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.
by Robert M. Buchanan, Jr.
The 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).
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.