LLP. His practice covers a wide range of areas, including the enforcement of non-compete and employment agreements, complex commercial and trade secrets litigation, and advice and counsel on termination and transition of high-level executives.
Jillian Hart is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Jillian focuses her practice on employment and trade secrets litigation and also advises clients on a variety of employment matters, including restrictive covenants and wage and hour issues.
Matthew Brown is an associate in the Labor & Employment Group at Nelson Mullins Riley & Scarborough LLP. Matthew focuses his practice on trade secrets and non-compete litigation and advice and counsel on a variety of issues, including worker classification and employment agreements.
by Jared B. Cohen
The Supreme Judicial Court has long grappled with mandatory sentencing laws, expressing considerable skepticism and concern about their efficacy and fairness. Statutes that compel a fixed or minimum sentence for certain crimes shift power and discretion from judges to prosecutors. They often prevent courts from making individualized sentencing decisions tailored to the particular crime and defendant. Moreover, mounting empirical evidence shows that such laws disproportionately impact racial minorities.
In recent years, statutes containing mandatory sentencing language have troubled the SJC and elicited a series of critical opinions. From the sharp skepticism expressed in Commonwealth v. Laltaprasad, 475 Mass. 692 (2016), through its recent decision in Commonwealth v. Montarvo, 486 Mass. 535 (2020), which construed the controversial habitual criminal offender (or “three-strikes”) law, G. L. c. 279, § 25, to authorize a sentence of probation, the SJC has subjected these statutes to increasingly rigorous scrutiny. Absent a legislative overhaul to rewrite or reform the sentencing statutes, the SJC’s skeptical and exacting review of many mandatory sentencing laws will likely remain a feature of the criminal legal landscape.
Mandatory Sentencing: Impact and Outlook
For most crimes, judges have wide discretion to impose any sentence up to the statutory maximum penalty. The facts and circumstances of each case and defendant are distinct. Part of a judge’s role under this ordinary sentencing structure is to consider the nuanced variations of each case to fashion a fair and just punishment that is effective but not harsher than necessary to achieve the legitimate purposes of sentencing.
By contrast, some statutory offenses mandate a fixed or minimum sentence. These mandatory provisions may be triggered by the crime, the defendant’s criminal history, or the way the offense was committed. While substantially removing discretion from judges, statutes that carry mandatory sentences transfer discretion, power, and leverage to prosecutors, who can offer charge concessions during plea negotiations. Defendants are frequently willing to plead guilty and accept some period of incarceration in exchange for the prosecutor’s dismissal of a charge carrying a longer mandatory minimum sentence.
Mandatory minimum sentences also disproportionately affect Black and Brown defendants. The September 2020 Harvard Law School study commissioned by the late Chief Justice Ralph Gants found that Massachusetts mandatory sentencing laws disproportionately affect non-white defendants, leading them to face longer periods of incarceration than white defendants. Based on data from 2014 to 2016, the Harvard study concluded that the racial disparity in sentencing in Massachusetts is largely explained by the racial disparity in the severity of the initial charges that defendants face; for similar conduct, non-white defendants are more likely than white defendants to be charged with offenses carrying mandatory minimum sentences. The study also cited numerous reports showing racial disparities in prosecutorial decisions to seek mandatory sentencing enhancements under “habitual offender” (or “three strike”) laws that have been adopted in many states.
The Harvard study supports concerns that the SJC has raised with increasing frequency over the past few years. In Commonwealth v. Laltaprasad, 475 Mass. 692, 693 (2016), for example, the SJC held that trial judges have no lawful discretion to depart downward from minimum mandatory sentences set by statute. However, in the unanimous opinion written by Justice Margot Botsford, the Court observed that
[t]he efficacy, or lack of efficacy, of mandatory minimum sentences, particularly in drug crimes, is the subject of substantial public debate. But apart from the question of efficacy in terms of the purposes to be served by criminal sentences, data concerning convictions for drug offenses in Massachusetts raise a serious concern about the disparate impact of mandatory minimum sentences on defendants who are part of racial or ethnic minority groups.
Id. at 702. Laltaprasad suggested that “[i]t may be appropriate for the Legislature to consider anew, guided by the work of the [sentencing commission], the issue of authorizing sentencing judges to depart from mandatory minimum sentences in relation to certain types of drug offenses in appropriate circumstances.” Id. at 703.
Legislative action soon followed. In its landmark 2018 criminal justice reform law, the Legislature eliminated some mandatory minimum sentences for lower-level drug offenses, but left many others in place. Later in 2018, Chief Justice Gants, who was joined by Justices Barbara Lenk and Kimberly Budd, suggested in a concurring opinion that the recently-enacted criminal justice reform legislation had only “begun the process of revisiting the wisdom and fairness of mandatory minimum sentences for certain offenses,” and encouraged the Legislature to continue examining “the wisdom and fairness of other mandatory minimum sentences (including the length of those mandatory minimum sentences).” Commonwealth v. Baez, 480 Mass. 328, 332-33 (2018) (Gants, C.J., concurring) (emphasis in original).
Confusing Cases, Confusing Law
Against this backdrop, in recent years the SJC has wrestled with statutes that seemingly require a mandatory sentence, but which conflict internally or deviate from how similar language is used and understood in other statutes.
In Commonwealth v. Rodriguez, 482 Mass. 366 (2019), the Court addressed G. L. c. 269, § 10(m). Section 10(m) states that a person who unlawfully possesses a high-capacity firearm or feeding device “shall be punished by imprisonment in a state prison for not less than two and one-half years nor more than ten years.” But the statute also provides that anyone holding a valid firearm ID card “shall not be subject to any mandatory minimum sentence imposed by this paragraph,” and later states that “[t]he sentence imposed upon such person shall not be reduced to less than one year.” Id. Unable to determine conclusively to whom this last clause was intended to apply, the Court held that the trial court lawfully sentenced the defendant to not less than one and not more than two-and-a-half years, rejecting the prosecutor’s argument that the two-and-a-half-year mandatory minimum applied. Rodriguez, 482 Mass. at 368, 373-74.
A year later, in Commonwealth v. Thomas, 484 Mass. 1024 (2020), the Court construed G. L. c. 265, § 18B, which adds a penalty for possessing a firearm during the commission of any felony. Section 18B states that a person convicted of that offense “shall, in addition to the penalty for such offense, be punished by imprisonment for not less than five years.” G. L. c. 265, § 18B. By comparing the statutory language in § 18B to similar language used in other statutes, the Court held that § 18B did not require either a consecutive sentence or a five-year minimum sentence, but authorized any custodial sentence provided the maximum sentence is no less than five years. Thomas, 484 Mass. at 1026 n.8, citing Commonwealth v. Hines, 449 Mass. 183, 191-92 (2007).
Another notable example involves the home invasion statute, G. L. c. 265, § 18C. In Commonwealth v. Brown, 431 Mass. 772 (2000), the SJC held that the statute’s primary penalty provision, that a person convicted of a home invasion “shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years,” meant what its plain language suggests: “§ 18C establishes a mandatory minimum sentence and that offenders under this statute may be sentenced to a term ranging from twenty years (minimum) to life (maximum).” Id. at 775.
However, the Court noted in dicta that a 1998 amendment to the statute – that a person who commits a home invasion while armed with a firearm “shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years.” – was “problematic” and “lacking in coherence,” in that it introduced inconsistent language. Id. at 780-81. The Court remarked that “[m]ost likely, the problems with the amendment were simply the result of a legislative oversight, one we cannot remedy. . . . We make no attempt to interpret the amendment, but invite the Legislature to clarify it.” Id. In a later appeal more directly implicating the 1998 amendment, the Court stated that even if some results might appear absurd, where it could not discern the Legislature’s intent as far as the required sentence for a particular home invasion conviction, it would resolve any uncertainty against the Commonwealth and in favor of the defendant. Commonwealth v. Burton, 450 Mass. 55, 59-60 (2007).
In 2004, the Legislature amended G. L. c. 265, § 18C, to its current form, simplifying the statute by removing some of the 1998 amendment’s confounding language, while still retaining the same general penalty provision that a home invasion “shall be punished by imprisonment . . . for life or for any term of not less than twenty years.” Although this simplified version resolved some earlier confusion about the length of the required sentence, it raised a new question as to the availability of probation: the previous version explicitly prohibited probationary sentences, but the 2004 amendment did not. In construing the amended statute, the SJC observed that the amendment “may indicate a legislative intent to give a sentencing judge the power, in appropriate situations, to impose a term of probation in lieu of incarceration.” Commonwealth v. Zapata, 455 Mass. 530, 535 (2009). Unable to answer that question conclusively, the Court applied the rule of lenity and held that the amended statute “does not prohibit a judge from sentencing the defendant to probation.” Id.
In Zapata, the Court conceded that its “result, which has the effect of offering a sentencing judge a choice between probation and a mandatory minimum prison term of twenty years, may seem contrary to common sense,” and “may appear to be an anomalous result.” Id. at 535-36. Thus, the Court “again invite[d] the Legislature to clarify G. L. c. 265, § 18C.” Id. at 536. To date, the Legislature has not done so. Nor would it be the last time the Court reached such an “anomalous result.”
Déjà vu: Commonwealth v. Montarvo
In December 2020, the SJC issued another decision, this time construing the habitual criminal offender statute. That statute, also known as the “three-strikes” law, provides that any person convicted of a third qualifying felony “shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Despite this seemingly plain language, in Commonwealth v. Montarvo, 486 Mass. 535 (2020), the Court held that the law allows a judge to impose a sentence of probation. In a unanimous opinion, the SJC found the sentencing provision ambiguous and once again concluded that the rule of lenity required a reading more favorable to the defendant.
To understand Montarvo, it is necessary to understand the habitual criminal offender law as a whole. The statute has two primary penalty provisions. Subsection (a) states that a person who is convicted of any felony after having twice previously been convicted of a felony and sentenced to prison terms of at least three years, “shall be considered a habitual criminal and shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law.” G. L. c. 279, § 25(a). Subsection (b) states that a person who is convicted of one of nearly 40 specified violent crimes after having twice previously been convicted of qualifying offenses and sentenced to prison terms of at least three years “shall be considered a habitual offender and shall be imprisoned in the state prison or state correctional facility for the maximum term provided by law” for the specifically enumerated felony. G. L. c. 279, § 25(b). Subsection (b) further specifies that “[n]o sentence imposed under this subsection shall be reduced or suspended nor shall such person so sentenced be eligible for probation, parole, work release or furlough or receive any deduction from such person’s sentence for good conduct.” G. L. c. 279, § 25(b). There is no comparable provision in subsection (a).
Read in isolation from one another, each of these two subsections seems on its face to require sentencing a qualifying defendant to the “maximum term provided by law.” Reading the two provisions together, however, the SJC found inconsistency and ambiguity. The Court observed that although the plain text of § 25(a) seemed clear, the immediately following text of § 25(b) explicitly prohibiting probation (as well as parole and reduced or suspended sentences) implied that without such explicit prohibition in § 25(a), judges might still retain authority to deviate from a mandatory prison sentence under § 25(a). Montarvo, 486 Mass. at 537. The Court found this interpretation plausible given the text indicating “the Legislature intended the punishment imposed on the ‘habitual violent offenders’ sentenced under § 25(b) to be both more limited in its application and harsher once imposed than the penalties imposed under § 25(a).” Id. at 539. But other SJC precedent interpreting the statute’s basic sentencing language raised doubts about that proposition. Reading both subsections together, and employing all applicable tools of statutory interpretation, the Court concluded that, “whichever way the plain language of G. L. c. 279, § 25, is read, some aspect of it is superfluous. Thus, we are left to conclude that the text of G. L. c. 279, § 25 (a), is ambiguous on the matter of probation.” Id. at 540.
Given the ambiguity, the Court looked unsuccessfully to legislative history and intent, reasoning that, “when the Legislature intends to bar probation, it knows how to say so explicitly.” Id., citing Zapata, 455 Mass. at 535. Ultimately unable to discern the Legislature’s intent or resolve the statute’s ambiguity, the SJC once again applied the rule of lenity, concluding that it “must read § 25 (a) to provide sentencing judges with the discretion to impose probation.” Id. at 542. This holding, the SJC acknowledged, “has the effect of offering a sentencing judge in some cases a Hobson’s choice between probation and a mandatory term of twenty years in prison,” which may seem nonsensical. “Yet if this choice sounds familiar,” the Court noted, “that is because it is. In Zapata, we reached the same result.” Id. at 543. Once again, stymied by its own legal analysis, the SJC threw up its hands and pointed to an incoherent statutory scheme that guaranteed no satisfactory outcome.
Montarvo is simply the latest case that demonstrates the difficulty the courts have had interpreting many of the Commonwealth’s mandatory sentencing laws. Given the SJC’s underlying reservations about the disparate impact of mandatory sentencing laws, and the Court’s chafing at arbitrary restrictions imposed by particular statutes, it is likely that these laws will continue to be subject to careful scrutiny. It would not be a surprise to see future cases in which the SJC finds less-than-obvious exceptions or escape hatches to avoid the imposition of mandatory sentences that may seem clear on the face of a statute.
 See Massachusetts Sentencing Commission, Advisory Sentencing Guidelines, at 102 (“Best Practice Principles for Individualized Evidence-Based Sentencing”). The Sentencing Commission “does not endorse the use of mandatory minimum sentences.” Id. at 59.
 See, e.g., G. L. c. 265, § 1 (murder in the first degree “punishable with . . . imprisonment for life”); G. L. c. 269, § 10(a) (unlawful possession of a firearm outside of home or work “shall be punished by imprisonment . . . for not less than 18 months . . . in a jail or house of correction”); G. L. c. 269, § 10(m) (unlawful possession of a magazine with a capacity of more than 10 bullets “shall be punished by imprisonment in a state prison for not less than two and one-half years”).
 See, e.g., G. L. c. 94C, § 32(b) (mandatory penalty for possession with intent to distribute a Class A controlled substance based on prior convictions); G. L. c. 269, § 10(d) (mandatory penalties increased for unlawful possession of a firearm depending on prior similar convictions); G. L. c. 269, § 10G (mandatory penalties increased for unlawful possession of a firearm depending on prior criminal record).
 Compare G. L. c. 265, § 13B (penalty for indecent assault and battery on a child under 14 punishable by up to 10 years) with G. L. c. 265, § 13B1/2 (indecent assault and battery on a child under 14 committed during another enumerated crime or by a mandated reporter “shall be punished by imprisonment . . . not less than 10 years”). See also, e.g., G. L. c. 94C, § 32E (increasing mandatory sentences depending on weight of illegal drugs charged).
 In his first State of the Judiciary Address in 2014, Chief Justice Gants called for the elimination of mandatory sentencing laws in favor of individualized, evidence-based sentencing in all criminal cases. He noted that charges with mandatory minimum sentences give prosecutors more power than judges in sentencing and result in disparate and inequitable impact on minority communities. He made similar observations and calls to action when testifying before the Joint Committee on the Judiciary in 2015. In his 2016 Judiciary Address, Chief Justice Gants announced that he had enlisted Harvard to study the persistent racial disparity in sentencing.
 “Black and Latinx people charged with offenses carrying mandatory minimum sentences are substantially more likely to be incarcerated and receive longer sentences than White people facing charges carrying mandatory minimum incarceration sentences.” “Racial Disparities in the Massachusetts Criminal System,” A Report by The Criminal Justice Policy Program, Harvard Law School (2020), at 2. More broadly, it found that in a number of ways, “mandatory and statutory minimum sentences contribute to the disparities we see in incarceration length for people of color.” Id. at 59; see generally id. at 2-4, 28-32, 52-64.
 Id. at 64 (“Black and Latinx defendants tend to face more serious initial charges that are more likely to carry a mandatory or statutory minimum sentence. Despite facing more serious initial charges, however, Black and Latinx defendants in Superior Court are convicted of offenses roughly equal in seriousness to their White counterparts. . . . Further, the penalty in incarceration length is largest for drug and weapons charges, offenses that carry longstanding racialized stigmas. We believe that this evidence is consistent with racially disparate initial charging practices leading to weaker initial positions in the plea bargaining process for Black defendants, which then translate into longer incarceration sentences for similar offenses.”).
 These studies were based on data from jurisdictions outside of Massachusetts. Id. at 59.
 Many individuals charged with common offenses, including unlawful possession of a firearm or drug distribution—even absent any allegation of violence—are still routinely subject to mandatory minimums.
 In Baez, the Court held that prior juvenile adjudications may constitutionally be used as prior convictions for sentencing adult defendants under Massachusetts’s “armed career criminal act,” G. L. c. 269, § 10G. Chief Justice Gants wrote separately “to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” Baez, 480 Mass. at 332.
 Acknowledging this “imperfect” statute’s “opaque” language was described by various trial and appellate judges as “vexing,” “confusing,” and “no grammatical paragon,” and had “caused courts some consternation,” the SJC left little doubt about its view of § 10(m): “Harmonizing the provisions in a manner that does not make any of the statutory language superfluous, that sees the statute as a whole without internal contradiction, and that renders the legislation consistent with common sense, all as the Legislature intended, is quite the job with this statute. The legislative history, while interesting, is only minimally helpful in resolving the issue at hand.” Rodriguez, 482 Mass. at 368, 369-71, 373 (internal citations omitted).
 As in Zapata, the Court in Montarvo invited the Legislature to clarify its intent: “Should the Legislature decide to do so, it may amend § 25(a) to bar a judge from imposing probation. It need not look far for how to accomplish this goal.” 486 Mass. at 543, citing G. L. c. 279, § 25(b).
Jared B. Cohen is an Assistant Attorney General in the Criminal Bureau of the Attorney General’s Office and a current participant in the BBA’s Public Interest Leadership Program. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
Confronting an Accuser via Zoom: The SJC Considers the Constitutionality of Virtual Evidentiary HearingsPosted: June 28, 2021
by Brett D. Lovins
In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021), the Supreme Judicial Court confronted the novel question of whether, during the COVID-19 pandemic, a virtual evidentiary suppression hearing violates a defendant’s constitutional rights. The Court concluded that such a virtual hearing during the pandemic is not a per se violation of a defendant’s right to be present, to confrontation, to a public hearing, or to effective assistance of counsel, and instead determined that videoconferencing technology can create a close approximation of the courtroom setting. However, under the specific facts of the case, the Court also held that the motion judge abused her discretion in denying the defendant’s motion to continue where he waived his speedy trial rights and where a delay would not substantially harm the government’s case, especially since there were no civilian victims or witnesses.
John W. Vazquez Diaz, charged with drug trafficking in the Superior Court, sought an evidentiary hearing on his suppression motion. After the onset of the COVID-19 pandemic, the judge ordered the hearing to proceed via Zoom. The defendant objected, waived his speedy trial rights, and requested that the case be continued until an in-court proceeding could be held. The judge denied the request, and the defendant filed a direct appeal pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to the full Court.
In the opinion, authored by Justice Cypher, the Court addressed—and rejected—the defendant’s State and Federal constitutional arguments.
As to the defendant’s right to be present during a critical stage of the proceedings, derived from article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, the Court concluded that under certain circumstances, a suppression hearing could be held by videoconference so long as the technology provided adequate safeguards. The Court reasoned that Zoom could “approximate a live physical hearing” and “effectively safeguard the defendant’s right to be present” by permitting him to listen to evidence, adequately observe the testifying witnesses, and privately consult with counsel using virtual, private Zoom “breakout rooms.” Id. at 342. Nevertheless, the Court determined that under the particular circumstances of the case and in light of the “exceptional circumstances” of the pandemic, the judge abused her discretion by denying the defendant’s motion to continue. Id. at 344 & n.13. The Court opined, however, that the government’s “significant” interest in protecting public health “combined with its interest in the timely disposition of a case, would, in many instances, outweigh the defendant’s interest in an in-person hearing.” Id. at 343.
As to the defendant’s argument that a virtual hearing deprived him of his right to confrontation, the Court joined a minority of states to hold for the first time that the confrontation right extends to suppression hearings. But it concluded that, under art. 12, a virtual evidentiary hearing held during the pandemic is not a per se violation of that right, opining that videoconferencing (when functioning properly) closely approximates the courtroom because two-way video transmission permits live cross-examination and the defendant and the judge are virtually present onscreen and can see all the participants. As to the Sixth Amendment, the Court explained that the right may be satisfied without physical, face-to-face confrontation when necessary to further an important public policy and where the reliability of the testimony can be assured. It determined that protecting public health during the pandemic constituted an important public policy and two-way videoconferencing technology was sufficiently reliable, but ultimately demurred on whether a virtual hearing was necessary in light of its holding regarding the continuance motion.
The Court also rejected the defendant’s argument that a virtual hearing violated his Sixth Amendment right to a public hearing, concluding that a videoconference in which the public could join by telephone or Zoom was not a “constitutional closure” because the virtual nature of the hearing adjusted “only the forum” and “not the prospective audience.” Id. at 353. It reasoned that the limits on access were “no broader than necessary given the severity of the pandemic” and that the court provided virtual alternative access for those with the requisite technology. Id. at 354.
Finally, the Court rejected the defendant’s concerns about his right to the effective assistance of counsel under art. 12 and the Sixth Amendment, concluding that virtual hearings with virtual private breakout rooms are not a deprivation of that right. The Court noted that the defendant can interrupt the proceeding to confer with counsel, but also advised judges to confirm that the technology is functioning properly and encouraged judges to check with counsel periodically to ask whether their clients wished to confer.
Justice Kafker authored a concurring opinion. Although he agreed with the Court’s conclusion that in this case the judge abused her discretion by denying the motion to continue, he wrote separately to emphasize the potential problems of virtual hearings and to implore judges to proceed cautiously. He noted that virtual hearings “may alter our evaluation of demeanor evidence, diminish the solemnity of the legal process, and affect our ability to use emotional intelligence, thereby subtly influencing our assessment of other participants.” Id. at 357 (Kafker, J., concurring). For example, he noted that body language is concealed, subpar lighting obscures facial expressions, eye contact is impossible, small images and diminished sound dilute the potential emotional impact, and even a participant’s Zoom background may trigger subconscious biases. He also noted the potential for technological problems, user errors, and accessibility issues. “Importantly,” he wrote, “access to reliable Internet is often dependent on income, socioeconomic background, and educational attainment,” and “[l]ack of Internet access is more common among racial minorities.” Id. at 366 n.16. Moreover, he expressed concern about the defendant’s confrontation rights, cautioning that “‘there is something deep in human nature that regards face-to-face confrontation between accused and accuser’ as essential to fairness, a concept that has ‘persisted over the centuries because there is much truth to it.’” Id. at 364–65 (quoting Coy v. Iowa, 487 U.S. 1012, 1017, 1019 (1988)).
In some ways, the Vazquez Diaz decision is narrow and case-specific: the motion judge abused her discretion in denying the defendant’s motion to continue during a pandemic where the defendant had waived his right to a speedy trial and a delay would not substantially harm the government’s case. But the holding leaves open the possibility that under different circumstances, a judge may proceed virtually over the defendant’s objection. This might include situations where there are costs to delay, including the prosecution’s ability to prove its case because evidence may disappear altogether or degrade as memories fade.
While the Court’s decision regarding the requested continuance may be seen as narrow, the Court did not limit its discussion to that issue. Rather, it broadened its focus to reach the significant issue of the constitutionality of virtual evidentiary hearings and found them permissible, despite the concerns articulated by Justice Kafker. If virtual evidentiary hearings continue to be used after the current pandemic when no longer necessary to protect public health, these constitutional issues will surely be the basis of future litigation.
In the meantime, the decision puts the onus on defense attorneys to vigilantly protect their clients’ rights. That might mean requesting a continuance rather than proceeding to a Zoom-based evidentiary hearing when it is in their clients’ best interests to do so. And when proceeding virtually, advocates must ensure their clients connect from a neutral location with stable internet, assume responsibility for requesting breakout rooms, object if circumstances impede the judge’s evaluation of a witness (e.g., poor lighting or distractions), and confirm that the judge monitors the hearing for technological problems.
The Court’s holding that the right to confrontation extends to evidentiary suppression hearings is a significant victory for criminal defendants. It is now up to trial courts and practitioners to ensure that confrontation—so essential to fairness—is not diluted in this new virtual world.
Brett D. Lovins is a criminal defense attorney at Lovins & Metcalf. He represents individuals accused of wrongdoing from the initial stages of investigation through appeals.
by Hon. Robert B. Gordon and Hon. Debra A. Squires-Lee
Voice of the Judiciary
Commentators have written a good deal about the changes to Massachusetts Superior Court Rules 9A and 9C that went into effect on November 1, 2018. Rule 9A governs the process by which nearly all civil motions are filed in the Superior Court, and Rule 9C requires parties to confer prior to filing most of these motions. Together, Rules 9A and 9C promote judicial efficiency and streamline civil litigation. However, the two years since their amendment have witnessed continuing non-compliance with Rules 9A and 9C; and we, who have been Associate Justices on the Superior Court since 2013 and 2018 respectively, have noted some persistent areas of confusion within the bar. Below are some of the most frequent issues or questions we encounter, together with our answers.
- I called opposing counsel and left a message (or I sent an email to opposing counsel) and have not heard back. Does that satisfy Rule 9C’s conferral obligation? The Rule expressly requires that conferences shall be by “telephone or in person.” The reason is clear. Communicating by telephone or in person increases the likelihood that parties will narrow the “areas of disagreement to the fullest extent,” as required by the Rule. Further, the Rule requires “good faith” efforts. A single or even a series of emails does not suffice. Three or more unreturned calls should, however, and likely will prompt intervention by the Court in a Rule 16 Conference.
- I served my motion with a cover letter saying if you want to confer, let me know. Does that satisfy the conferral obligation? In addition to the requirement that conferral be by telephone or in person, Rule 9C requires that the parties confer “in advance of serving any motion under Mass. R. Civ. P. 8(a), 12 (except Rule 12(c) motions in administrative appeals), 26, 37, 41(b)(2) (first sentence) or 56.” (Emphasis added.) Practitioners should note that, following public comment, the Superior Court approved an amendment to the scope of Rule 9C such that Rule 9C would apply to all motions governed by Rule 9A. The court is awaiting approval from the Supreme Judicial Court on this amendment.
Requiring a conference prior to service of a motion saves resources, and improves the chance of either narrowing the issues presented in the motion or eliminating the need for the motion altogether. By contrast, once a lawyer has drafted and served a motion (and charged the client), that lawyer is more apt to dig in his or her heels and be less likely to make compromises. Further, if the parties confer only after service of a motion, but do not fully bridge the divide between their positions, they often simply file the originally served and opposed motion papers with the court without disclosing that they had reached compromises on some aspects of the motion. With the average caseload in each civil session in Suffolk County Superior Court on the order of 700 cases, judicial economy and efficiency suffer if judges are called upon to review and decide motions unnecessarily or rule on issues that are no longer in actual dispute.
Consequences: Failure to comply with Rule 9C’s conferral obligation should result in a denial of the motion without prejudice or, as some judges prefer, an obligatory conferral session in the hallway outside of the courtroom. Either result costs clients more than compliance with the Rule would have.
- I served a cross-motion (or a motion to strike) together with my opposition. When I get the opposition to my cross motion, may I serve a reply brief and require the moving party to include it in the 9A package? No. Although Rule 9A was amended to permit the moving party to serve simultaneously an opposition to the cross-motion or motion to strike and a reply to the non-moving party’s opposition to the original motion, “[n]o other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.” Counsel should recall that, prior to the 2018 amendments to Rule 9A, reply briefs were not permitted as a matter of right and permission-seeking letters to the judge were required. Further, a motion seeking leave to file an additional reply or a surreply memorandum is filed separately from the 9A package.
One important practice tip to keep in mind: do not submit the draft reply (to the cross-motion or motion to strike) or surreply with the motion seeking leave. Practitioners may think that securing leave is more likely if the reply submission has already been prepared and is staring the judge in the face. However, this sort of presumptuous practice and the cluttering of the case file it produces may put off many judges who may deny the request on that basis. Practitioners who do this risk diminishing the likelihood that their request will be granted, and finding themselves in the unhappy position of not being able to bill clients for work that their non-compliance with the Rule rendered nugatory.
- The defendant is representing herself. Must I comply with Rule 9A and Rule 9C? Rule 9A and Rule 9C apply to pro se parties. Among other exceptions, Rule 9A does not apply to ex parte or emergency motions, or motions involving a self-represented incarcerated party. But both rules do apply to self-represented litigants who are not incarcerated, and counsel have a duty to confer with pro se parties under Rule 9C just as they do with opposing counsel.
- I served my Motion to Amend the Complaint to add new claims and new parties on the original defendants. Have I complied with Rule 9A? This is a common error. Rule 9A requires service on specifically named non-parties if “(a) the Motion seeks to add the non-party as a party to the case; (b) the Motion seeks an order or other relief against the non-party; [or] (c) the issues affect the personal information or other interests of the non-party.” This requirement means that any amendment seeking to add a party must be served on the proposed new party; any motion that may affect a specific non-party, for example a motion for a preliminary injunction seeking an order that may affect the non-party, must be served on that non-party; and a motion seeking to attach property or assets in the possession of a non-party, whether pre- or post-judgment, must be served on the non-party.
- I sent documents and affidavits to the plaintiff with my opposition to the motion for summary judgment, but the plaintiff did not include them in the joint appendix. Should I file the material separately? The moving party is obligated to submit a single joint appendix with the Rule 9A summary judgment package. The moving party must append all material provided by the non-moving party, whether or not the moving party thinks the material is relevant, to the moving party’s material and include such material in the joint appendix. Please read Rule 9A(b)(5)(v) carefully, and comply with it. Whether you are seeking or opposing summary judgment, you want the court to read the material you submitted and not spend time organizing, tabbing, indexing or hunting for documents. A single, indexed, tabbed, and complete joint appendix greatly improves the court’s ability to locate and review the evidence. If the moving party does not comply, we recommend that you serve and file a motion to strike the motion for summary judgment for failure to comply with Rule 9A. Make sure, however, that you have conferred per Rule 9C and attempted to persuade the moving party to file an amended Rule 9A package with an accurate joint appendix.
- The defendant did not comply with Rule 9A and filed an “emergency” motion, which is not an emergency. What should I do? We see faux “emergency” motions all the time. A true emergency motion is one that requires resolution before the ten (or thirteen, if served by mail) days necessary to comply with Rule 9A. For example, a tracking order deadline is about to expire. Having waited until the 11th hour to seek an extension of this or that deadline may cause you anxiety; but your inattention is not the court’s emergency. A true emergency is one that arises beyond your ability to control. (Think pandemic.) If opposing counsel files a motion as an emergency motion and you do not agree, call the assistant clerk in the session to which your case is assigned. Inform him or her that you do not believe the motion is an emergency, and intend to oppose it. The clerk will then alert the judge to the opposing party’s intention to oppose and the disagreement as to whether the motion presents a true emergency. In that event, the judge will typically wait to act on the motion until receipt of the opposition.
Consequences: “The court need not consider any motion or opposition that fails to comply with Rule 9A.” The court “may return non-compliant submissions to counsel with instructions for re-filing, and may impose other sanctions for flagrant violations of the Rule.” The “other sanctions” may include denial of the motion with prejudice, and requiring the payment of costs and fees by the non-compliant party.
When followed, Rules 9A and 9C promote judicial efficiency and economy, and allow for the timely resolution of civil motions. When parties fail to comply with those rules, they waste their own and their clients’ time and money.
Hon. Robert B. Gordon has been an Associate Justice of the Massachusetts Superior Court since February, 2013. Prior to joining the bench, Judge Gordon was a partner of Ropes & Gray, LLP.
Hon. Debra Squires-Lee was appointed to the Superior Court in 2018. Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.
by Brian A. Wilson
As the American trial by jury system approaches its 400th year, unlawful discrimination in the selection of jurors remains a pressing issue. The peremptory challenge process – by which a party may object to the seating of a juror for virtually any reason without having to explain its motivation – has faced increasing scrutiny in the criminal trial context. Though not constitutionally guaranteed, the peremptory challenge has been hailed as having an “important role in assuring the constitutional right to a fair and impartial jury,” enabling a defendant to eliminate prospective jurors “whom he perceives to be prejudiced against him” or who may be “harboring subtle biases.” It has simultaneously been criticized as a means by which prosecutors and defense attorneys engage in racial discrimination with virtual impunity, be it purposeful or motivated by implicit bias.
The Current Batson-Soares Framework
Over the past four decades Massachusetts has stood at the forefront of reform aimed at curbing discriminatory jury selection practices. Seven years before the United States Supreme Court held that a challenge based solely on race violates the Fourteenth Amendment’s Equal Protection Clause, and fifteen years before it deemed solely gender-based challenges to be similarly unconstitutional, the Supreme Judicial Court (SJC) held in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), that Article 12 of the Massachusetts Declaration of Rights precludes the exclusion of jurors on the basis of “sex, race, color, creed or national origin.” Soares established a method for analyzing the validity of a peremptory challenge that would influence the Supreme Court’s creation of its landmark framework in Batson v. Kentucky, 476 U.S. 79 (1986).
Massachusetts’s “Batson–Soares” analysis presumes that parties exercise peremptory challenges lawfully, but permits a party to object to a strike on grounds that it was motivated by unlawful discrimination. A timely objection entitles that party to an immediate “three-step” hearing. At step one, the objecting party bears the burden of establishing a prima facie case that the strike was “impermissibly based on race or other protected status by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” If the objecting party satisfies this “minimal” requirement, the hearing proceeds to step two and the burden shifts to the party that lodged the strike to justify it on “group-neutral” grounds. So long as that party offers a reason that is group-neutral on its face, the hearing proceeds to step three, at which the judge determines whether the explanation is “both adequate and genuine.” If the judge so finds, the peremptory challenge stands and the prospective juror is excluded; otherwise the strike is denied, and the juror is seated.
Commonwealth v. Sanchez: A Proposal to Eliminate Step One
Acknowledging the possibility of confusion regarding the Batson–Soares first step burden, in Commonwealth v. Sanchez, 485 Mass. 491 (2020), a decision authored by Justice Gaziano, the SJC clarified that the objecting party need only demonstrate an “inference,” rather than a “likelihood,” of discriminatory purpose and no longer would it need to show a “pattern” of discrimination. The case was significant for another reason, however: it marked the first time that a justice proposed, in a published opinion, eliminating step one entirely. Justice Lowy in his concurrence recommended that “upon timely objection to a peremptory challenge made on the basis of race or another protected class, [the judge] should conclude that that party has met the first prong of the Batson-Soares test.” Justice Lowy argued this would “impose a process that recognizes not just the perniciousness of racial discrimination, but implicit bias as well”; create “a fairer process for the parties, attorneys, prospective jurors, and the court”; and “result in fewer avoidable reversals of convictions.” (This last point is discussed in more detail below.) In a separate concurrence, Chief Justice Gants agreed that “there are sound reasons to consider abandoning the first prong of the Batson-Soares test,” but only “in a case where the question is squarely presented” and where the Court would “have the benefit of briefing by the parties and amici.”
The majority was “unconvinced that removing the first step entirely is quite as simple or salutary as [Justice Lowy’s] concurrence suggests.” The majority voiced concern that since “every potential juror is a member of some discrete race or gender, every peremptory strike then would be subject to challenge and explanation.” This, it opined, would lead to two possibilities: (1) that the Court would require a party to have a good faith basis for objecting to a challenge, which “merely would reinstate the first step of the Batson inquiry in a different guise,” or (2) that it would impose no such requirement, which would create “a strong incentive to challenge every peremptory strike” because even an unsuccessful objection, “at a minimum, could reveal something of the opposing trial strategy.” The latter course, the majority warned, “would alter the nature of a peremptory challenge so fundamentally that it would raise the question whether peremptory challenges simply should be abolished.”
Eliminating step one would put Massachusetts in the company of only six jurisdictions – Connecticut, Florida, Missouri, South Carolina, Washington, and the United States Court of Military Appeals – that have departed from the Batson framework and require only that a defendant object on grounds of unlawful discrimination to satisfy the prima facie burden and trigger step two of the hearing. As significantly as it would alter the Batson–Soares test, however, Justice Lowy’s proposal does not represent as radical a departure from Massachusetts practice as it may seem. For years the Commonwealth’s judges have, upon objection to a challenge, remained free to bypass step one sua sponte; the SJC has “persistently urged, if not beseeched, judges to reach the second prong and elicit a group-neutral explanation regardless of whether they find that the objecting party has satisfied the first prong.” In fact, Massachusetts stands among a handful of states that empower a trial judge to object to a challenge sua sponte, thereby triggering a Batson hearing even where the non-challenging party remains silent.
Legislative Intent to Eliminate Step One
A bill entitled “An Act Addressing Racial Disparity in Jury Selection” (Senate Bill 918), which would create a new statutory framework for analyzing the validity of peremptory challenges, is currently under consideration in the Massachusetts Legislature. Virtually identical to a court rule Washington enacted in 2018, the law would essentially eliminate step one of the Batson-Soares test by mandating that, upon a timely objection by the opposing party or the judge sua sponte, the proponent of the strike “shall articulate the reasons the peremptory challenge has been exercised.” Following what is essentially step two in its current form, the judge would then conduct the equivalent of step three and “evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances.” Factors the judge would consider in determining their validity include, but would not be limited to:
 the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it; . . .  whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;  whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;  whether a reason might be disproportionately associated with a race or ethnicity; and  whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.
The trial judge would ultimately determine whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” If so, the judge would deny the challenge, even in the absence of a finding of “purposeful discrimination.”
The bill enumerates seven reasons deemed “presumptively invalid,” all of which the Washington rule recognizes as “historically . . . associated with improper discrimination in jury selection”:
(1) having prior contact with law enforcement officers; (2) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling; (3) having a close relationship with people who have been stopped, arrested, or convicted of a crime; (4) living in a high-crime neighborhood; (5) having a child outside of marriage; (6) receiving state benefits; and (7) not being a native English speaker.
The bill also acknowledges, as does the Washington rule, the concern that attorneys often cite a venireperson’s behavior in court to disguise a racially motivated strike. The bill mandates that any challenge “based on the prospective juror’s conduct (i.e. sleeping; inattentive; staring or failing to make eye contact; exhibiting a problematic attitude, body language, or demeanor; or providing unintelligent or confused answers) . . . must be corroborated by the judge or opposing counsel or the reason shall be considered invalid.”
One Further Consideration
While several states are debating whether to continue following the Batson protocol, whether Massachusetts retains step one is a critical issue in part because of the legal consequences of a “first-step error” relating to a prosecutor’s peremptory challenge. The SJC deems an incorrect ruling that the defendant failed to establish a prima facie case of unlawful discrimination a “structural error” that automatically requires a new trial. The Court consistently declines to follow the practice of federal and most state appellate courts, which typically remand for a hearing to allow the trial judge to conduct the belated step two and step three analyses. Therefore, the erroneous termination of the inquiry at step one and resulting absence of any explanation from the prosecutor – which is wholly within the province of the trial judge to order sua sponte – necessarily results in a conviction being vacated, even where eliciting a legitimate race-neutral reason might be possible on remand. This rule mandated the reversal of three first-degree murder convictions within a fifteen-month span in 2017 and 2018, which Justice Lowy cited as proof of step one’s “unnecessary and inefficient” nature.
Though the Court has not revisited the question since Sanchez, the viability of Batson–Soares in its current form remains a live issue. It appears the Judiciary, the Legislature, or both will decide before long whether to retain the “minimal” burden of proving a prima facie case of unlawful discrimination, to eliminate step one entirely, or to adopt some middle ground. Meanwhile trial judges across the Commonwealth will, unlike in most other states, enjoy broad discretion to require an attorney to justify a challenge even in the absence of an objection. As such, Massachusetts remains at the forefront of the movement to end unlawful discriminatory selection practices.
 Commonwealth v. Bockman, 442 Mass. 757, 762 (2004).
 See generally Batson v. Kentucky, 476 U.S. 79 (1986).
 See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
 Soares, 377 Mass. at 488-89.
 Commonwealth v. Jackson, 486 Mass. 763, 768 (2021) (internal quotations omitted); Commonwealth v. Sanchez, 485 Mass. 491, 510 (2020). See also Batson, 476 U.S. at 96-98 (defendant must first demonstrate “the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation. . . . The trial court then will have the duty to determine if the defendant has established purposeful discrimination”). Acknowledging “the variety of jury selection practices” followed nationwide, the Supreme Court left the states to decide whether to adopt Batson’s procedural framework. See id. at 99 & n.24.
 Sanchez, 485 Mass. at 492.
 Id. at 515 (Lowy, J., concurring).
 Id. at 518 (Gants, C.J., concurring).
 Id. at 513 n.19. Several since-retired justices have called for the elimination of peremptory challenges entirely. See Commonwealth v. Maldonado, 439 Mass. 460, 468 (2003) (Marshall, C.J., concurring) (joined by Justices Greaney and Spina in noting that “it is all too often impossible to establish whether a peremptory challenge has been exercised for an improper reason” and declaring it “time to either abolish them entirely, or to restrict their use substantially”); Commonwealth v. Calderon, 431 Mass. 21, 29 (2000) (Lynch, J., dissenting) (suggesting that “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, we abolish them entirely”).
 See State v. Holloway, 553 A.2d 166, 171 (Conn.), cert. denied, 490 U.S. 1071 (1989); State v. Johans, 613 So.2d 1319, 1321 (Fla. 1993); State v. Parker, 836 S.W.2d 930, 938 (Mo. 1992); State v. Chapman, 454 S.E.2d 317, 320 (S.C. 1995); United States v. Moore, 26 M.J. 692, 698-700 (A.C.M.R. 1988) (en banc); Wash. Gen. R. 37(d) (2018). California will likewise eliminate step one in criminal trials beginning on January 1, 2022. See Cal. Civ. Proc. Code § 231.7 (2020). In Hawaii a prima facie case is established where a prosecutor strikes all members of the venire who share a common identity group with the defendant. See State v. Batson, 788 P.2d 841, 842 (Haw. 1990).
 Sanchez, 485 Mass. at 515 (Lowy, J., concurring). See also Commonwealth v. Issa, 466 Mass. 1, 11 n.14 (2013) (urging judges to “think long and hard before they decide to require no explanation from the prosecutor for the challenge”).
 See Commonwealth v. Smith, 450 Mass. 395, 405, cert. denied, 555 U.S. 893 (2008) (where defense counsel does not object to prosecutor’s challenge, “a judge may, of course, raise the issue of a Soares violation sua sponte”); Commonwealth v. LeClair, 429 Mass. 313, 322 (1999) (“Whether the [objection to the defendant’s peremptory challenge] was initially raised by the Commonwealth or the judge, sua sponte, is immaterial”).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(c)&(d).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(g). See also Sanchez, 485 Mass. at 518-19 (finding relevant “(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; (2) any evidence of disparate questioning or investigation of prospective jurors; (3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); (4) whether the defendant or the victim are members of the same protected group; and (5) the composition of the seated jury”).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(e).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(h).
 S. Bill 918, 192nd Gen. Ct. (Mass. 2021). See Wash. Gen. R. 37(i) (noting those reasons “also have historically been associated with improper discrimination in jury selection”).
 See Sanchez, 485 Mass. at 501-02.
 Id. at 517 (Lowy, J., concurring). See Commonwealth v. Ortega, 480 Mass. 603, 607-08 (2018); Commonwealth v. Robertson, 480 Mass. 383, 397 (2018); Commonwealth v. Jones, 477 Mass. 307, 325-26 (2017).
Brian A. Wilson is a Lecturer and Clinical Instructor within the Criminal Law Clinical Program at Boston University School of Law and supervisor of its Prosecutor Clinic. He serves as a Special Assistant District Attorney in Norfolk County, where he previously spent 17 years as an appellate and Superior Court trial prosecutor. He is a graduate of Emory University and Boston University School of Law, and is a member of the Boston Bar Association.
by Kevin J. Conroy
Earlier this year, in Kauders v. Uber Technologies, Inc., 486 Mass. 557 (2021), the Supreme Judicial Court provided further clarity on an issue likely to impact every resident of the Commonwealth and the businesses they interact with online – namely, the enforceability of agreements created through website and mobile apps, including the terms and conditions that purport to govern the use of those businesses’ online platforms.
The Test for Enforceability
In Kauders, the SJC evaluated the interface by which Uber had attempted to secure its users’ assent to its terms and conditions, including a mandatory arbitration clause. Recognizing that “[t]he touchscreens of Internet contract law must reflect the touchstones of regular contract law,” the SJC held that to create an enforceable online contract under Massachusetts law, there must be both reasonable notice of the terms and a reasonable manifestation of assent to those terms.” Id. at 572. Kauders’ two-part test is consistent with the approach taken by appellate courts from around the country as well as in a 2013 decision from the Massachusetts Appeals Court. Id. (citing Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 574-75 (2013) and Conroy & Shope, Look Before You Click: The Enforceability of Website and Smartphone App Terms and Conditions, 63 Boston Bar J. 23, 23 (Spring 2019)). See also Emmanuel v. Handy Technologies, Inc., No. 20-1378 (1st Cir. Mar. 22, 2021) (applying Kauders to find that plaintiff had formed an arbitration agreement with the defendant).
Reasonable Notice of Terms
With respect to reasonable notice, the SJC clarified that actual notice will generally be found if the user has been presented and viewed the terms, or if the user is required to interact with the terms somehow before proceeding to use the app or website. Thus, interfaces that require the user to scroll through the entire text of the terms before being allowed to progress should satisfy the reasonable notice prong of the test under Kauders. Absent actual notice, the SJC indicated that clarity and simplicity of the presentation of the terms should be the focus. If the terms are not presented directly on the screen, the full text should at least be available (if not required to be accessed) by following a clear link with minimal intermediate steps.
The SJC explained that, ultimately, reasonable notice involves a determination of whether “the offeror [has] reasonably notif[ied] the user that there are terms to which the user will be bound and [has] given the user the opportunity to review those terms.” Id. at 573. The Court noted that Uber’s notice, in contrast, was not reasonable as the terms could be reached only by following two successive links which the user was not required to access to complete the registration process. The SJC also identified several other features of Uber’s interface that detracted from the clarity of the notice of the terms. For example, the nature of the transaction – registering for an account to enable future ride services – might not suggest to a reasonable user that the user is entering into a contractual relationship governed by the extensive indemnification and waiver provisions included in Uber’s terms. The SJC also observed that the language informing the user of the contractual consequences of proceeding with the registration was displayed less prominently than other elements. That language appeared at the bottom of the screen, whereas the elements the user was required to interact with to proceed (e.g., entering payment information) drew the user’s attention away to the top of the screen.
Reasonable Manifestation of Assent
With respect to reasonable manifestation of assent, the SJC declared a clear preference for “clickwrap” interfaces in which the user is required to indicate express and affirmative assent to the terms by checking a box or clicking a button that reads “I agree” or its equivalent. The Court likened the affirmative act of clicking such a box or button of assent to “the solemnity of physically signing a written contract” and suggested that this would help alert the user to the contractual significance of their action. Where the interface does not require the user to expressly agree – as in the Uber interface at issue in Kauders – assent may still be inferred from the actions the user takes. However, the SJC cautioned that in such cases the courts would need to engage in careful consideration of the totality of the circumstances, and “it will be difficult for the offeror to carry its burden to show that the user assented to the terms.” Id. at 575.
The Court admonished that Uber’s interface obscured the connection between the user’s action and assent to Uber’s terms because the app only required the user to click a button labelled “DONE” (rather than “I agree” or “Create Account”) on the screen that provided notice of Uber’s terms. Id. at 577. To underscore that “uncertainty and confusion in this regard could have simply been avoided by requiring the terms and conditions to be reviewed and a user to agree,” the SJC compared Uber’s rider registration interface (at issue in the case) with its separate, driver registration interface. The latter required prospective drivers to confirm at least twice that they had reviewed and accepted the terms of the agreement by clicking a button expressly stating “YES, I AGREE.” In contrast, the SJC observed that the Uber rider interface at issue “enables, if not encourages, users to ignore the terms and condition.” Id. at 577.
The Substance of the Terms
The SJC also expressed skepticism about various aspects of Uber’s terms, including a provision that purported to permit the company to make unilateral changes to the terms without notice (placing “the burden on the user to frequently check to see if any changes have been made”). The Court likewise expressed doubt about a provision that “totally extinguishe[d] any possible remedy” against the company. While the Court did not reach the question of the enforceability of such terms given its determination that no contract had been made, it included the severe consequence of the terms in its analysis of whether reasonable notice was provided.
Kauders confirms that Massachusetts courts will closely scrutinize the manner in which websites and apps communicate, and attempt to secure users’ agreement to, the terms and conditions that purport to govern their use, particularly if there is any indication that the existence or import of the terms are minimized or obscured. Anything less than an interface that is designed simply and clearly to require (1) that the terms be viewed actively by the user (through direct display on the screen or a direct hyperlink to the full terms) and (2) that there be express and unambiguous assent (through check-the-box style interfaces or “I Agree” buttons) is likely to invite avoidable court challenges.
Kevin J. Conroy is a litigation attorney at Nystrom, Beckman & Paris in Boston. Kevin’s practice focuses on complex disputes including contract claims, insurance coverage claims, and other business disputes.
by Jeffrey D. Woolf and Martin Newhouse
On February 10, 2021, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (ABA) issued Formal Opinion 497 (Opinion) entitled “Conflicts Involving Materially Adverse Interests.” As its title indicates, the Opinion attempts to define for practitioners what interests can be “materially adverse” when determining whether a conflict of interest exists under ABA Model Rules 1.9(a) (which addresses conflicts of interest between a current client and a former client on the same or a “substantially related matter”) and 1.18(c) (which addresses conflicts of interest between a current client and a prospective client on the same or a “substantially related matter”). Unlike ABA Model Rule 1.7 (the general conflict of interest rule), both Model Rules 1.9 and 1.18 use the “materially adverse” terminology when discussing conflicts of interests.
This article summarizes the Opinion and discusses other instances of potentially materially adverse interests that the Opinion does not cover, but of which practitioners should nevertheless be aware.
Model Rule 1.9(a) speaks to a conflict of interest that exists where a current client seeks representation in “the same or a substantially related matter in which the current client’s “interests are materially adverse to the interests of the former client.” (emphasis added.) Model Rule 1.18(c) prohibits representing “a client with interests materially adverse to those of [a] prospective client.” (emphasis added.) As noted, the Opinion addresses some, but not all, of the issues raised by the term and the meaning of “materially adverse interests” as it appears in these rules, and how the phrase should be construed in the two rules.
First, the Opinion reviews the origins of the “materially adverse” standard and notes that “material adverseness” does not reach situations where the representation of a current client may pose a general harm to economic or financial interests “without some specific tangible harm.” Citing Zerger & Mauer LLP v. City of Greenwood, 751 F.3d 928 (8th Cir. 2014), the Opinion notes that a fact-specific analysis is required to determine “whether the current representation may cause legal, financial or other identifiable detriment to the former client.” Id. at 933.
It then addresses three specific types of situations where “materially adverseness” can be found under Model Rule 1.9(a): (a) suing or negotiating against a former client; (b) attacking the lawyer’s own prior work for the former client; and (c) examining a former client in a deposition or trial. Summaries of the Opinion’s treatment of each of these follows.
Suing or Negotiating Against a Former Client.
Absent written consent by the former client, suing a former client or defending a new client against a claim by a former client on the same or a substantially related matter is prohibited, as is negotiating against a former client in the same or a substantially related transactional matter. Unfortunately, the Opinion does not address what is meant by “substantially related,” a subject that has spawned much litigation.
Attacking the Lawyer’s Own Prior Work.
Examples of attacking the lawyer’s own prior work include challenging a patent that the lawyer previously obtained for a former client, or challenging, on behalf of a new client, a real estate restrictive covenant that the lawyer previously drafted for the seller of the land.
Examining a Former Client.
Model Rule 1.9(c)(1) prohibits a lawyer from using information “relating to the representation of a former client to the disadvantage of the former client,” lawyer unless the information has become “generally known.” Even where the information has become known, however, the lawyer may still have a conflict of interest under Model Rule 1.9 in examining the former client, if the former client’s interests are “materially adverse” to the current client and the current matter is “substantially related” to the prior matter. Lawyers should be aware that courts have sometimes found “material adverseness” when a lawyer proposes to examine a former client, even where no information from the prior representation will be used. For example, in Illaraza v. Hovensa, LLC, 2012 WL 115446 (D. V.I. Mar. 31, 2012), at *6-10, a lawyer who had previously represented a company’s employee-manager in a criminal case was disqualified from later representing plaintiffs in a wrongful discharge action against their former employer, where the plaintiffs contended that the employee-manager had defamed them. The court rejected the lawyer’s promises not to use confidential information against the former client (employee-manager) and the offer not to cross-examine her former client on any topics where the lawyer had confidential information.
Matters Not Addressed in the Opinion.
Unfortunately, the Opinion does not address several types of material adverseness that frequently arise and raise unresolved issues. Among these is the “positional conflict,” referenced in Comment  to Model Rule 1.7. Suppose you concentrate in a particular area of law (e.g., franchise or landlord-tenant litigation) where you may represent a franchisor (or a landlord) in one case and a franchisee (or a tenant) in another case. As long as you are not litigating against a current or former client, or challenging your own prior results in a previous case, then you might think there is no conflict of interest. In fact, even if you advocate a position in one case that is contrary to a position you previously advocated in another case, Comment  says that this does not automatically create a conflict of interest. However, if the position you take may create legal precedent that is “likely to seriously weaken the position taken on behalf of the other client,” then you may have a conflict of interest. (Examples include advocating for a precedent that changes the interpretation of a law or regulation or a burden of proof.) Comment  concludes with the warning: “If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.”
Another type of conflict, not discussed in the Opinion, is the so-called “playbook” conflict, where a lawyer may be disqualified because the lawyer knows the former client’s legal or business “playbook” or strategy. In Nasdaq, Inc. v. Miami Int’l. Holdings, 2018 WL 6171819 (D. N.J. 2018), a case mentioned in the Opinion but not discussed for this purpose, the court disqualified Fish & Richardson from representing the defendants in pending litigation because its Boston office had, over seven years before, represented Nasdaq in patent applications, even though the Boston office had been walled off from the pending litigation. In addition to finding a substantial relationship between the present litigation and the past transactional work, the court said that Fish & Richardson knew and had shaped Nasdaq’s internal IP and patent strategy. Weighing the applicable factors to determine whether disqualification was warranted, the court concluded that, on balance, disqualification was appropriate.
One of the earliest cases in which a lawyer was disqualified for knowing the former client’s litigation philosophy, methods, and procedures is Gray v. Commercial Union Ins. Co., 191 N.J. Super. 590, 486 A.2d 721 (1983). There, the lawyer had worked for about twenty-one years as outside counsel, defending the company’s insureds in personal injury litigation. While the lawyer claimed he “was never made privy to any confidential or proprietary information of” the insurance company and never “receive[d] any information “regarding the administration of various of defendant’s business operations,” the insurer successfully argued that his knowledge of “its claims and litigation philosophy and its methods and procedure in handling of defending claims and litigation” was “confidential and proprietary information of” the insurer. The court found that the lawyer “necessarily became familiar with such useful information as the strengths and weaknesses of this corporate client’s decision makers [and] their attitude towards settlement.” Accordingly, the lawyer and his firm were disqualified from representing the plaintiff in that case. Although not discussed in Gray because it predates the ABA Model Rules, this “playbook information” may be a subset of “confidential information referenced in Comment  to Model Rule 1.9, which says in pertinent part:
Matters are “substantially related” for purposes of this Rule if . . . there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. . . . In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. (Emphasis added).
Accordingly, an in-house lawyer or an outside counsel who formerly had regularly represented a client should be wary of undertaking a representation that could be characterized as relying on the lawyer’s knowledge of unique or confidential information of the former client in suing the former client.
Materially Adverse to a Prospective Client.
Almost the entire Opinion is devoted to conflicts with former clients. It does, however, discuss one example of materially adversity toward a prospective client, In re Carpenter, 863 N.W.2d 223 (N.D. 2015). In that case an individual consulted the lawyer about a matter adverse to the Christian Science Church of Boston. The prospective client had discovered that mineral rights to land in North Dakota had been left by a decedent to the Church and hoped for a fee in bringing it to the Church’s attention. After declining the representation, the lawyer took the same information to the Church himself and offered to represent the Church with respect to the mineral rights. This was found to be “materially adverse to the prospective client’s interests.”
The Opinion concludes by noting that, even if a current representation is “materially adverse” to the interests of a former or a prospective client and the matters are “substantially related,” it may still be possible to represent the current client. However, that will require informed consent, confirmed in writing, by the former or prospective client. Importantly, however, that consent does not in itself waive the lawyer’s obligations to maintain the confidentiality of all information gained from the prior representation of the former client or the consultation with a prospective client. For that, the Opinion notes that the lawyer must obtain a separate informed consent, also confirmed in writing, under Model Rule 1.6.
It is important to note, in considering whether a separate consent under Rule 1.6 is required, that while the Massachusetts version of Rule 1.6(a) is restricted to “confidential information related to the representation of [the] client,” ABA Model Rule 1.6(a) refers more broadly to “information related to the representation of [the] client.” The prudent practitioner would be well advised to take a more expansive view of what information requires “informed consent,” particularly if the lawyer practices outside of Massachusetts or if the client is located outside of Massachusetts in a jurisdiction that has adopted the broader language of the ABA Model Rule (such as, e.g., Rhode Island).
Finally, because, as discussed above, the Opinion does not identify all instances of “material adversity,” ethical practice requires a lawyer not to rely entirely on the Opinion. A lawyer should also be familiar not only with the omitted examples discussed above, but, as importantly, with the court and disciplinary decisions in the jurisdictions in the which the lawyer is active. These, along with the Opinion, should guide the lawyer on this issue.
 Citing Wyeth v. Abbott Labs, 692 F. Supp. 2d 453, 459 (D. N.J. 2010), the NASDAQ Court said it should consider the following factors in determining whether disqualification is warranted: (1) prejudice to the former client; (2) prejudice to the new client; (3) whether the law firms representation of the former client in the former matter has allowed the new client to gain access to any confidential information relevant to this case; (4) “the cost—in terms of both time and money—“for the new client to retain new counsel; (5) “the complexity of the issues in the case and the time it would take new counsel to acquaint themselves with the facts and issues”; (6) “which party, if either, was responsible for creating the conflict.”
Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.
Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.
by Adam Sherwin
The Supreme Judicial Court issued its decision in Murchison v. Sherborn Zoning Board of Appeals, 485 Mass. 209 (2020), last year, concerning the test of standing for a G.L. c. 40A, § 17, zoning appeal. This decision, which came after an application for Further Appellate Review (“FAR”) of a published Appeals Court decision, was closely followed by the Massachusetts real estate community. The prior Appeals Court decision–which could be seen as watering down the test for standing–left many real estate professionals concerned that the floodgates would open for zoning appeals.
Murchison is one of the few, if only, times that the Supreme Judicial Court (“SJC”) issued an order affirming the trial court decision the day after oral argument, with a written decision coming some months later. Such a move underscores the high stakes of this decision.
The SJC’s decision in Murchison reaffirms an important principle for establishing standing to pursue a zoning appeal: One cannot appeal simply because they claim a zoning violation has occurred. Rather, a G.L. c. 40A, § 17, appeal requires such a claimant to show particularized harm from the zoning violation.
Background on Chapter 40A
Chapter 40A allows any person “aggrieved” by a zoning decision to appeal the matter through a civil action, which most commonly is filed in Superior Court or Land Court (but can also be filed in Housing Court or District Court).
Judicial review under chapter 40A is a “hybrid” between a trial and an appellate case. Like a trial matter, such a case requires a court to find facts de novo, without deference to the local board hearing. For this reason, it is common in a G.L. c. 40A, § 17, case to have witnesses, exhibits, and other evidence that was never presented at the initial zoning hearing. Following such factfinding, however, a court must give deference to the zoning board’s decision, and uphold it unless the decision is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.
The text of G.L. c. 40A, § 17, expressly addresses standing by stating that only a “party aggrieved” from a zoning decision may pursue an appeal. G.L. c. 40A, § 10, further creates a presumption of standing for any abutters located within three hundred feet of the property line of the petitioner seeking the zoning relief.
This presumption, however, can be rebutted by a defendant through a showing that (1) the alleged harm is not a protected interest under the zoning ordinance or (2) credible affirmative evidence exists to refute the presumption. If standing is rebutted, the plaintiff pursuing the zoning appeal bears the burden of showing aggrievement, with the party who received the zoning relief bearing the burden of showing that is entitled to such approval.
G.L. c. 40A, § 17, is largely silent as to what specific harms may constitute aggrievement. The caselaw is clear that this term is not meant to be narrowly construed, and intended to a flexible standard. Aggrievement, however, must be based on a private interest, not one affecting the public as a whole. Common grounds for standing in G.L. c. 40A, § 17, appeals include increased density, loss of privacy, and traffic concerns.
The plaintiffs in Murchison, homeowners in Sherborn, challenged a decision of the local zoning officer to grant a foundation permit for a single-family residential home across the street from their property. They argued that this home lacked the necessary minimum lot width for such a permit.
The plaintiffs filed a claim with the Town of Sherborn’s Zoning Board of Appeals, seeking review of the zoning officer’s decision–a required step for anyone challenging a local zoning decision. After the ZBA upheld the zoning officer’s decision, the plaintiffs filed an appeal in the Land Court pursuant to G.L. c. 40A, § 17.
Because the plaintiffs were abutters to their neighbor’s property, they enjoyed the rebuttable presumption of standing under G.L. c. 40A, § 11. Following a trial, however, the Land Court ruled that the defendants had rebutted this presumption, largely through expert testimony, and that the plaintiffs were not aggrieved by the ZBA’s decision.
On the merits, Land Court found that the alleged harm to the plaintiffs was de minimis. A key factor for this decision was that the plaintiffs’ home was across the street from proposed development, which rendered the plaintiffs’ concerns about lighting, traffic, and noise applicable to the community as a whole, rather than particularly to themselves. The plaintiffs appealed.
Appeals Court Decision
The Appeals Court, in a published decision, reversed the Land Court decision. 96 Mass. App. Ct. 158 (2019). The Appeals Court noted that the minimum lot width requirement was a zoning ordinance aimed at preventing overcrowding. Because of this, the Appeals Court reasoned, any increase in density was, on its own, enough to prove aggrievement.
The Appeals Court reasoned that determining one’s “harm” for a G.L. c. 40A, § 17, appeal comes directly from the applicable zoning ordinance:
There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants do not argue exists in this case, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.
The Appeals Court rejected the argument that the Murchison plaintiffs needed to do anything further to show particularized harm. This was in contrast to the Land Court decision and prior caselaw, which required such plaintiffs to do more than simply note that a zoning violation occurred. The Supreme Judicial Court then granted an application for FAR.
The SJC reversed the Appeals Court and upheld the Land Court’s decision that the plaintiffs lacked standing for a zoning appeal.
In doing, the SJC reaffirmed a central tenet for determining one’s standing for a G.L. c. 40A, § 17, appeal: “establishing standing requires a plaintiff to do more than merely allege a zoning violation.” 485 Mass. at 214.
As the SJC noted, the Murchison plaintiffs needed to demonstrate that they themselves would be impacted by the zoning relief, such as a showing that the development interfered with a view, reduced light or air, or interfered with their privacy.
While the Appeals Court was willing to determine standing mostly based upon a local municipality’s zoning ordinance alone, the Supreme Judicial Court clarified that a failure to comply with zoning, on its own, does not establish aggrievement.
Implications of Murchison
Murchison did not chart a new course for determining standing in a G.L. c. 40A, § 17, appeal. Rather, Murchison largely reaffirmed prior caselaw on standing, by emphasizing the importance of showing one’s individual harm as grounds for aggrievement.
Murchison, however, does reemphasize the tension in resolving such inquiries. Everyone involved in a real estate dispute is familiar with the old adage that “all property is unique.” Consequently, what one property owner considers as an important protection from a zoning ordinance may not be the same as another. In other words, while Land Court might deem the Murchison plaintiffs’ concerns about their neighbor’s minimum lot width to be de minimis, such a determination is not always a clean-cut answer.
The Appeals Court offered the simplest solution to this type of question: Let each municipality’s zoning ordinance make this call. But affording standing to nearly any party alleging a zoning violation would seemingly eliminate “aggrievement” from G.L. c. 40A, § 17.
Therefore, determining whether one’s harm is more than de minimis will remain a continued source of contention for future zoning appeals. Those pursuing zoning appeals must be mindful that a determination of standing is a question of fact, and careful thought must be given to the evidence necessary to prove such a matter.
Murchison also reaffirms that, in Massachusetts, zoning decisions are intended to be local. Because a zoning appeal under G.L. c. 40A, § 17, requires a showing of harm, many zoning decisions will not (and, indeed, cannot) be reviewed in court, for want of a party with standing to challenge the decision. This means that, for many zoning matters, local board of appeals or special permit granting authorities will continue to have the final say on many land use decisions.
Adam Sherwin is a solo practitioner concentrating in real estate litigation. He represents property owners, landlords, and tenants with a wide array of real estate matters, including boundary disputes, zoning appeals, contract disputes, foreclosure law, and landlord-tenant matters.
by Ryan E. Ferch
The proliferation of electronic recording devices and media sharing platforms has drastically changed our daily interactions and views about privacy. Perhaps nowhere is this effect more apparent than in civilians’ recordings of public officials, in particular, law enforcement officers. The publication of these recordings raises profound issues about racial and ethnic disparities and public accountability, the effectiveness of police training and community policing strategies, the risk of violence law enforcement officers face in the performance of their duties, and society’s treatment of the mentally ill, among others.
Massachusetts courts and the First Circuit have grappled with the nexus between electronic recordings and rights protected by the First Amendment since the enactment of the Massachusetts wiretap statute, G.L. c. 272, § 99 (“Section 99”), in 1968. But until Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), no court had addressed squarely whether secret recordings are protected by the First Amendment. In Project Veritas, the First Circuit concluded that Section 99 violated the First Amendment in one specific circumstance: as applied to the statute’s criminalization of “secret, nonconsensual audio recording of police officers discharging their official duties in public space.” Project Veritas, 982 F.3d at 844.
Less than six months after Project Veritas, the Supreme Judicial Court (“SJC”) in Curtatone v. Barstool Sports, Inc., No. SJC-13027, 2021 WL 2408015 (June 14, 2021), also addressed Section 99 in the context of a recording of a public official. Although Curtatone did not delve into the constitutionality of the statute, the SJC held that a recording made openly and with the speaker’s knowledge was not a “secret recording” even though it was obtained by false pretenses.
Prior Decisions on the First Amendment and What Is “Secret”
Section 99 provides in relevant part that it is a crime to intentionally, secretly record, or attempt to record without a warrant—i.e., “to intercept”—a wire or oral communication without permission of all participants. G.L. c. 272, §99 B(4). Thus, prior to Project Veritas, Section 99 was interpreted to criminalize all non-consensual, surreptitious recordings regardless of any reasonable expectation of privacy by the recorded party. See Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001) (Section 99 is “intended … strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge”). Foreshadowing Project Veritas, however, the dissent in Hyde cautioned that such a reading of Section 99 “threaten[ed] the ability of the press—print and electronic—to perform its constitutional role of watchdog.” Id. at 613 (Marshall, C.J., dissenting).
The requirement in Section 99 that all parties to a recorded communication must consent is colloquially referred to as “two-party consent.” Unlike most states’ wiretap laws, Section 99 does not provide an exception to the consent requirement for parties who have no reasonable expectation of privacy. See Project Veritas, 982 F.3d at 817, 840. Although nonconsensual audio recordings without a warrant generally violate Section 99, the SJC has also held that “actual knowledge of the recording” by the party being recorded is sufficient, and affirmative authorization or express consent is not required to avoid liability under the statute, Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), even when the party being recorded is a police officer, Hyde, 434 Mass. at 605 (citing Jackson, 370 Mass. at 507).
No prior First Circuit decision—nor any other federal case before Project Veritas—addressed directly whether First Amendment protections extended to secret recordings of public officials, including law enforcement. Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011), for example, rose out of an arrest for openly filming police officers arresting an individual on the Boston Common. There, the First Circuit defined the scope of recording activity that triggers First Amendment protection to include the “right to film government officials, including law enforcement officers, in the discharge of their duties in a public space.” Id. Similarly, Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), addressing the New Hampshire wiretap statute, extended the reasoning of Glik and held that the First Amendment protects the open recording of a police officer conducting a traffic stop. Id. at 2-3, 7. Although limited to open recordings, in Project Veritas the First Circuit observed that these decisions “suppl[y] strong support for the understanding [that First Amendment-protected recording of police] encompass[es] recording even when it is conducted ‘secretly,’ at least as Section 99 uses that term.” Project Veritas, 982 F.3d at 832.
Project Veritas: First Amendment Protects Secret Recording of Police Officers Performing Their Duties in Public
Project Veritas consolidated the appeals of two groups of plaintiffs. The plaintiffs in one appeal (the “Martin plaintiffs”) are civil rights activists who openly record police officers performing their duties in public and who sought declaratory and injunctive relief in their First Amendment challenge to a portion of Section 99. The First Circuit considered their challenge to Section 99 “insofar as it applies to bar the secret, nonconsensual audio recording of police officers discharging their official duties in public places.” Project Veritas, 982 F.3d at 826. The plaintiff of the second appeal, Project Veritas—a national media organization “dedicated to undercover investigative journalism”—challenged the constitutionality of Section 99 on several broader First Amendment grounds: (1) as facially overbroad in its entirety; (2) as applied to the prohibition against the “secret, nonconsensual audio recording of any person who does not have a reasonable expectation of privacy in what is recorded”; and (3) as applied to the prohibition against the “secret, nonconsensual audio recording of all government officials discharging their official duties in public spaces.” Id. at 822-24, 840-42.
Applying intermediate scrutiny, the First Circuit addressed the merits of the Martin plaintiffs’ claim and affirmed that Section 99 was unconstitutional in a narrow and specific set of circumstances: insofar as it imposed an outright ban on “secret recordings” made in “public spaces,” of police officers, during the discharge of their “official functions.” Id. at 827-28. The court determined Section 99 was not narrowly tailored enough to further the government’s legitimate interest in preventing interference with the officers’ ability to do their jobs and in protecting the privacy of citizens. Id. at 836. Instead, Section 99 impermissibly prohibited all secret recording, “notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.” Id. at 835-37.
In balancing the government’s interests, the court recognized that police officers surrender some of their privacy when performing their official functions and then delved into the privacy interests of the variety of citizens who interact with the police—which can include anyone from confidential informants to rape victims, minor victims, and witnesses. Id. at 838-39. As the court recognized, there is inherent tension here—citizens have greater privacy interests at stake than uniformed officers, and notice of recording may help them avoid shame or embarrassment. Id. at 839. Nonetheless, the First Circuit concluded that Section 99’s “blunderbuss prohibitory approach” was too broad to serve the important interests implicated in the Martin plaintiffs’ circumstances, noting that police officers presumably are already careful when having sensitive conversations within earshot of others, and that individuals’ privacy interests are “hardly at their zenith” when speaking to police officers in public. Id. at 837-39.
Justiciability of Pre-Enforcement First Amendment Challenges
The discussion of justiciability in Project Veritas—namely whether the plaintiffs’ pre-enforcement First Amendment claims were ripe—is thorough and a useful guide for future pre-enforcement cases. To determine whether the plaintiffs’ various claims were ripe, the First Circuit applied the two-part test from Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and evaluated: (i) the fitness of the issue for judicial review (in terms of finality, definiteness, and sufficient development of facts) and (ii) the hardship to the parties of withholding adjudication (in terms of creating a direct and immediate dilemma). Project Veritas, 982 F.3d at 825-26. Characterizing the Martin plaintiffs’ single claim as presenting a narrow facial challenge to Section 99 as applied to the secret, nonconsensual audio recording of police officers discharging their official duties in public, the First Circuit concluded the claim presented a purely legal challenge that met Article III’s ripeness demands. Id. at 825-30.
In contrast, Project Veritas’s as-applied challenges—that Section 99 violates the First Amendment by prohibiting (i) the secret recording of all individuals who have no reasonable expectation of privacy and (ii) the nonconsensual recording of all government officials in their discharge of duties in public space—evidenced “serious ripeness concerns.” Id. at 842-44. Specifically, the court concluded that the disparity between Project Veritas’s proposed secret newsgathering actions and the scope of relief sought was too great to present a well-defined, live, justiciable, pre-enforcement controversy. Id. at 842-43. Importantly, these rulings significantly narrowed the ultimate decision by vacating the lower court’s ruling on the merits that would have allowed the secret recording of any “government official” performing official duties in a public space. Id. at 824, 843-44. Also, the First Circuit affirmed the rejection of Project Veritas’s facial overbreadth claim, which would have invalidated Section 99 in its entirety, noting that Project Veritas “fails to show, as it must, that the unconstitutional applications are ‘substantial’ relative to the extensive range of applications [of Section 99 not challenged as unconstitutional].” Id. at 841. See also id. at 844 (emphasizing “the substantial protection for privacy that [Section 99] provides in contexts far removed from those that concern the need to hold public officials accountable”).
Project Veritas has sought certiorari review of the First Circuit’s denial of its facial overbreadth challenge and determination of insufficient ripeness as to its as-applied claims. The treatment of this petition will be interesting, as the Supreme Court has never addressed the prohibitions on open or secret recording of law enforcement. See id. at 835.
Curtatone: What Is “Secret Recording” that Constitutes Prohibited “Interception”?
Although Curtatone did not address the constitutionality of Section 99 like Project Veritas, it did involve an actual, discrete recording of a public official. The SJC held that a recording made openly and with consent—even if induced under false pretenses of who was recording the communication—is not a “secret recording” so as to give rise to a cognizable claim of unlawful “interception” within the meaning of Section 99.
In Curtatone, an employee of Barstool Sports, using his real name and affiliation, requested an interview with Joseph Curtatone, the mayor of Somerville. His request was unsuccessful. He then contacted a Somerville official identifying himself as a specific reporter for the Boston Globe and asked to interview Mr. Curtatone. The mayor agreed to that request, believing it to be with the Boston Globe reporter. During the interview, the Barstool Sports employee continuously maintained he was the Boston Globe reporter. Critically, at the beginning of the interview the mayor consented to it being recorded. Barstool Sports later posted the interview on its blog. Slip op. at 4.
The SJC concluded that to violate Section 99, the recording itself that must be “(1) secretly made and (2) without prior authority by all parties” to constitute a prohibited “interception.” Id. at 6. That is, “it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within [Section 99],” and the “identity of the party recording . . . or, indeed, the truthfulness with which that identity was asserted is irrelevant.” Id. at 8. In short, where the [act of] recording but not the [true] identity of the recorder was known and agreed upon” by the speaker, the recording was not made “secretly.” Id. at 10.
Thus, Curtatone further narrowed the reach of Section 99 by rejecting the mayor’s argument that the recording at issue was secret and violated Section 99 because (a) both parties must provide “actual consent” for a lawful recording, and legally effective consent was not possible to provide where he did not know the true identity of the interviewer; and (b) the Barstool Sports employee secretly heard and recorded the conversation or illegally intercepted the communication because the mayor was falsely led to believe the employee was someone else. Id. at 5. Notably, in rejecting the mayor’s assertion that his privacy rights were violated, the SJC found it “relevant to note that the plaintiff was a mayor of a city with more than 80,000 people, [who] believed he was speaking on the record to a newspaper reporter,” notwithstanding that Section 99 provides no exemption for an individual with no expectation of privacy. Id. at 10.
Project Veritas and Curtatone raise several questions. For one, how will police interactions with private citizens in public spaces change, if at all, given the new ability to secretly record? Also, given the recognition that citizens retain their privacy interests, will there be efforts to protect the rights of informants, witnesses, and victims of crime? Also, will there be another attempt to expand the scope of permissible recording to other types of government officials performing their duties in public spaces? On this point, the First Circuit recognized that the “First Amendment analysis might be appreciably affected by the type of government official who would be recorded”—an elected official, a school teacher, or a bus driver. Project Veritas, 982 F.3d at 843. Similarly, the SJC’s analysis anticipates that the identity of the public official is critically relevant to determining the applicable privacy interest. And finally, over fifty years since enactment of Section 99, will the Massachusetts Legislature reexamine the wiretap statute in light of the rapid developments in technology and recent court rulings?
 In addition to criminal penalties, Section 99 provides a civil cause of action for individuals whose “communications were intercepted, disclosed or used except as permitted or authorized” by Section 99, or whose privacy was so violated. G.L. c. 272, § 99 Q.
 “Intermediate scrutiny” requires the determination of whether the law is “narrowly tailored to serve a significant government interest” and “must leave open ample alternative channels for communication,” but need not be the “least restrictive means of achieving the government’s interests.” Project Veritas, 982 F.3d at 834-36. This procedural issue had not been addressed squarely before in similar First Amendment cases and the First Circuit’s detailed discussion is worth careful review.
Ryan E. Ferch is currently Senior Counsel at the Massachusetts Bay Transportation Authority. Until 2017, as an Assistant Attorney General, he represented the defendants in the Project Veritas and Martin cases.