An Overview Of The New Massachusetts Domestic Violence Leave Law

Fisher_Robert Sivitz_Rebeccaby Robert A. Fisher & Rebecca Sivitz

Heads Up

On August 8, 2014, Governor Patrick signed into law “An Act Relative to Domestic Violence.”  The law, passed in the wake of the brutal murder of Jennifer Martel by Jared Remy, focuses primarily on criminal justice system reform in the area of domestic violence.  It also, however, creates Section 52E of Chapter 149 of the General Laws, which requires covered employers to provide up to 15 days of job-protected leave to an employee who, or whose family member, is a victim of “abusive behavior,” including domestic violence.

Who Is A Covered Employer?

The law, which became effective immediately, applies to “employers who employ 50 or more employees.”  An Advisory from the Office of the Attorney General (“OAG”) states that the 50 employees must be “in Massachusetts.”

Who Is A Covered Employee?

The statute defines an “employee” as any individual who performs services for and under the control and direction of an employer for wages or other remuneration.  Unlike other federal and state leave laws, there is no required minimum hours of service or length of employment for eligibility.  It is unclear whether the employee must live and/or work in Massachusetts.  In the wage-and-hour context, Massachusetts courts have applied Massachusetts law to certain individuals living and working outside of the Commonwealth.  See, e.g., Taylor v. Eastern Connection Operation, Inc., 465 Mass. 191 (2013) (individuals living and working in New York could bring wage-and-hour claims where the written employment contract called for the application of Massachusetts law); Dow v. Casale, 83 Mass. App. Ct. 751 (2013) (Florida resident could bring a Massachusetts Wage Act claim where employer was headquartered in and there was a substantial connection between the employment relationship and Massachusetts).

When Is An Employee Entitled To The Leave?

An employee is entitled to the leave when the employee or a “family member” (which is broadly defined) is the victim of “abusive behavior” and the purpose of the leave is to address issues related to the abusive behavior.  “Abusive behavior” is any behavior constituting “domestic violence,” stalking, sexual assault or kidnapping.  “Domestic violence” is “abuse” directed against an employee or his or her family member by a current or former spouse; a relative by blood or marriage; a person with whom the employee or the family member shares a child; a current or former cohabitant of the employee or the employee’s family member; or a person with whom the employee or family member had a dating or engagement relationship.  “Abuse” encompasses a wide range of conduct, such as causing or attempting to cause physical harm, forced sexual activity, mental abuse, and restraint of liberty.  An employee is not entitled to the leave if he or she is the alleged perpetrator of the abusive behavior.

The employee must use the leave to address issues relating to the abusive behavior.  The statute provides a non-exhaustive list of permissible reasons for a leave, which includes to seek medical treatment, counseling, victim services or legal assistance; to secure housing; to appear in court or obtain a protective order; to meet with law enforcement officials; and to attend child custody proceedings.

A covered employee is entitled to up to 15 days of leave in any 12-month period.  The employer has sole discretion as to whether the leave is paid or not.  Regardless, an employee must exhaust all paid leave, such as vacation or sick time, before using the new statutory leave unless the employer waives this requirement.

How Must An Employee Request Leave?

An employee must provide advanced notice of the need for a domestic violence leave unless there is a threat of imminent danger to the employee or a qualifying family member.  In such case of emergency, notice may be provided within three workdays of the leave, and may be provided by either a family member or a professional assisting the employee.

An employer may require documentation supporting the need for a domestic violence leave.  Qualifying documents include a protective order, a court or public agency letter, a police report, medical records, witness statements, or a sworn statement by either a professional or the employee.  An employer may not require documentation of an arrest, a conviction or a police report.  In general, documentation must be supplied within a reasonable time after it is requested by the employer.  If, however, the absence is unscheduled (such as when there is a threat of imminent danger), an employee has thirty days from the last unauthorized absence to supply sufficient documentation before he or she may be disciplined.

What Are Employers’ Obligations Under The Statute?

An employer must allow an eligible employee to take the requested leave, and is prohibited from discharging or discriminating against an employee for exercising his or her statutory rights.  Employers also may not coerce, interfere with, restrain or deny the exercise of any rights under the statute.  When an employee returns to work, the employer must reinstate the employee to his or her original job or an equivalent position.  Moreover, the statute imposes strict confidentiality obligations on an employer and permits disclosure of information relating to a leave only under limited circumstances.  Covered employers must notify employees of their rights under the statute.  The OAG has not mandated a particular manner or form for such notice.

What Are The Enforcement Provisions?

The OAG is empowered to enforce the law and may seek injunctive or other equitable relief.  The Fair Labor Division has developed a form for employees to report an employer’s failure to provide leave under the statute.

Employees may also bring a private civil action.  The law amended the Massachusetts Wage Act, G.L. c.149, §150, to include claims relating to domestic violence leave.  As a result, a plaintiff who establishes a violation of the domestic violence leave law is entitled to automatic treble damages for any lost wages or other benefits, and reasonable attorneys’ fees.

What Are Some Best Practices for Employers?

The new domestic violence leave law creates challenges for employers.  Most importantly, employees seeking leave may need to disclose to their employer information that is highly personal and that involves difficult and potentially life-threatening situations.  Employers may not want to know the details of the employee’s situation and thus may decline to request supporting documentation.  Further, many employers may need to revise the way in which they address employee absences to ensure that requests for domestic violence leave are treated with sensitivity and confidentiality.  Finally, employers may want to maintain a written policy regarding domestic violence leave.  In addition to notifying employees about whether the leave is paid or unpaid, the policy might address whether employees will need to exhaust paid leave first and might designate an employee as being responsible for processing leave requests.

 

Robert A. Fisher is a partner in the Labor and Employment department of Foley Hoag LLP. Rebecca Sivitz is an associate in the Labor and Employment department of Foley Hoag LLP.


The Business Litigation Session Turns 15

Kaplan_Mitchellby Judge Mitchell H. Kaplan

Voice of the Judiciary

*The following judges have served in the BLS since its inception:  Allan van Gestel; Margot Botsford; Ralph Gants; Nonnie Burnes; Susan Garsh; Margaret Hinkle; Judith Fabricant; Stephen Neel; Christine Roach; Janet Sanders; Peter Lauriat; Thomas Billings; and Mitchell Kaplan

 

The Business Litigation Session of the Superior Court received its charter in 1999, and although Judge Allen van Gestel did not preside over the first BLS hearing until 2000, those of us currently charged with the care and maintenance of the BLS believe it to be celebrating its fifteenth birthday.  On November 18, 2014, the New England Law Foundation and Boston Bar Association were kind enough to give the BLS a birthday party at the Boston College Club.  The celebration included a panel discussion moderated by Paul Dacier, executive vice president and general counsel of EMC Corporation and past president of the BBA.  The panelists including six sitting or retired judges, all of whom served at one point as the administrative judge of the BLS and whose service on the BLS collectively spanned the fifteen years that it has been in existence: Judges Allen van Gestel, Margaret Hinkle, Judith Fabricant, Janet Sanders, and now Chief Justice of the Supreme Judicial Court, Ralph Gants. Judge van Gestel was warmly recognized as the “father” of the BLS. Chief Justice Rouse was applauded for her steadfast support for the BLS during her entire tenure as Chief of the Superior Court. The room was full of well-wishers, and, I think it fair to say, a good time was had by all.

A fifteenth birthday is also a good occasion to reflect on how well the BLS has met the needs for which it was created.  I am able to consider this question from two different courtroom vantage points:  the well and the bench. I was appointed to the Superior Court in 2009; prior to that I represented clients in many BLS cases during the first nine years of its life. For the past two years I have presided in BLS-1, sharing the session with Judge Tom Billings.  I should point out that these observations are my reflections and not those of any other BLS judges or an institutional report.

In the late 1990’s, I was among the lawyers advocating for the creation of a dedicated session for business cases. The Delaware Chancery Court had, of course, long since become the court of record for interpreting business law and defining the relationships between corporations and their boards and shareholders. Other states were then beginning to establish specialized courts or sessions for business cases.  At that time, whether it was fact or self-interested perception, some attorneys who handled business cases believed that those cases did not receive the attention that they required in the very busy time standards sessions.  There was also a concern that attorneys with options to file their cases in other states, federal court or private arbitrations were going to other forums, with the result that Massachusetts appellate courts did not have the opportunity to write on many of the developing issues in business law.  Other attorneys with different practices rightfully argued that many other kinds of cases, such as medical malpractice, products liability and employment disputes, presented equally complex issues.  Whatever the merits of those differing positions, the BLS was established in 1999 and  heard its first motions in 2000, and a second BLS session was added in January 2002.

Is the BLS achieving its mission?  Given my present assignment as a BLS judge, it is apparent that I am no longer an unbiased observer, but I believe that it is.  We can start with an objective measure: as of July 1, 2014, the BLS had disposed of 3,698 cases since inception.  A review of the currently pending cases is illustrative of the types of cases the BLS handles, which are very much broader than what I might think of as classic “business” disputes.  As could be expected, there are a number of cases involving corporate governance, both securities class actions as well as disputes between stakeholders in closely held companies and partnerships; there are also several professional malpractice claims including legal, accounting and engineering services; there are a substantial number of consumer class actions involving products and services; there are a number of trade secret cases, often presented in the context of covenants not to compete, and other intellectual property cases arising in the context of breach of contract claims; there are a number of insurance coverage disputes, and, of course, a broad variety of commercial contract disputes.  As always, there are cases arising out of some government action or program. At present, the licensing of medical marijuana dispensaries has generated many BLS cases, and the Attorney General’s proposed settlement with Partners is receiving much media attention.

Regardless of the subject matter of any particular case, I think that the BLS is at its best when it assists the parties in managing the complex case with multiple moving parts and often multiple parties.  Blessed with a smaller case load than the time standards sessions, every case begins with a Rule 16 conference scheduled as soon as issues are joined.  All BLS judges encourage the parties to consider participating in what we used to call the Pilot Project, but now refer to as the Discovery Project, in which the parties expressly agree on the scope and methods of discovery. However, we work with the attorneys in every case to tailor a pretrial schedule and discovery plan to the needs of the case.  We will want to know if there will be contentious issues because of the volume of electronically stored data.  Does it make sense to sequence discovery?  Does it make sense to tee-up resolution of a particular claim or defense that might dispose of the case, or perhaps facilitate settlement, before discovery proceeds on other issues?  Because we have the time to work closely with counsel and to understand the issues presented by a case, we are able to resolve many discovery disputes expeditiously and sometimes without the need for formal motion practice.

I attended a conference of business law judges from across the country last year.  There was a panel addressing issues arising out of electronic discovery.  (I think every conference has a panel like that now.)  The lawyers on the panel both emphasized that in their experience the biggest factor in the expeditious resolution of a data driven litigation is the trial judge’s willingness to be involved in discussions concerning the scope and timing of electronic discovery from the outset of the case.  Beginning well before my service on the BLS, the BLS judges have been ahead of the curve on this aspect of case management.  At the fifteenth anniversary event, several of the judges on the panel described mammoth cases over which they presided some years ago in which they conducted multiple hearings and worked with counsel to adopt discovery plans in which the process was broken down to manageable bites (or bytes).

We do not have as many jury trials in the BLS as are tried in the time standards sessions.  From my perspective as a BLS judge that has benefits and detriments.  I like jury trials; however, having unscheduled time many mornings helps in preparing adequately for afternoon motions and delivering written opinions in a timely manner.  All of the BLS judges try to provide written, and hopefully reasoned, opinions explaining our rulings. We send them all to the Social Law Library so that attorneys appearing in the BLS can have a sense of where a particular judge stands on certain kinds of issues and cases.

When the cases do try, they will typically take three to four weeks.  In a time standards session it is difficult to devote a month to a single case, but the BLS does that regularly; and, as was true when I was trying BLS cases, when a case is scheduled for trial in the BLS, even for a lengthy trial, it is a hard date.  You can use it to reserve hotel rooms for your out-of-state witnesses. And, we will give you a timely trial, regardless of its anticipated length.

Another benefit of having unscheduled time is the ability to fill it with matters needing immediate attention.  A great many of the cases accepted in the BLS include requests for preliminary injunctive relief.  Indeed, for a lot of those cases the definitive ruling will be the grant or denial of a preliminary injunction.  I am coming to believe that in many of those cases at least a brief evidentiary hearing promptly scheduled can help me better understand the case and be more confident in my decision.  I am increasingly offering the parties the opportunity to present or cross-examine key witnesses, particularly experts, at preliminary hearings.

In the years that I have been a judge, I have learned to be judicious in telling jokes or war stories from the bench because the lawyers always laugh, in the first instance, and look interested, in the second, regardless of whether the joke is funny or the story boring.  Nonetheless, I conclude with a couple stories from my years of practice in the BLS.  My hope is that I, and the other current custodians of the BLS sessions, are doing the job as well as the judges who presided in the early years of the BLS:  the giants on whose shoulders we stand.

When I was in practice, I remember on a number of occasions explaining to clients with general counsel offices in other states that we should file our case in the BLS, even though we had diversity jurisdiction and could file in federal court.  There were only two BLS sessions, the judges were both really smart and hardworking, it didn’t matter who we drew, and if we had to try the case they would give us a prompt trial date.  I no longer have clients (which I must admit is a nice part of my job), so I don’t have that conversation any more, but I hope there are lawyers who practice in the BLS still having it with their clients.

Sometimes, the BLS works too efficiently.  At our fifteen year celebration, the panelists were seated in front of a large window that looked out on the roof-tops of International Place.  As I listened to Judge van Gestel speak, I was reminded of a jury waived case I tried before him a decade or so ago involving that building.  I represented one of the two partners in the partnership that owned the building.  They had a dispute about their respective rights under the partnership agreement and that led to a trial that took a week.  A few days after it ended, I left for a short vacation.  It never occurred to me that Judge van Gestel would render a decision in less than a week, but he did, many pages, and my side didn’t do well.  While the young lawyers who had helped me try the case were debating whether to call me on vacation with the unhappy news, my client’s general counsel, who had already heard about the decision from the gloating, victorious partner, called me.  He was not happy about the decision, but more than unhappy that he hadn’t first heard about it from me.

I try hard to work quickly and never keep matters under advisement for lengthy periods, but I can’t say that I am as efficient as Judge van Gestel was—maybe sometimes that is a good thing.  In any event, I trust that the bar and the business community believe that the BLS session is continuing to meet the important needs for which it was formed fifteen years ago.

 

Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court.  He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.


Should Massachusetts Put Women with a Substance Abuse Problem in Prison?: A Critique of the Use of G. L. c. 123, § 35 to Involuntarily Commit Female Drug and Alcohol Abusers

Honig_Jenby Jennifer Honig

Legal Analysis

The scourge of substance abuse afflicts women in the Commonwealth in alarming numbers. In 2012, one-third of all adults admitted to treatment programs in Massachusetts were women. And even before the Commonwealth was hit with the recent opioid crisis, the overall demand for substance abuse treatment for both men and women exceeded the state’s available capacity. Now, the system is strained yet further. “The epidemic is growing at rates that are faster than we can provide support services,” lamented the head of the Association of Behavioral Healthcare, in March, 2014. Here’s the broader perspective: on a national level, only 11% of people with substance abuse problems receive the treatment they so desperately need.[1]

In light of this crisis, the time has come to reevaluate the Commonwealth’s use of Section 35 of General Law Chapter 123 to civilly commit people in need of substance abuse treatment. Most disturbing, for women, the use of this statute leads to housing women in state prison when they have committed no crime. There, women receive deficient treatment while enduring the trauma of imprisonment.

The Legal Basis for Involuntarily Committing Substance Abusers

The Massachusetts Legislature first addressed substance abuse in 1885. St.1885, c. 339, §§ 1, 2. Nearly a century later, our modern authority for civilly committing substance abusers (passed in 1970) is General Law Chapter 123, Section 35. Section 35 provides for the involuntary commitment and treatment of a “person who chronically or habitually consumes alcoholic beverages … or consumes or ingests controlled substances ….” To commit a person, the court must find that she is an alcoholic or substance abuser and there is a likelihood of serious harm as a result of her alcoholism or substance abuse.

Many other states passed similar provisions after 1962, when the U.S. Supreme Court held that although treating addiction as a crime was unconstitutional, a state could establish a program of compulsory treatment, including periods of involuntary confinement. Robinson v. California, 370 U.S. 660, 665 & n.7 (1962). Consistent with Robinson, the Supreme Judicial Court, in 1968, held that civil commitment was justified, but only for the protection and treatment of the individual and the protection of the public, and only if it had a rehabilitative focus. Nason v. Superintendent of Bridgewater State Hosp., 353 Mass. 604, 610-11 (1968) (noting the practice, at other public mental health hospitals in Massachusetts, of “encourage[ing] patients to [make] progress towards out-patient status”).

A decade after Robinson, the U.S. Supreme Court spoke of involuntary civil commitment as a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509 (1972). The Justices also explained that although a court may involuntarily commit a person under a state’s parens patriae interest in providing care to its citizens who are unable to care for themselves, such action requires a showing that the person is incapable of understanding and protecting her own interests and safety because of a mental disability. Id. at 509, n.4. Also, under its police power, a state may involuntarily commit an individual who, as a result of mental illness or mental abnormality, poses a serious danger to self or others. Addington v. Texas, 441 U.S. 418, 426, 427-28 (1979) (person with mental illness); O’Connor v. Donaldson, 422 U.S. 563, 570 (1975) (same); Kansas v. Hendrick, 521 U.S. 346, 360 (1997) (sex offender). These interests imply that the state has an obligation to offer care and treatment consistent with the judgment of qualified professionals.[2]

These common-law principles are incorporated in our current statutory law. Section 35 permits a court to involuntarily commit an abuser of alcohol or drugs for up to ninety days—even absent any criminal behavior—when that abuse: (1) substantially injures the person’s health or substantially interferes with her social or economic functioning; or (2) has resulted in the person’s loss of self-control. The statute appears grounded primarily in the exercise of parens patriae authority: “[s]uch commitment shall be for the purpose of inpatient care in public or private facilities … for the care and treatment of alcoholism or substance abuse.” G. L. c. 123, § 35, par. 4.

The statute also dictates where a person should be civilly committed: the court must first seek placement at an inpatient facility approved by the Department of Public Health (DPH). G. L. c. 123, § 35, par. 4. However, when a DPH-approved facility is unavailable, the court may commit a man to the Massachusetts Alcohol Substance Abuse Center (MASAC) treatment facility located in Bridgewater State Hospital, and a woman to state prison (to be housed separately from inmates, if she is not a pretrial detainee or convicted criminal). Devlin v. Commonwealth, 83 Mass. App. 530, 534 (2013). The person’s commitment must be reviewed by the superintendent of the facility after 30, 45, 60, and 75 days to determine whether continued commitment is necessary to ensure the person’s health and safety. After ninety days, DPH must provide one year of case management to arrange and coordinate support and services in the community.

Finally, involuntary civil commitment may only occur when less restrictive alternatives to commitment are unavailable. Donaldson, 422 U.S. at 576; see also Commonwealth v. Nassar, 380 Mass. 908, 917-18 (1980). Thus, judges hearing Section 35 petitions should consider whether less restrictive alternatives to civil commitment are feasible to address the presenting addiction problem.

For Many Women, Section 35 Commitments Provide Deficient Treatment

Under Section 35, the first choice for housing a civilly-committed woman for substance abuse is a DPH-approved facility, such as the Women’s Addiction Treatment Center (WATC). This center is a ninety-bed, staff-secure treatment facility in New Bedford. At WATC, women receive detoxification services and post-detoxification treatment. Eventually, women are allowed to leave the facility to participate in community activities. Upon discharge, women may participate in additional step-down programs providing treatment and support services in the community.

Although a DPH-approved facility like WATC is the preferred place to house civilly-committed women, WATC consistently operates at capacity and cannot accommodate all of the women committed under Section 35. In February, 2014, a WATC representative stated, “Our beds are filled every day, all our beds ….”  When WATC is full, courts send women—even those with no connection to any criminal activity—to MCI-Framingham, a locked, medium-security prison operated by the state Department of Correction (DOC). At least 60% of women housed at MCI-Framingham under Section 35 have no criminal basis for being housed there.

But MCI-Framingham cannot and does not provide adequate treatment for civilly-confined women. As a state prison, MCI-Framingham follows DOC treatment/detoxification protocols, which are more limited than those available at DPH-licensed facilities. For instance, women withdrawing from heroin at MCI-Framingham receive only over-the-counter medication, such as acetaminophen and ibuprofen, rather than federally approved drugs for the treatment of opioid addiction, such as methadone, Suboxone, or Vivitrol. Moreover, although detoxification takes one week or less, the average duration of recent confinements ranges from 8 to 22 days.

In addition, MCI-Framingham, unlike WATC, offers no post-detoxification treatment to women without criminal involvement committed there pursuant to Section 35. Instead, the prison moves civilly-committed women to a modular structure with no post-detoxification services—one that also houses pre-trial detainees—to await discharge.[3]

To be sure, in 2013, MCI-Framingham began referring discharged, civilly-committed women to services provided by community programs. But women who receive these services fare much worse than those who receive post-detoxification treatment from WATC.[4]

Deficiencies in treatment aside, what is more troubling for women civilly committed to MCI-Framingham is the trauma and stigmatization of imprisonment. The shame and humiliation that go along with being housed with criminals significantly impedes these women’s attempts to recover from their serious substance abuse problems.

Committing Substance Abuse Victims to State Prison May Be Unconstitutional

A group of women civilly committed to MCI-Framingham under Section 35 (with no criminal basis for their commitment) has recently filed a class action in federal court, alleging that their commitment violates substantive due process. They claim that their imprisonment is incompatible with the statutory purpose of inpatient substance abuse treatment, and substantially departs from any current professional standard of care for helping people recover from addiction.[5] According to the plaintiffs, Massachusetts is the only state that imprisons women on the purely civil basis of substance abuse disorders. The suit also alleges disability discrimination under federal law, on the theory that commitment under Section 35 criminalizes addiction, and thus unnecessarily stigmatizes women for their disease. The suit was filed on the heels of at least nine reports (written between 1987 and 2011) recommending that Massachusetts stop using Section 35 to commit women to MCI-Framingham on purely civil grounds.

In light of these problems, the Legislature should amend Section 35 so that women without criminal involvement cannot be sent to MCI-Framingham.[6] At the same time, the Legislature must ensure sufficient funding for court-ordered detoxification, both at DPH-approved facilities, and after a patient’s release from such a facility. Although the Legislature did augment funding for WATC in June, 2014, it remains to be seen whether the additional monies will suffice to prevent women from having to be committed to state prison under Section 35.[7]

Beyond Section 35: Voluntary Substance Abuse Programs

Involuntary commitment does not best address the problem of substance abuse facing Massachusetts women. Since Section 35 was enacted, research has shown that, whenever possible, treatment should be: (1) voluntary; (2) available long-term; and (3) community-based. Accordingly, in addition to amending Section 35 to eliminate the danger of housing women in state prison solely for substance abuse, Massachusetts should shift resources to programs that meet these treatment criteria.

First, the Commonwealth should devote its resources to voluntary treatment. Indeed, a review of thirty years of research into the efficacy of coerced substance abuse treatment found no consistent evidence that involuntary treatment produced better outcomes than voluntary treatment.[8] Besides affording women additional opportunities to overcome their addictions, voluntary treatment would also save money. In fiscal year 2012, DPH spent $34 per day for each person committed under Section 35, to cover the expense of “civil commitment level of care.”[9] And this expenditure does not include the additional costs associated with the judicial process.

Additionally, the Commonwealth should expand access to longer-term post-detoxification care. While treatment duration varies, for most people, long-term or repeated episodes of care are essential for enduring abstinence.[10] Today, it is more difficult to access post-detox care than detox care, in part because insurance usually covers detox care (although, curiously, not at MCI-Framingham), but does not cover longer-term care, which is funded by DPH. Effective October, 2015, insurance coverage for detox and step-down services will expand, but coverage will still be limited to the initial phases of treatment.

Finally, Massachusetts should shift resources from inpatient to community-based care, particularly for opioid addiction, which has surpassed alcoholism among women committed under Section 35.[11] Recent guidelines on opioid treatment, issued by the Institute for Clinical and Economic Review (ICER), suggest that, for most patients, long-term medication is more effective than short-term inpatient detoxification.[12] Concerning post-detoxification treatment, ICER’s founder argues that most patients get equal or better results from long-term outpatient treatment than from inpatient rehabilitation.[13] Increasing community-based care also makes sense given many women’s roles as caregivers—53% of women admitted to WATC have children.[14] Finally, outpatient care benefits the large number of women with co-occurring mental-health and substance abuse disorders, a combination that is associated with poorer treatment outcomes and higher rates of dropout from substance abuse treatment.[15]

In conclusion, Section 35 needs immediate revision to end civil commitment of women to MCI-Framingham. Beyond that change, our growing understanding of women’s substance abuse treatment should promote an examination of the legitimacy of the Section 35 treatment model and a thorough review of the options available to women, and men, for voluntary, community-based treatment.

 

Jennifer Honig is a Senior Attorney at Mental Health Legal Advisors Committee (MHLAC) where she focuses on institutional advocacy and community rights of persons with disabilities. She graduated from Georgetown University Law Center in 1991 and has been at MHLAC since 1992.

 

Endnotes

[1] Mass. Dep’t Pub. Health, Findings of the Opioid Task Force and Department of Public Health Recommendations on Priorities for Investments in Prevention, Intervention, Treatment and Recovery, June 10, 2014, http://www.mass.gov/eohhs/docs/dph/substance-abuse/opioid/report-of-the-opioid-task-force-6-10-14.pdf, at 2.

[2] Steven Schwartz, Punishing the Handicapped: The Discriminatory Treatment of Women with Alcohol Disabilities, 76 Mass. L. Rev. 120, 124 (1991).

[3] Although General Law Chapter 125, Section 16, requires that DOC maintain at MCI-Framingham “a facility for the treatment and rehabilitation of alcoholics,” it never established such a facility. To the extent that MCI-Framingham has substance abuse programs for sentenced prisoners and pretrial detainees, DOC does not allow civil committees to participate (although civil committees are allowed to comingle with pretrial detainees).

[4] As of June 2013, more women are referred to residential treatment from MCI-Framingham (43%) than from WATC (21%), fewer women from MCI-Framingham are released to an outpatient facility (32%) than from WATC (58%), and more women from MCI-Framingham return to court (11%) than from WATC (3%) or to an awaiting trial unit (5% compared to 0%). Erika Kates, Moving Beyond Prisons: Creating Alternative Pathways for Women: Briefing Note #1 Civil Commitments for Women in Massachusetts (2013), https://www.wcwonline.org/pdf/ekates/CivilCommitmentsForWomenInMArev.pdf, at 2.

[5] Jane Doe v. Patrick, No. 1:14-cv-12813 (D. Mass. filed June 30, 2014). In 1989, advocates addressed the same issues in a civil-rights damage action on behalf of civilly-committed women at MCI-Framingham pursuant to Section 35, challenging such commitments as punitive and harmful. The parties settled, with state defendants agreeing to create new community-based treatment programs and cease the practice of committing such women to prison. Hinckley v. Fair, C.A. 88-064 (Hampshire Super. Ct. Nov. 13, 1990).

[6] See An Act relative to the civil commitment of women for alcoholism and substance abuse to MCI-Framingham, H. 1790, 188th Gen. Ct. (2013-2014).

[7] Even if the Legislature approves spending, ongoing funding is susceptible. The acute treatment system was downsized in the early and mid-2000s, resulting in an increase in commitments to MCI-Framingham.

[8] Jeffry C. Eisen, Civil Commitment for Substance Abuse, 15 Virtual Mentor 844 (Oct. 2013), http://virtualmentor.ama-assn.org/2013/10/pdf/ecas4-1310.pdf, at 847. One might argue that the state could wholly abandon involuntary treatment without ill effect. Although most substance abusers are not dangerous, a shift to voluntary services would still allow the confinement of persons who have evidenced dangerousness through the commission of a crime. Limiting confinement to individuals who enter the criminal justice system is preferable to a system that involuntarily confines a broad swath of people who suffer from addiction, a medical condition.

[9] Mass. Dep’t Pub. Health, Sec. 35 – Civil Commitments: FY 12 Year End Report (2012), at 15. In Fiscal year 2012, 14 % of women committees were self-referrals. Id. at 14.

[10] National Institute on Drug Abuse, Principles of Drug Addiction Treatment: A Research-Based Guide (3d. ed. Dec. 2012) http://www.drugabuse.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition/principles-effective-treatment.

[11] In Fiscal Year 2012, almost half of the women admitted to WATC were addicted to opiates and only 38% to alcohol. Mass. Dep’t Pub. Health, supra note 9, at 13.

[12] ICER, Management Options for Patients with Opioid Dependence: A Review of Clinical, Delivery System, and Policy Options, July 2014, at 48-51, http://cepac.icer-review.org/wp-content/uploads/2014/04/CEPAC-Opioid-Dependence-Final-Report-For-Posting-July-211.pdf.

[13] Felice J. Freyer, Priorities in addiction treatment bill debated: Some say inpatient stays are ineffective, Boston Globe, July 29, 2014, at B1.

[14] Mass. Dep’t Pub. Health, supra note 9, at 14.

[15] SAMHSA, Substance Abuse Treatment: Addressing the Specific Needs of Women: A Treatment Improvement Protocol 51 (2014), http://store.samhsa.gov/shin/content//SMA14-4426/SMA14-4426.pdf, at 158. Many female substance abusers need mental health services. In Fiscal Year 2012, 53% of women admitted to WATC were taking psychiatric medication, and 14% had experienced psychiatric hospitalization within the previous six months. Mass. Dep’t Pub. Health, supra note 9, at 14. A study of the effects of managed care on the Massachusetts Medicaid population found that substituting outpatient for inpatient care for dually diagnosed individuals led to a decrease in hospital admissions and length of stay. Barbara Dickey et al., Limiting Inpatient Substance Use Treatment: What are the Consequences?, 60 Med. Care Res. Rev. 332 (2003).


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

by Meg McKenzie Feist and Megan B. Felter

The Profession

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

The Volunteer Lawyers Project

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

Individuals in Need

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

How Can Lawyers Help?

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

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

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

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

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

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

An Enriching Experience

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

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

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


Aftermath: The Legal Community’s Response to the Boston Marathon Bombings

by Robert A. Whitney*

Viewpoint

*Please note that the opinions expressed in this Viewpoint are solely those of the author and do not necessarily reflect or represent the position of the Massachusetts Division of Insurance.

Whitney_RobertOn Patriots’ Day, Monday, April 15, 2013, the 117th annual Boston Marathon began in much the same way as the previous 116 Boston Marathons had begun, with runners crowding the starting line in Hopkinton awaiting the gun, and thousands of spectators lining the race course to see the racers go by.  At the finish line, crowds had gathered to await the winning runners and cheer on the thousands of non-professionals who completed the 26.2 miles from Hopkinton to Boston.

I was one of those people, standing on the right side of Boylston Street facing the finish line, watching for a friend.  As my friend ran past me toward the finish line, I cheered and then left the area, heading back to my office at the Division of Insurance.  About 20 minutes later, at 2:49 pm, the first of two bombs exploded outside Marathon Sports on Boylston Street.  A second blast came 13 seconds later, just before the finish line near Copley Square.

The explosions killed three spectators and injured over two hundred and fifty others.  The area around the two explosions—nearly a mile long and three blocks across—was immediately closed off.  The Copley Square area did not reopen until April 24, 2013, more than a week after the Boston Marathon bombings.

The Boston legal community immediately stepped up to help the victims and their families.  For example, as noted in the Boston Business Journal, the Boston Bar Association (“BBA”) was among the first to provide assistance by recruiting volunteer attorneys.  Within ten days of the bombings, some 125 attorneys, five law firms and law students had already signed up to help individuals and small businesses.  The Massachusetts Bar Association (“MBA”) also reached out to its membership, asking them to provide free services to affected persons and property owners, including helping victims of the bombings with applications to the “One Fund Boston,” a compensation fund that raised more than $60 million for the victims and their families.

The MBA proposed that victims be permitted to submit personal statements about their injuries and the effect that the bombings have had on their lives, in addition to merely submitting just medical records.  BBA volunteer attorneys also helped marathon bombing victims fill out One Fund Boston claims.  In total, the volunteer attorneys helped 14 victims complete One Fund Boston claims, including making three home visits to meet with those who are unable to leave home because they were still recovering from physical injuries.

Many local businesses also faced an immediate, major issue after the bombing: whether the damage from the explosions themselves and from the resulting lost revenue, would be covered by their respective insurance policies.  The issue turned in part on an important matter of insurance law, namely, whether the bombings at the Boston Marathon could be viewed as an “act of terror.”  To much of the general public, there was little doubt that the Boston Marathon bombings were an “act of terror;” even President Barack Obama, in statement on April 16, 2013, said that, although the perpetrators were still unknown, the bombing was an “act of terror,” and that “[a]ny time bombs are used to target innocent civilians, it is an act of terror.”

But from an insurance perspective, the situation was less clear.  After the terrorist attacks on “9/11” in 2001, the insurance industry began to write exclusions into business insurance policies, that would preclude coverage relating to business interruption and lost income resulting from “acts of terror.”  Many of the insurance policies held by businesses affected by the Boston Marathon bombings contained these so-called “terrorism exclusions.”  Of course, determining exactly what is considered to be a “terrorist act” for insurance exclusion purposes is not clear cut.  If the Boston Marathon bombings were to be considered “acts of terror,” that potentially would trigger the exclusions contained in local businesses policies, then there might be no coverage available to those businesses for any physical damage and loss income resulting from the explosions.

The Boston legal community responded to these insurance-related issues by offering pro bono legal services to local, affected businesses to help them determine whether they could make insurance claims for losses including business interruption, property damage and relocation expenses, despite any “terrorism exclusions.”  As reported in the Boston Globe, one priority for the BBA’s volunteer lawyers was to make sure that business owners were able to file their claims with their insurance carriers in a timely fashion, and to make the best arguments in favor of finding insurance coverage available for any damage.

In the immediate aftermath of the bombings, the Massachusetts Division of Insurance (“Division”) issued a bulletin detailing appropriate procedures for insurers to use in reviewing claims made as a result of the bombings.  The Division was concerned that all insurers “promptly investigate all claims for all lines of coverage including, without limitation, business interruption insurance, home insurance, property insurance and health insurance.”  The Division also sought to make sure that any insurer’s investigation of any claimed loss was done strictly on a “claim-by-claim basis.”

In the weeks and months following the Boston Marathon bombings, insurers paid the vast majority of the insurance claims made with respect to damages from the explosions, and the Division is unaware of any claims for damages being denied by any carrier because of any “terrorism exclusion.”  Insurers may have had difficulty determining exactly what constituted “terrorism” for purposes of excluding insurance coverage, particularly where the definition of “act of terror” might be different in each affected insurance policy, and where the burden would be on the insurer to affirmatively demonstrate the applicability of each policy’s exclusion.

The volunteer work of the MBA, BBA, law firms, individual attorneys and law students in the aftermath of the bombings enabled victims to make claims for compensation for their injuries that they otherwise may not have been able to make.  Moreover, affected businesses were likely back up and running faster due to the assistance of the volunteers.

There can be no doubt that the immediate and strong pro bono efforts of these lawyers and law students during this terrible time made a bad situation much better for many individuals and businesses that suffered from the effects of the Boston Marathon bombings.

Robert A. Whitney is currently the Deputy Commissioner and General Counsel of the Massachusetts Division of Insurance, a position to which he was appointed in 2011.  Previously in private practice for over 20 years, he has frequently written and spoken on insurance and reinsurance topics.  


Massachusetts Leads The Nation On The Attorney-Client Privilege For Law Firms

by Robert M. Buchanan, Jr.

Case Focus

BuchananThe Supreme Judicial Court of Massachusetts has taken intellectual leadership on an issue of nationwide importance for the legal profession.  RFF v. Burns & Levinson, 465 Mass. 702, 703 (July 2013) addressed “whether confidential communications between law firm attorneys and a law firm’s in-house counsel … are protected from disclosure to the client by the attorney-client privilege.”  The SJC ruled firmly that the privilege does apply the first time this issue has been resolved by the highest court in any jurisdiction.

Examples Of The Issue In Practice

The Boston Bar Association filed an amicus brief in the RFF case.  We provided several practical examples of how in-house counsel function in law firms.

Example 1:  Law Firm represents Client A and also represents Client B.  Client B calls Lawyer asking for urgent advice about an affiliate of Client A.  Does Lawyer have a conflict of interest?

Example 2:  Lawyer is preparing for a strategy discussion with Client, which is scheduled to begin in a few hours.  Suddenly Lawyer realized that he may have made a technical or strategic mistake.  What should he do?  Does he need to disclose something to Client?

Example 3:  A real estate developer Client sends a letter accusing Law Firm of malpractice, and at the same time insists that Law Firm continue performing work for the developer.  Should Law Firm continue performing work for this Client?

In each of these three scenarios, the lawyer needs guidance; the law firm’s in-house counsel is in the best position to provide guidance; and the client will benefit if the lawyer obtains proper guidance promptly.

The Facts Of The RFF Case

The RFF case was similar to Example 3.  Real estate lawyers received a demand letter from their client, a real estate developer.  The lawyers faced a difficult set of questions.  Should they argue with the client?  Should they continue to represent the client?  How could they do both at the same time?  The lawyers sought advice from their partner who was “designated to respond to ethical questions and risk management issues.”  RFF, 465 Mass. at 704.

The real estate developer later filed a malpractice action and sought to take depositions.  The Business Litigation Session — in a well-reasoned opinion by Judge Billings, dated November 20, 2012 ruled that the attorney-client privilege protected the lawyers from interrogation about their discussion with in-house counsel.

The SJC’s Analysis

The SJC affirmed, stating a logical series of principles, as the BBA had advocated.

1.         Lawyers in law firms often need advice.

Law firms, like corporations, face a vast and complicated array of regulatory legislation, where the line between permissible and prohibited conduct is not always an instinctive matter.

RFF, 465 Mass. at 708-09, quoting Chambliss, The Scope of In-Firm Privilege, 80 Notre Dame L.Rev. 1721, 1756 (2005).

2.         The attorney-client privilege enables in-house counsel to give advice.

Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm’s reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities:  it guarantees the confidentiality necessary to ensure that the firm’s partners, associates, and staff employees provide the information needed to obtain sound legal advice.

RFF, 465 Mass. at 704-10.

3.         There is no principled reason to reject the privilege.

Lower courts in some other jurisdictions had ruled that the attorney-client privilege does not apply.  These courts have held that the law firm is impaired by a conflict of interest when the firm represents itself adverse to a current client.  The SJC ruled, to the contrary, that the law firm can’t avoid analyzing what to do, and its analysis should be protected by the attorney-client privilege.  Justice Gants stated the critical distinction as follows:

. . .[A] client is entitled to full and fair disclosure of facts that are relevant to the representation, including any bad news, and to sound legal advice from its law firm.  But a client is not entitled to revelation of the law firm’s privileged communications with in-house or outside counsel where those facts were presented and the sound legal advice was formulated.

RFF, 465 Mass. at 716 (emphasis added).

The Privilege Applies If Four Requirements Are Met

The BBA’s amicus brief proposed a three-part test for applying the attorney-client privilege to in-house counsel.  These three requirements were adopted by the SJC in the passage below.  The SJC also added a fourth requirement, confidentiality, which is consistent with them.  The SJC held:

For the privilege to apply, four conditions must be met.  First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs.  Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter….  Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client….  Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.

RFF, 465 Mass. at 723 (emphasis added).

Conclusion

All Massachusetts law firms should review these four requirements.  Although the SJC’s holding is not binding outside Massachusetts, its powerful reasoning should be persuasive in other states as well.  In the long run, this analytical clarity should benefit all U.S. law firms and the clients that they serve.

Robert M. Buchanan, Jr. wrote the Boston Bar Association’s amicus brief, pro bono, in the RFF case.  Mr. Buchanan is Chair of the Ethics Committee at Choate Hall & Stewart, where he is a partner in the Litigation Department and leads the Antitrust practice.  


Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases

by Alex Philipson

Case Focus

Philipson_AlexIn the mid-1920’s, in one of America’s most sensational cases of juvenile homicide, teenagers Nathan Leopold and Richard Loeb bludgeoned a neighbor to death in Chicago. At about the same time, a thousand miles away in Boston, the Supreme Judicial Court declared that a prosecutor seeking an indictment should, in appropriate instances, do more than present evidence to the grand jury; he should also give advice on the law. See Attorney Gen. v. Pelletier, 240 Mass. 264, 307 (1922). Nearly a century later, the concerns of these seemingly unrelated cases—juvenile murder and grand jury instructions—came together in ways never before seen in Massachusetts.

In Commonwealth v. Walczak, 463 Mass. 808 (2012), in a plurality opinion, the SJC held that a prosecutor must instruct the grand jury on the law in any case where he or she seeks to indict a juvenile for murder, and where there is substantial evidence of mitigating circumstances or defenses other than lack of criminal responsibility. Specifically, the prosecutor has a duty to inform the grand jury of the elements of murder and the significance of mitigating circumstances or defenses for reducing or eliminating the juvenile’s criminal liability—using the model homicide instructions, modified for grand jury proceedings. In no other case had the SJC ever held that a prosecutor was required to instruct the grand jury on the law absent a request from the grand jury. See Commonwealth v. Noble, 429 Mass. 44, 48 (1999).

Unlike Leopold and Loeb, who set out to commit a thrill killing, Walczak had no intention of killing anyone when, embroiled in a fight with two other teenagers, he allegedly stabbed one of them to death. One night in August, 2010, Walczak, then sixteen years old, agreed to meet the victim and another youth on a street corner to sell them marijuana. The purported buyers had actually planned to rob Walczak of his drugs. When the three met, the victim and his friend told Walczak they were going to take his marijuana, and one poked him in the head. Punches were thrown and Walczak stabbed the victim several times in the neck and torso with a knife, killing him.

The Commonwealth sought and obtained an indictment for murder in the second degree. Walczak moved successfully to dismiss the indictment on grounds of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). The judge ruled that the Commonwealth had failed to disprove that Walczak acted on reasonable provocation or sudden combat—mitigating circumstances that negate malice and reduce a homicide from murder to voluntary manslaughter—and that, as a matter of law, the evidence supported at most an indictment for manslaughter.

On appeal by the Commonwealth, the SJC unanimously held that the judge erred: the evidence was sufficient to show probable cause for murder in the second degree; the Commonwealth bore no burden to disprove mitigation in the circumstances; and the grand jury was free to believe or disbelieve the evidence of mitigation. Nothing about those conclusions was particularly surprising. The excitement began when the justices considered an alternative ground for affirming the dismissal of the indictment: the Commonwealth’s failure to instruct the grand jury on the legal significance of the evidence of mitigation—i.e., that if someone kills another based on reasonable provocation or during sudden combat the offense would be manslaughter rather than murder. On the need for these instructions the justices differed markedly, but a plurality concluded that the Commonwealth should have given the instructions.

In dissent, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, argued that, regardless whether mitigating circumstances surround a homicide, the Commonwealth has no obligation to instruct on mitigation absent a request from the grand jury. But according to the plurality opinion, at least where there is “substantial” evidence of mitigation—evidence “so strong” that “concealing it would impair the integrity of the grand jury” because the evidence concealed probably would have influenced the grand jury’s decision about what charge, if any, to indict—the legal significance of that mitigating evidence must be explained. Presumably a reviewing court would examine the facts de novo to decide whether the evidence of mitigation was substantial enough to require the instructions, but Walczak is silent on this point.

Justice Gants, in his concurrence, joined by Justices Botsford and Duffly, thought the instructions should be given in all murder cases, juvenile and adult. For him, what made the instructions necessary were “due process” interests not limited to juveniles.

By contrast, Justice Lenk, who wrote her own concurrence, did not speak in terms of due process. Rather, she thought that what necessitated the instructions were “prudential” concerns arising from the special status of adolescents. For example, unlike an adult, a juvenile indicted for manslaughter rather than murder faces trial in Juvenile Court, which affords special protections for adolescents. That difference, and the generally reduced culpability of minors as compared to adults, were the reasons Justice Lenk thought the instructions were required in juvenile murder cases. But the instructions that Justice Lenk thought essential were those concerning such traditional mitigating circumstances as reasonable provocation and sudden combat; she did not say that a grand jury should also be instructed that a juvenile’s youth itself constitutes a mitigating circumstance. (She did think that, in addition to instructions on mitigating circumstances, the grand jury should be told that a juvenile indicted for murder would be tried in Superior Court, but she was alone in that view.) For purposes of resolving Walczak’s case, Justice Lenk, unlike Justice Gants, thought it unnecessary to go so far as to require mitigation instructions (on reasonable provocation and sudden combat) not only for juveniles but for adults too. As the narrower view—requiring the instructions only in juvenile cases—hers prevailed in the plurality opinion.

But this reader, at least, sees no reason why the instructions should not be given in both juvenile and adult cases, as Justice Gants suggested. Although Justice Lenk wanted to ensure that a grand jury would take into account a juvenile’s youth, mitigation and self-defense are not concepts unique to adolescents. Adults can act out of reasonable provocation, sudden combat, or self-defense just as much as adolescents can. Thus, regardless whether the subject of a murder charge is a juvenile or an adult, it would seem fair in either case for the grand jury to be instructed on mitigating circumstances and self-defense, where the evidence warrants it. But the plurality concluded that the instructions are needed only in juvenile cases.

Besides instructions on mitigation and self-defense, Justice Gants suggested that the grand jury “may even be instructed that the prosecution is entitled to an indictment of the crime charged if it is supported by probable cause based on the credible evidence.” Walczak, 463 Mass. at 841. In this way, he agreed with Justice Spina that the grand jury is not permitted simply to choose between murder and manslaughter if credible evidence of the greater offense has been presented. But, as Justice Gants explained, even if the evidence of malice is legally sufficient, the grand jury is still free to decide that the evidence of mitigation is more reliable and return an indictment for the lesser offense.

Questioning the wisdom of the plurality’s view, Justice Spina pointed out that the decision did not address how one may pursue judicial review of a grand jury’s “gatekeeper” decision (i.e., whether the juvenile will be tried in Superior or Juvenile Court) or the applicable standard of review. More fundamentally, Justice Spina saw the plurality’s position as an “improper judicial exercise of the legislative function.” He believed that where the Legislature, in the 1996 Youthful Offender Act, removed power from Juvenile Court judges to determine in which court a juvenile would be tried, it was not up to the SJC to give similar power to the grand jury. Any legislative response to Walczak remains to be seen.

A postscript to this story is worth telling. After the SJC affirmed the dismissal of Walczak’s murder indictment, the Commonwealth returned to the grand jury to present the case again. This time, with the benefit of instructions on the legal significance of the mitigating circumstances, the grand jury indicted Walczak for voluntary manslaughter. As a result, Walczak will be treated as the juvenile he was in August, 2010, when that botched robbery turned tragically into a fatal fight.

Alex G. Philipson is founder of the appellate boutique Philipson Legal, providing appellate representation and consulting services in civil and criminal matters. He was Senior Staff Counsel to the Supreme Judicial Court from 2003 to 2011.


Kids Speak and Lawyers Listen, Thanks to Boston Debate League Partnership with Boston Bar

By J.D. Smeallie, President, Boston Bar Association

President’s Page

Smeallie_J.DWhen Tarae Howell, then a public high school student in Newark, New Jersey, signed up for the Jersey Urban Debate League, becoming a lawyer was the furthest thing from his mind. Despite winning fourteen debate titles over a two-year span, he had no idea he would one day be a third-year litigation associate at Nixon Peabody, much less a debate judge for a very similar program for Boston high school students. This fall, Tarae judged two Saturday morning debate competitions for the Boston Debate League (BDL). Afterwards, students plied him with questions about what it’s like to be a lawyer and his path to success.

Earlier this year, the BDL approached the Boston Bar Association to see if we would partner with them by providing judges and mentors. We liked what we saw. Not only did such a partnership provide a wonderful opportunity for public service within the Boston Public Schools, but it held the promise of advancing diversity efforts at the BBA. Too few students of color are entering law school. As a result, too few lawyers of color enter the practice each year. By mixing BBA lawyers with students from Boston’s high schools with large minority student populations, we hoped that the interest in law exhibited by Tarae’s debaters would be sparked as well many times over in other students. Perhaps the germ of a legal career would be planted, and the pipeline of students of color could be expanded. The hope is that some of the students we encounter in the course of volunteering as debate judges or mentors will one day return as lawyers in our community.

The metrics suggest this could very well happen. According to the BDL, debaters are three times less likely to drop out of school than non-debaters, and African-American males who debate, in particular, are seventy percent more likely to graduate from high school than those who don’t. Debate assists students in gaining entrance to college but, more importantly, it gives them the necessary skills to succeed and thrive once they get there.

In this regard, the BDL reports that urban debaters improved both their Reading and English ACT scores by fifteen percent and are thirty-four percent more likely to achieve the English college readiness benchmark, and seventy-four percent more likely to achieve the Reading benchmark, after just two years in debate.

The BDL does not require its volunteers to be lawyers. Yet BBA members participating in the program firmly believe that in addition to being extremely worthwhile, this particular volunteer opportunity is a great fit for members of the legal profession. As Tarae puts it, “[a]s lawyers, we have to be zealous advocates for our clients. Therefore, as a judge and a lawyer, I’m able to determine whether a debater has been an effective advocate for her position. It helps me give the student better feedback.”

Stories such as Tarae’s make all of us feel good about helping Boston’s young people develop the reading, critical thinking and advocacy skills associated with debating. Vickie Henry, a Senior Staff Attorney at GLAD, who as a high school student won a state debate championship in her home state of Michigan, says: “[y]ou look right in the faces of the youth getting your feedback and you can see it’s making a difference.”

Bill Fitzpatrick, Associate General Counsel for Litigation at the MBTA, says that what he found appealing about this particular volunteer opportunity is that debating offers Boston youth an opportunity for competition involving academics. “Life is not all about whether you can hit the free throw or hit the ball out of the park,” he said. “Debating gives the students a great outlet for skills that will serve them better in the long run.”

More than a few volunteers have marveled at the support students who are native English speakers gave to students for whom English is a second language, especially during those portions of the debate tournament requiring that they read aloud. They also commented on how heartwarming it is to see students improve dramatically from one tournament to the next.

Both Jessica Bloch of Bloch & Roos and Stephanie Hoeplinger, a solo practitioner, serve as mentors, which means that they’ve committed to spending between sixty and ninety minutes in the classroom every week between October and March, helping teachers and BDL staff prep the students for the tournaments.

“Good for these students for going to this afterschool program and pushing through,” says Jessica. “This experience is challenging but very rewarding.”

Though not required to attend the debates, Stephanie was deeply moved to see the looks on two of her students’ faces when she stopped by on a Saturday morning to see them perform: “Their faces just lit up; they looked so happy that someone not paid to be there really cares. They look up to you as a lawyer.”

“We are just so thrilled to have so many members of the BBA come out, judge at our tournaments, and work with our kids,” Steve Stein, Executive Director of the Boston Debate League, told us. “It is great to have such wonderful role models be there for our students, many of whom are aspiring attorneys. Our students love that for ninety minutes, they speak and adults listen. When the debate is over, the adults talk for maybe five minutes to provide feedback. That kind of power dynamic doesn’t exist anywhere else in their lives. BBA members are participating in an activity that is changing the lives of youth throughout Boston.”

Recently, I had the opportunity to spend a morning at Boston’s Josiah Quincy Upper School. What struck me was how genuinely enthusiastic the co-headmasters were in the face of poor facilities, budget constraints and a talent drain to the exam schools. One of the bright spots they described was their students’ participation in the Boston Debate League, and the very impressive fact that each and every one of the debaters on the Josiah Quincy team have gone on to college.

The BBA’s partnership with the BDL is a public service opportunity that truly hits the trifecta for the BBA — meaningful service to the Boston community, where our lawyering skills provide a special benefit, and with the prospect of expanding the diversity pipeline. I hope more BBA members will consider volunteering for this incredibly rewarding experience.


Expanding Lawyer for Day at Housing Court: One Piece of Homelessness Puzzle

By James D. Smeallie

President’s Page

In March of this year, the Boston Bar Foundation (BBF) released a groundbreaking study assessing the practical impact of legal representation in eviction cases. The data indicated that without representation by counsel, many vulnerable tenants forfeit important rights, often lose possession of homes they could have retained, and sometimes forego substantial financial benefits. Conducted under the auspices of a Boston Bar Association (BBA) Task Force on Expanding Civil Right to Counsel, the study involved two different pilot projects, one in the Quincy District Court, and one in the Northeast Housing Court.

Meanwhile, a study conducted by the Task Force to Expand Access to Civil Legal Services in New York found that “the unmet need for civil legal assistance in New York State is profoundly impacting vulnerable New Yorkers and costing taxpayers millions of dollars by increasing homelessness, failing to prevent domestic violence, and increasing poverty.”

This is not a new problem. In 1999, the BBA’s Real Estate Section partnered with the Volunteer Lawyers Project of the Boston Bar Association (VLP), Greater Boston Legal Services (GBLS), the WilmerHale Legal Services Center, and the Boston Housing Court (BHC) to establish a Lawyer for the Day program. The goal was to prevent evictions resulting in homelessness. At the request of the BHC, the program has two different legal information tables, one for unrepresented tenants, and another for unrepresented landlords. The Herbert W. Vaughan Fund of the BBF helps support the operations of this program.

During the 13 year history of the Lawyer for the Day program at the BHC, 1,200 volunteers have donated their time to assist more than 14,732 individuals. In just the past year alone, 443 volunteers helped 991 tenants and 181 landlords.

About 95 per cent of tenants at the BHC are unrepresented. According to Chris Saccardi, a solo practitioner from Somerville and a frequent volunteer, tenants, the bulk of whom are low-income and frequently minorities, are usually opposed by a landlord represented by counsel. The issue before the court is typically whether the tenant can stay in his or her home. Were it not for the Lawyer for the Day program, the imbalance in power would be profound.

Chris reports that it is not uncommon to see families with young children, families with elderly parents sharing their home, as well as elderly people living alone — all of whom are facing eviction. But he also sees tenants who have slipped below middle class status because of job loss or illness.

For tenants living in subsidized housing or Boston Housing Authority developments, the stakes can be especially high. Take for example a grandmother raising grandchildren. Should one of those kids get in trouble, the entire family can face eviction. Should they be evicted “for cause,” the impact can be devastating — with the family being required to split up, move in with relatives, or live on the street. Collateral consequences may follow.

GBLS is well-known for having housing attorneys second to none. Yet the demand for their services by poor people overwhelms the supply.

The BHC, which hears anywhere between 200 and 225 evictions weekly, considers the Lawyer for the Day program a godsend. Thanks to Lawyer for the Day volunteers, some 80 per cent of the cases can be resolved successfully through mediation provided by BHC staff — without a judge having to get involved.

“The program has been successful beyond our wildest dreams,” says Robert Lewis, Chief Clerk Magistrate of the BMC.

A word about unrepresented landlords. . . they are frequently immigrants with limited English proficiency who depend on the rent to pay mortgages on owner occupied two or three family homes. Missed rental payments can put them at risk of foreclosure. Indeed, there are situations where landlord owners of small multi-family homes can be in a tighter financial situation than their tenants.

Often times this population of landlords need to be advised about what steps they must take to bring their property to the minimum state sanitary code, and assisted in determining the difference between a tenant complaint and what the law requires them to do.

This month, the Lawyer for the Day program will expand its services to low income landlords, starting with one Monday a month dedicated specifically to those cases. As Joanna Allison of the VLP points out, the mistakes that unrepresented landlords make on a procedural basis make it impossible for them to prevail in their cases — resulting in wasted filing fees for people who can least afford them and inefficiency for a busy court.

The Lawyer for the Day program is a model for legal services organizations to leverage the contributions of committed volunteers to preserve housing for a very vulnerable population and to conserve precious judicial resources. If we consider the fact that the cost of placing a family in a shelter is on average three times higher than the average government subsidy for families in Massachusetts, the program is also saving taxpayers money.

The program also illustrates the concept that lawyers can do well by doing good. Mary K.Y. Lee, a lawyer whose paid work involves both immigration and landlord/tenant matters, is another dedicated volunteer. She says that were it not for her volunteering for Lawyer for the Day at the BHA, she might not have gotten litigation experience so early in her career, and credits the program with helping her become “a better person and a better lawyer.”

We should all applaud all those involved for making the Lawyer for the Day program a continued success. That being said, we still confront the painful reality of overburdened courts and underrepresented litigants.

As the Task Force to Expand Access to Civil Legal Services in New York concluded, “private lawyers cannot fill the gap in services as the sheer numbers of needy and unrepresented litigants overwhelm the capacity of volunteer lawyers.” In response to that Task Force’s recommendations, the New York Legislature dramatically increased legal aid funding to provide for counsel in eviction and other cases involving basic human needs.

So while I say “keep up the good work” to all our volunteers, I look forward to the BBA expanding beyond its civil right to counsel study and pursuing new paths to assuring counsel to all those involved in cases involving basic human needs such as housing. Stay tuned.