The COVID-19 pandemic has halted jury trials in Massachusetts state courts since March 13, 2020. The inability to set a reliable trial date, in turn, has created a logjam of unresolved cases. Between 2017 and 2019, Massachusetts trial courts empaneled an average of 3883 juries each year. See Jury Management Advisory Committee, Report and Recommendations to the Justices of the Supreme Judicial Court on the Resumption of Jury Trials in the Context of the COVID-19 Pandemic, at App. 9, p. 107 (July 31, 2020). It is fair to project that roughly this number of cases will have been added to the courts’ backlog as a result of the moratorium on jury trials for most of 2020 and early 2021. Although there are anecdotal reports of some decline in new indictments and civil filings, the backlog is almost certain to continue to grow in the coming months.
On the civil side, this backlog means a longer wait for one’s day in court. On the criminal side, the prospect of continued delay is even more serious. With limitations on the availability of jury trials expected to extend well into 2021, requests to dismiss on speedy trial grounds will become more commonplace. This article examines both the constitutional basis for such requests and the implications of the pandemic for Rule 36 motions to dismiss. The article also attempts to shed light on how lawyers and judges should approach the analysis of these issues – particularly the constitutional limitations on delay imposed by a public health emergency.
The Constitutional Analysis
Criminal defendants have rights to a speedy trial under both the United States and Massachusetts Constitutions. See Barker v. Wingo, 407 U.S. 514 (1972); Commonwealth v. Dirico, 480 Mass. 491 (2018). Under the federal Constitution, the Sixth and Fourteenth Amendments guarantee the right to a speedy trial. See Barker, 407 U.S. at 515. In Massachusetts, Article 11 similarly and independently protects that same right as a matter of state constitutional law. See Dirico, 480 Mass. at 505, citing Commonwealth v. Butler, 464 Mass. 706, 709 n.5 (2013); Commonwealth v. Gilbert, 366 Mass. 18, 22 (1974). In applying Article 11, Massachusetts courts look to federal precedent interpreting the Sixth Amendment “because the analysis is analogous.” Dirico, 480 Mass. at 505.
Under both the federal and Massachusetts Constitutions, a defendant seeking dismissal for violation of the speedy trial right must show initially “that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial delay.” Dirico, 480 Mass. at 505. This burden, however, “is relatively modest.” Dirico, 480 Mass. at 506. Massachusetts “courts have generally found post accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Dirico, 480 Mass. at 506, quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).
Upon a finding of presumptively prejudicial delay, both federal and Massachusetts courts then apply Barker’s familiar four-part test. This requires the court to consider: “the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant.” Dirico, 480 Mass. at 506, citing Barker, 407 U.S. at 530. Although courts will look to the four-part Barker analysis to resolve speedy trial claims, its application to the extraordinary situation of a global public health emergency raises novel issues.
In calculating the length of the delay, the first Barker factor, courts begin with the date the complaint was first lodged against the defendant. The pandemic is almost certain to add well over a year to the wait for trial for those defendants arrested before its onset. For those arrested during the pandemic, it will add delay of as much as a year or even more.
The second Barker factor, which looks to the reason for the delay, involves an analysis of the government’s role in creating it. See Dirico, 480 Mass. at 506. Generally, the greater the fault attributed to the government, the more heavily that factor weighs in favor of dismissal. See Dirico, 480 Mass. at 406, citing Butler, 464 Mass. at 716; Doggett, 505 U.S. at 657. The most common application of the second Barker factor is to cases in which the prosecution is responsible for the delay, which is not the case here. Massachusetts courts have not yet had occasion to apply the Barker analysis to emergency situations. However, two federal courts that have analyzed delays due to public emergencies have held that delays of three and seven weeks resulting from a volcanic eruption and the September 11, 2001 attacks in New York, respectively, were excluded from the calculation of elapsed time under the federal Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Each of these cases was limited to an application of the Speedy Trial Act, so neither involved application of the Barker analysis. Moreover, each involved a relatively modest delay caused by a localized emergency. The delay attributable to the COVID-19 pandemic, by contrast, will be much longer than the delay in either of these cases and will be experienced throughout the Commonwealth and, to varying degrees, across the country.
In the current situation, in which jury trials have been prohibited in the Commonwealth by order of the Supreme Judicial Court since March 16, 2020, the prosecution is not responsible for delay. Through various orders, the SJC has suspended jury trials because of the health risks they pose to participants. The unavailability of jury trials is thus at least arguably the result of government action. See State v. Labrecque, ___ A.3d___, 2020 WL 5268718 (Vt. Sep. 3, 2020) (delay caused by COVID-19 pandemic attributed to government moratorium on jury trials, despite lack of prosecutorial responsibility). The SJC’s decisions to suspend jury trials may ultimately be deemed to have been entirely reasonable under the circumstances. Defendants, however, will no doubt point to states like Arizona, Georgia, Hawaii, Indiana, Kansas, Louisiana, Maine, Mississippi, North Dakota, Oregon, Utah, Vermont, Washington, West Virginia, and Wisconsin, where court systems have authorized and undertaken the resumption of jury trials under certain circumstances. See https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-during-covid-19-50-state-resources/.
Although it is not known to the authors how many jury trials have been conducted in any of these states, how safely they have been carried out, or how each state is measuring safety, defendants in Massachusetts can be expected to argue that the Commonwealth’s more conservative approach is a form of state action that unreasonably deprived them of their due process rights. At least one federal district court has relied on a version of this argument in a habeas corpus petition to order that the state court set a prompt trial date or face dismissal. See Kurtenbach v. Howell, 2020 WL 7695578 (D.S.D. Dec. 28, 2020). In that case, the Court (Kornmann, J.) remarked that “[t]here is no pandemic exception to the Constitution.” Kurtenbach, 2020 WL 7695578 at *5, quoting Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020). It seems reasonable to forecast that the Supreme Judicial Court will rule that its orders suspending jury trials were necessary in light of the public health emergency, but this is by no means certain. Perhaps equally uncertain is the resolution of this question by federal courts, which may ultimately be asked to review the SJC’s actions.
The third Barker factor is the defendant’s assertion of his speedy trial right. Although this necessarily entails a fact-specific inquiry, defendants can be expected to argue – not without basis – that an assertion of the speedy trial right in a period when jury trials are suspended is the quintessential exercise in futility. That the Supreme Judicial Court might accept such an argument, however, says little about how it will resolve the issue. Just as a criminal defendant should perhaps not be expected to assert a right futilely, the prosecution cannot be faulted for not proceeding with a trial that by order of the SJC cannot be conducted. This balance of blamelessness merely underscores the novelty of applying the Barker analysis in a time of unprecedented suspension of jury trials.
In evaluating the fourth Barker factor – the extent to which a defendant has been prejudiced by the delay – courts must consider the interests protected by the speedy trial right. See Dirico, 480 Mass. at 507, quoting Barker, 407 U.S. at 532. These are to minimize “oppressive pretrial detention,” the anxiety of the accused, and prejudice to the defense. Dirico, 480 Mass. at 507. The defendant bears the burden of establishing prejudice. Dirico, 480 Mass. at 505. The question of prejudice is likely to be the one on which most speedy trial motions brought to address pandemic-related delay will turn. That is because the length of delay alone rarely leads to dismissal. See infra. This is particularly so when the delay is caused by a global public health emergency. That said, and as always, if a defendant can show that the delay has compromised the defense’s ability to contest the Commonwealth’s evidence, the fourth Barker factor could well justify dismissal.
A defendant who has been unable to post bail, or has been held without bail based on a finding of dangerousness under G. L. c. 276, § 58A, certainly has a basis to argue that prejudice has resulted from the delay of the trial. The argument would be especially powerful under Dirico’s “oppressive pretrial detention” prong if the prosecution’s case has weakened over time, or if the length of pretrial detention approaches the length of the sentence that the defendant likely would receive if convicted.
In dicta in its June 20, 2020, decision in Commonwealth v. Lougee, 485 Mass. 70, 84 (2020), the Supreme Judicial Court acknowledged the looming due process issue presented by suspending jury trials. The Lougee Court observed that the delay caused by the pandemic and the Court’s orders responding to it had “yet to approach the length of delay that would trigger a due process analysis.” Left unanswered, however, is how long a delay would amount to a due process violation. Unsurprisingly, there is no case law that analyzes the issue in the context of a protracted public health emergency. And the reported cases analyzing the requirements of procedural and substantive due process provide the courts with only the most general guidance.
Substantive due process forbids the government from acting in ways that “shock the conscience” or interfere with rights “implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987). The standard of review applied by a reviewing court under substantive due process analysis varies depending on the nature of the right at stake. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993), citing Salerno, 481 U.S. at 748-51. With respect to “fundamental” rights – and surely that would include the right to a speedy trial – courts “must examine carefully the importance of the governmental interests advanced and the extent to which they are served” by the challenged governmental order or regulation. Id. Courts typically will uphold those orders or statutes that are “narrowly tailored to further a legitimate and compelling governmental interest.’” Id.
Thus, courts are likely to analyze a state moratorium on jury trials as a speedy trial issue, the outer limits of which are set by substantive due process doctrine. That is, the United States and Massachusetts constitutions surely will not tolerate a Barker analysis producing a result that “shocks the conscience.” It is conceivable, therefore, that a pandemic could last long enough – years, for example – that the delay itself could constitute prejudice, even if individual defendants could not establish prejudice under the more conventional analysis of Barker’s fourth prong.
Stating this proposition, of course, does not answer the central question of how long a pandemic-necessitated delay the United States and Massachusetts constitutions will tolerate. The analysis merely frames the question. There are not yet any reported Massachusetts trial court decisions addressing the application of either the Barker or general due process analysis to trial delays caused by the pandemic. At the time of publication, several federal district courts had been presented with speedy trial challenges based, at least in part, on delay caused by the COVID-19 pandemic. See, e.g., United States v. Tapp, 2020 WL 6483141 (E.D. LA November 4, 2020); United States v. Woolard, 2020 WL 6469952 (W.D. WA November 3, 2020); United States v. Zhukov, 2020 WL 6302298 (E.D.N.Y. October 27, 2020). None, however, has dismissed a case on speedy trial grounds related to the pandemic. Cf. United States v. Smith, 460 F. Supp. 3d 981, 984 (E.D. Cal. 2020) (“Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time has arrived at the same answer: yes.”). But cf. United States v. McCullough, 2020 WL 6689353 (W.D. Tenn. November 12, 2020) (travel restrictions imposed by pandemic do not justify prosecution’s request for delay). Because there is no closely analogous case law, courts will be inclined to turn to conventional speedy trial precedent, which, unfortunately, provides only loose analogies to the current public health emergency.
A review of Massachusetts speedy trial cases reveal none in which the length of the delay alone – without prosecutorial fault – has resulted in dismissal. Thus, in Commonwealth v. Butler, 464 Mass. 706 (2013), for example, the Supreme Judicial Court held that a delay of twelve years between the issuance of a district court complaint in 1991 and the defendant’s eventual trial on a rape charge in 2003 did not require dismissal, even though the Commonwealth’s negligence factored into the delay. Similarly, in Commonwealth v. Wallace, 472 Mass. 56 (2015), the SJC considered a delay of nine years between charge and trial in the case of two co-defendants. The Court concluded that the delay did not warrant dismissal in the case of the co-defendant who had fled to avoid prosecution, but did warrant dismissal of the case against the co-defendant who was held in federal custody for seven years before prosecutors moved to rendite him for trial. These decisions suggest that, because two of the Barker factors – the cause(s) of the delay and the defendant’s assertion of his speedy trial rights – focus on the conduct of the parties, the mere fact of even protracted delay, without more, is unlikely to trigger dismissal.
Even if extended delay does not result in a due process violation and resulting dismissal, however, it has and will continue to affect the bail status of defendants held awaiting trial. On the one hand, the Supreme Judicial Court has made clear that the court must take into account the risks posed by COVID-19 if the bail determination could result in the defendant’s detention. See CPCS v. Trial Court, 484 Mass. 431, 435 (2020) (COVID risk constitutes changed circumstance for purposes of bail review); Christie v. Commonwealth, 484 Mass. 397, 401 (2020) (error for trial judge not to reconsider motion for stay of sentence in light of pandemic). Cf. Commonwealth v. Nash, 486 Mass. 394, 406 (2020) (“Our objective in Christie was to reduce temporarily the prison and jail populations, in a safe and responsible manner, through the judicious use of stays of execution of sentences pending appeal.”). On the other hand, the SJC has actually extended the period during which a defendant can be held without bail based on dangerousness. Although G.L. c 276, § 58A provides that a defendant cannot be detained without bail for longer than 180 days, the SJC has held that the delay caused by the moratorium on jury trials is excluded from the calculation of that time period. See Lougee, 485 Mass. at 84-85. What is clear, however, is that recent SJC precedent establishes that a court’s bail decision during the COVID-19 pandemic should be made with special care, particularly given the heightened risk of contagion in the correctional context and the likelihood that trial for that defendant will be an unusually long way off.
The Rule 36 Analysis
Primarily a rule of case management, Mass. R. Crim. P. 36 overlaps with but is “wholly separate” from constitutional speedy trial analysis. Dirico, 480 Mass. at 504, quoting Commonwealth v. Lauria, 411 Mass. 63, 67 (1991). Rule 36 dictates dismissal as a matter of presumption if the defendant is not tried within one year of arraignment. Dirico, 480 Mass at.497. The rule, however, excludes delay that results from a number of specified occurrences. See Mass. R. Crim. P. 36(b)(2)(A)-(H). The Commonwealth bears the burden of establishing that the delay in question is excluded from the Rule 36 calculation. Dirico, 480 Mass. at 497, citing Commonwealth v. Spaulding, 411 Mass. 503, 504 (1991). Among the express exclusions in Rule 36 are periods of time about which the court finds that “the ends of justice served by granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.” Mass. R. Crim. P. 36(b)(2)(F).
The Supreme Judicial Court has also discerned in Mass. R. Crim. P. 36 a common-law basis for exclusion. Even if delay is not expressly excluded by the provisions of Rule 36(b)(2), it still may be excluded from the Rule 36 calculation if the defendant “acquiesced in, was responsible for, or benefitted from the delay . . . .” Dirico, 480 Mass. at 498-499. This basis for exclusion is rooted in a defendant’s “obligation . . . to ‘press their case through the criminal justice system.’” Commonwealth v. Graham, 480 Mass. 516, 524 (2018), quoting Lauria, 411 Mass. at 68. The precise limitations of this doctrine remain both fact-specific and surprisingly complex.
That said, certain principles have emerged from recent cases. First – wholly apart from the express exclusions in Rule 36(b)(2)(F) – if “a defendant agrees for the first time to schedule a previously unscheduled event, there is no ‘continuance’ or ‘delay’ that can be excluded under rule 36.” Graham, 480 Mass. at 533. Second, “unanticipated events that the parties . . . agree to work around” are excluded from the Rule 36 computation. Graham, 480 Mass. at 533.
In its March 13, 2020 order, the Supreme Judicial Court propounded a statewide finding under Rule 36(b)(2)(F) that the indefinite postponement of jury trials “serve[s] the ends of justice and outweigh[s] the best interests of the public and the criminal defendant in a speedy trial . . . .” See Lougee, 485 Mass. at 72 (SJC’s statewide order constitutes finding under Rule 36(b)(2)(F)). This appears to be the first time that the SJC has made a finding – under either Rule 36 or constitutional principles – applicable to all criminal cases pending in the Commonwealth. That it was the SJC that entered the finding in the context of a global pandemic, however, makes it unlikely that a subsequent SJC would invalidate it, at least as an interpretation of Rule 36. In this context – unlike that of the speedy trial analysis – federal courts are not likely to be called upon to review the SJC’s interpretation of a Massachusetts rule of criminal procedure.
A more prolonged suspension of the jury-trial right in the Commonwealth will eventually trigger a due process analysis. That would require courts to determine at what point continued delay of an individual jury trial either prejudices the defendant – under the Barker analysis – or “shocks the conscience,” as prohibited by substantive due process. The COVID-19 pandemic is a nearly unprecedented public health emergency, and one about which no one alive today can draw on experience. The constitutional speedy trial analysis is familiar and predictable; its application to the extraordinary situation that currently prevails is anything but.
David A. Deakin is an associate justice of the Massachusetts Superior Court. Before taking the bench in 2019, Judge Deakin was deputy chief and acting chief of the Criminal Bureau in the Massachusetts Attorney General’s Office.
Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she worked as a criminal defense lawyer and then served on the district court beginning in 1995.
Practice Tips for Navigating the Disciplinary Investigation Process Before the Office of Bar CounselPosted: April 7, 2021
by Heather LaVigne
Massachusetts attorneys may find themselves involved in disciplinary investigations conducted by the Office of Bar Counsel, and disciplinary proceedings before the Board of Bar Overseers (“BBO”), either as the subject of the proceedings, or as counsel to a lawyer facing misconduct allegations. This article provides an overview and practice tips for navigating disciplinary investigation by bar counsel. It is not a substitute for reading the Rules of the Board of Bar Overseers and Supreme Judicial Court Rules 4:01 and 2:23 governing bar discipline procedures. Additionally, practitioners should consult the BBO’s website, which contains the BBO’s policies and guidance relating to bar discipline; the Board’s treatise, “Massachusetts Bar Discipline, History, Practice, and Procedure”; and information and orders relating to bar discipline practice in light of the COVID-19 pandemic.
The Board of Bar Overseers and Office of Bar Counsel
The BBO has a volunteer board and a full-time staff. It is charged with administering the bar disciplinary system and the attorney registration system. The BBO appoints hearing officers to conduct disciplinary proceedings and to make recommendations on discipline to the BBO. The BBO’s Office of General Counsel advises and assists the BBO and hearing officers throughout the process.
The Office of Bar Counsel is charged with investigating allegations of attorney misconduct and, if warranted, prosecuting disciplinary charges before the BBO. Within bar counsel’s office, the Attorney Consumer Assistance Program (“ACAP”) serves as the office’s intake unit. In carrying out its duties, ACAP may be able to resolve minor issues or may refer the complaint to be opened for formal investigation.
Representation by Counsel in Bar Discipline Proceedings
While there is no right to counsel in bar discipline proceedings, it is recommended that attorneys facing allegations of misconduct exercise their ability to choose to be represented by counsel. Attorneys who are under investigation are referred to as “respondents” and their counsel as “respondent’s counsel.” For attorneys who cannot afford counsel, the BBO’s General Counsel can assist in locating pro bono representation. Counsel must be licensed to practice law in Massachusetts to appear in a bar discipline proceeding. In some situations, a lawyer licensed in another jurisdiction may request permission to appear.
Investigation by the Office of Bar Counsel
The Complaint and Response
It is important that attorneys are responsive, cooperative, and forthcoming at all stages of bar counsel’s investigation. The disciplinary process begins when bar counsel first receives information about alleged attorney misconduct. Typically, information about alleged misconduct comes from:
- A client, opposing party, or lawyer who contacts the office by phone or in writing;
- Banks who report dishonored checks drawn on IOLTA accounts;
- The BBO registration department, which reports attorneys who pay registration fees from an IOLTA account;
- Courts and tribunals in any jurisdiction who may report concerns about attorneys appearing before them in professional and personal capacities; and
- Other disciplinary authorities.
Bar counsel may also open an investigation based on information from any source, which may include newspapers, court decisions, and internet postings that come to bar counsel’s attention.
Many concerns about attorney conduct, such as a failure to return a phone call or a delay in providing the client their file, can be resolved by ACAP without opening a formal investigation. It is important that attorneys who receive calls from ACAP staff respond to those calls, as this may resolve the issue to the client’s satisfaction and avoid the need to open a formal investigation. For serious allegations, the matter is assigned to an assistant bar counsel to begin a formal investigation. The purpose of the investigation is to gather facts to determine whether the allegations are supported and, if so, whether formal disciplinary charges are warranted.
The assistant bar counsel informs the respondent of the complaint, in writing, at the primary address listed on the respondent’s annual registration statement. As a result of remote work protocols due to the COVID-19 pandemic, this notice may be sent to the respondent’s registered email address. It is, therefore, important that attorneys keep their email and mailing addresses up to date with the BBO registration department and check those mailboxes regularly. If there is a written complaint or some other writing (such as a dishonored check notice), that writing is typically provided to the respondent at this time. If the complaint is brought by an individual, that person is typically referred to as the “complainant.”
Respondents may decide to hire an attorney to prepare the response. While there is no formal process for entering an appearance, respondents’ attorneys should alert bar counsel that they represent the respondent in the matter. An email to the assistant bar counsel handling the case suffices.
The respondent must respond to the complaint in writing, within 20 days.
Key Tip: It is imperative that the response be provided in a timely manner, as failure to respond itself constitutes misconduct that may result in the issuance of a subpoena or the administrative suspension of a respondent’s license to practice law. Contact the assistant bar counsel promptly if an extension is required. Except in exigent circumstances, the first request for a reasonable extension typically will be granted.
In the letter to the respondent, bar counsel will ask the respondent to address the allegations in the attached complaint and may also ask the respondent to address specific issues and provide certain documents such as a fee agreement, IOLTA records, billing statements, or an entire client file.
The response should provide a narrative explanation of the respondent’s version of events. It must not simply admit or deny allegations. Further, the respondent should not make inflammatory statements about the complainant in the response. The focus of the response should be to explain the matter to bar counsel, and to correct any inaccuracies that the respondent believes exist in the complaint.
While the respondent should provide whatever information he or she thinks will aid bar counsel in understanding the matter, the respondent should pay attention to the specific requests made by bar counsel as these will often indicate the main areas of concern.
Key Tip: Respondents must provide the documentation bar counsel specifically requests. Respondents should also provide any additional documentation that supports their version of events. If the respondent is unclear as to what documentation bar counsel requests, respondent (or respondent’s counsel if represented) should contact the assistant bar counsel for clarification. Similarly, if the respondent does not have or is working on obtaining a document, the respondent should indicate that in the response.
The respondent should organize the response and supporting documentation with exhibit designations or Bates numbers and refer to those designations in the narrative response.
In the response, the respondent may suggest a certain outcome, such as closing the file. In cases of more serious misconduct, the respondent’s counsel may advise the respondent that the investigation is likely to result in a finding of misconduct and suggest a resolution in the answer.
The answer typically will be provided to the complainant, in full, for comment. Therefore, if the respondent provides documents that he or she believes should be withheld from the complainant, the respondent must specifically and clearly make such a request. At least initially, bar counsel usually will agree to withhold documents such as personal medical information or bank statements but will not often agree to withhold an entire response. The complainant’s comments typically are not provided to the respondent unless the assistant bar counsel believes they warrant an additional response.
Bar Counsel’s Additional Investigatory Options
Bar counsel may also obtain information from other sources. These sources include, but are not limited to, publicly available court filings, information obtainable by a Freedom of Information Act or Public Records Law request, interviews of potential witnesses, and information from banks and other entities, pursuant to a subpoena approved by a reviewing member of the Board. A respondent should not, however, decline to produce a requested document on the grounds that bar counsel can locate it elsewhere. During the investigation, the respondent is not entitled to copies of the documents and information bar counsel obtains. At this stage, the respondent has no right to issue discovery or request the issuance of subpoenas but will be permitted discovery if formal charges are brought.
As part of the investigation, bar counsel may also decide to take the respondent’s statement under oath. A statement under oath is similar to a deposition. The respondent will be sworn in and the assistant bar counsel will likely show the respondent exhibits and ask questions about them. The statement will be recorded, and if warranted, may later be transcribed and sent to the respondent. The respondent may choose to be represented by counsel at a statement under oath. The statement under oath may be scheduled with the participation of the respondent or by subpoena in the case of non-cooperating respondents.
Key Tip: If a subpoena to appear has not already been issued, the failure to appear can result in a subpoena requiring the respondent to appear on a new date. Especially in circumstances where a subpoena to appear has already been issued, a respondent’s failure to appear is likely to result in the immediate administrative suspension of the respondent’s license to practice law without hearing. Failure to be truthful during a statement under oath may be grounds for additional discipline beyond what is warranted for the underlying misconduct. Additionally, if there is a hearing in the matter, the respondent’s statement under oath may be used as substantive evidence and to impeach the credibility of the respondent’s hearing testimony.
Depending on the circumstances, the assistant bar counsel may be able to discuss possible resolutions to the investigation with the respondent or respondent’s counsel after this meeting.
Resolutions Without Public Discipline
Once bar counsel has completed the investigation, there are several possible resolutions short of disciplinary charges. Bar counsel may determine that the file should be closed with no disciplinary action. In some cases, bar counsel may close a case with a warning concerning conduct that may not warrant disciplinary charges. This is also considered closed without disciplinary action. For minor misconduct that can be remediated through education or counseling, bar counsel may offer to enter into a diversion agreement with the respondent. Pursuant to the diversion agreement, the respondent will pledge to engage in certain remedial efforts which may include mental health counseling, anger management counseling, career/practice assistance, trust account training, continuing legal education, and ethics courses. Bar counsel provides the diversion agreement to a reviewing Board member for approval. If approved, the respondent must complete the terms of the diversion agreement or be subject to discipline.
Key Tip: Even before the resolution stage, respondents’ counsel may serve their clients well by suggesting they contact Lawyers Concerned for Lawyers and the Law Office Management Assistance Project when the situation so warrants.
Bar counsel may also propose to resolve the file by admonition, which is considered private discipline. An admonition may be appropriate when the misconduct did not cause harm. An admonition must be approved by a reviewing Board member. If approved, the complainant is informed that the respondent has been admonished, but it is otherwise confidential. If bar counsel believes an admonition is warranted, but the respondent does not agree, bar counsel will present the admonition to the reviewing Board member. If approved, the respondent will be notified that he or she has 14 days to request a hearing on the admonition. The hearing is held on an expedited basis before a special hearing officer and remains confidential.
Agreements to Public Discipline
For more serious misconduct, bar counsel may offer to stipulate to public discipline in the form of a public reprimand, a suspension, or a disbarment. If the respondent agrees, the stipulation must be presented to the BBO for approval. Included with the stipulation are bar counsel’s petition for discipline explaining the charges, the respondent’s answer, and a stipulation to the facts and rule violations.
Stipulations prior to the filing of a petition for discipline is often preferable to many respondents because it provides the respondent with some input as to what becomes part of the public disciplinary record. For example, bar counsel may agree to omit some disputed issues from a petition for discipline filed with a stipulation that would otherwise appear in a petition for discipline filed in a contested disciplinary proceeding. A respondent, however, should not expect bar counsel to agree to a sanction that is less severe than the typical sanction for the misconduct in the stipulation.
Key tip: If a respondent has evidence of mitigating circumstances that he or she believes warrant consideration, the respondent should provide that evidence to bar counsel as early as possible, and certainly by the time settlement discussions begin.
Once a stipulation is submitted to the BBO, the BBO can accept or reject the stipulation. If the BBO rejects the stipulation, it will notify the parties and provide 14 days to submit briefs in support of the stipulation. In case the BBO does not accept the stipulation, respondent’s counsel should consider whether to reserve the right to dispute the facts and rule violations at a future hearing or whether the respondent and bar counsel will be bound to the facts and rule violations in the stipulation. Such language must be in the stipulation documents presented to the BBO.
Additionally, a respondent under investigation cannot simply resign in order to avoid the disciplinary process. A respondent may decide, however, to waive hearing and agree to a resignation as a disciplinary sanction for misconduct warranting a suspension or a resignation and disbarment for misconduct warranting disbarment. Further, a respondent who can no longer practice due to a physical or mental impairment may consider discussing disability inactive status with bar counsel.
If the parties cannot come to an agreement on discipline, and bar counsel has determined that public discipline is warranted, bar counsel will initiate public disciplinary proceedings. Public proceedings before the BBO will be the subject of a forthcoming Practice Tips article.
Throughout any disciplinary investigation, respondents would do well to remember that the mission of the Office of Bar Counsel is to protect the public from unethical conduct by attorneys and to preserve and enhance the integrity and high standards of the bar. As a result, cooperation in the investigative process is key, and failing to respond appropriately to bar counsel’s requests, and/or to participate in each stage of the investigative process, can only result in additional adverse action. Respondents should also review their malpractice insurance policies, as many provide at least some coverage for representation in disciplinary proceeds. Respondents’ counsel provide a valuable service to respondents by helping them navigate the process, and in negotiating a resolution with bar counsel.
Heather L. LaVigne is an Assistant Bar Counsel with the Office of Bar Counsel of the Massachusetts Board of Bar Overseers. She previously worked as an administrative hearing officer with the Department of Public Utilities and as a litigation associate at Choate, Hall & Stewart, LLP. She is a 2006 graduate of Boston College Law School and a 2003 graduate of Clark University.
On March 17, 2020, the Massachusetts Supreme Judicial Court (the SJC) issued the first of several orders tolling civil statutes of limitations and other statutory deadlines due to the COVID-19 pandemic. While the SJC’s tolling orders laudably intended to essentially freeze the rights of all parties during the pandemic, the orders will challenge civil practitioners for years to come. One year later, few Massachusetts courts have yet substantively addressed the myriad issues arising from the SJC’s tolling orders. This article presents a non-exhaustive illustration of some of the issues that are likely to arise and, based on a review of judicial interpretations of tolling orders in Massachusetts and beyond, explores how courts may interpret the Massachusetts tolling orders when issues do arise.
Due to COVID-19, the SJC tolled all Massachusetts civil statutes of limitations effective March 18, 2020. See March 17, 2020 Order (“First Tolling Order”). The SJC further ordered “all [other] deadlines set forth in statutes” tolled effective March 17, 2020 “[u]nless otherwise ordered by the applicable court.” Id. Citing “public health concerns regarding the COVID-19 (coronavirus) pandemic,” the SJC issued this tolling order “pursuant to its superintendence authority,” an apparent reference to Mass. Gen. Laws c. 211, § 3 (statute reflecting the SJC’s “general superintendence” authority over all inferior courts). Thereafter, the SJC issued three subsequent orders further tolling civil statutes of limitations and other statutory deadlines between March 17, 2020 and June 30, 2020, when the tolling period ended. See Orders dated April 1, 2020 (“Second Tolling Order”); May 4, 2020 (“Third Tolling Order”); and July 1, 2020 (“Fourth Tolling Order”) (collectively, the “Tolling Orders”). In total, the SJC tolled limitations periods and other statutory deadlines for 106 days in 2020.
Challenges for Practitioners
The Tolling Orders necessitate careful calculation of limitations periods and other statutory deadlines in disputes governed by Massachusetts law. Practitioners and parties must now generally add to an applicable limitations period another 106 days due to the Tolling Orders, an issue which alone is likely to result in problems and disputes concerning whether claims are time-barred. Causes of action which accrued between March 17, 2020 and June 30, 2020 (and thus may be subject to tolling, but for a period less than 106 days) will necessitate particularly careful review. An incorrect calculation may extinguish the rights of parties. An Ohio federal court, for example, has held that the failure to correctly calculate extended deadlines due to COVID-19 tolling orders did not constitute “excusable neglect” because attorneys are “presumed to know the… local rules and requirements of practice… especially when filing deadlines are involved.” In re Somogye, 2020 WL 4810805, *14-15 (N.D. Ohio July 28, 2020). Massachusetts courts would likely reach a similar result. See Goldstein v. Barron, 382 Mass. 181, 186 (1980) (“A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended to cover any kind of garden-variety oversight” including “[t]he misapprehension of … counsel resulting in a delayed filing”)(internal quotations omitted). Accord Pasquale v. Finch, 418 F.2d 627, 629-630 (1st Cir. 1969) (excusable neglect does not “cover any kind of garden-variety oversight.”).
Where the statutes of limitation are longer—for example, claims involving consumer protection under Chapter 93A (4 years), contracts (generally 6 years), or obsolete mortgages (35 years in some cases)—the Tolling Orders will have a long-lasting effect, even where no other tolling (e.g., contractual or equitable) applies. And, suits brought in foreign courts but governed by Massachusetts law—e.g., contract disputes with Massachusetts choice-of-law provisions—may cause difficulty for tribunals lacking familiarity with the Tolling Orders. Plaintiffs may shop for a Massachusetts forum to revive otherwise time-barred claims whereas defendants may seek to transfer claims brought in Massachusetts to other jurisdictions or challenge a Massachusetts choice of law to avoid the application of the Tolling Orders and possibly to bar claims altogether.
Federal courts may apply the Tolling Orders to Massachusetts, but not federal, claims. Federal and state claims predicated on the same alleged wrongful conduct (e.g., Title VII and M.G.L. c. 151B) may have different statutes of limitations due to the Tolling Orders. See Willard v. Indus. Air, Inc., 2021 WL 309116, *3 (M.D.N.C. Jan. 29, 2021) (limitations period to file Title VII claim governed by federal law and not extended by state tolling order). And, it is unclear whether a federal court will adopt the Tolling Orders where Congress failed to set a statute of limitations (e.g., § 1983 claims). See Loc. 802, Associated Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998) (“Because Congress did not provide a statute of limitations for suits brought under [Section] 301 [of the Labor Management Relations Act], this Court determines the statute of limitations for the federal cause of action by looking to the most appropriate state statute of limitations.”).
The Tolling Orders will also likely result in prolonged exposure for defendants. Although the statute of limitation under the FLSA is either two or three years for willful conduct (with each pay period a separate violation) (29 U.S.C. § 255(a)) and three years under the Massachusetts Wage Act (M.G.L. c. 149, § 150), the Tolling Orders may cause up to 106 days of increased liability for improper payment of wages during the COVID-19 pandemic. Because wage claims are often class actions, the potential liability may be significant, and the deadline for class members to opt-in may also be equitably tolled due to COVID-19. See Baxter v. Burns & McDonnell Eng’g Co., 2020 WL 4286828, *3 (D. Md. July 27, 2020) (although not considering any tolling order, equitably tolling deadline to opt-into class action based on COVID-19).
It is unclear whether the Tolling Orders extend statutes of limitation contractually shortened by the parties, Zamma Canada Ltd. v. Zamma Corp., 2020 WL 7083940, *7 (E.D. Va. Dec. 3, 2020) (although parties contracted for shortened statute of limitations, COVID-19 tolling orders extended limitations period), or non-statutory deadlines. Compare Cantu v. Trevino, 2020 WL 6073267, *5 (Tex. Ct. App. Sept. 24, 2020) (COVID-19 tolling orders did not extend non-statutory deadlines such as time to perfect appeal in civil case) with Haddad v. Tri-County A/C & Heating, 2020 WL 7753988, *3 (Tex. Ct. App. Dec. 30, 2020) (COVID-19 tolling orders likely automatically extended deadline to perfect appeal).
Problematically, the SJC’s orders tolling “all deadlines set forth in statutes” will likely not toll all statutory deadlines. For example, Massachusetts statutes of repose impose an absolute time bar and may not be tolled for any reason. See Stearns v. Metro. Life Ins. Co., 481 Mass. 529, 533 (2019). Statutes of repose exist in a variety of contexts, including construction, professional liability, and product liability matters. The Tolling Orders likely do not extend repose periods. Indeed, in a decision issued after the Tolling Orders, the SJC reaffirmed that statutes of repose are not subject to any tolling and did not reference the Tolling Orders. See D’Allessandro v. Lennar Hingham Holdings, LLC, 486 Mass. 150, 157 (Nov. 3, 2020) (each phase of a condominium project constitutes a separate “improvement” under M.G.L. c. 260, § 2B).
Enterprising (and well-funded) counsel may also attempt to directly challenge the Tolling Orders, particularly where high-exposure claims like class actions may be otherwise time-barred. For example, to the extent that the Tolling Orders arise from the SJC’s superintendence authority as codified in M.G.L. c. 211, § 3, that statute expressly precludes the SJC from acting to “supersede any general or special law” except in a “case or controversy” before it—a circumstance not present when the SJC issued the Tolling Orders. Arguably, an effort by the SJC to override legislation setting applicable limitations or repose periods outside of an actual case or controversy may be susceptible to separation of powers or other challenges. See, e.g., Committee for Public Counsel Servs. v. Chief Justice of Trial Court, 484 Mass. 431, 450 (2020) (limiting SJC’s superintendence power under c. 211, § 3, holding parole board retains discretion to revise custodial sentences notwithstanding COVID-19 Tolling Orders). Ultimately, the authority to issue the Tolling Orders may derive solely from the SJC’s constitutional or inherent superintendence powers, the contours of which are not entirely apparent. See In re DeSaulnier, 360 Mass. 757, 759 (1971) (referencing “the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice” as separate and distinct from “the supervisory powers confirmed to this court by G.L. c. 211, s[ection] 3”). See also Commonwealth v. Lougee, 485 Mass. 70, 85 (2020) (Lenk, J., concurring) (“[W]e should acknowledge with some humility that our [tolling] orders [issued under the SJC’s superintendence powers] were not as clear as they might have been” in that they did not expressly reference delays caused by COVID from statutory time limits on pretrial detention). While unlikely the SJC would deem its own orders legally infirm, another state or federal court presented with the issue could—further confusing the issue going forward—or may decide to refer or certify the issue as a result of the uncertainty.
The Massachusetts Legislature may codify the Tolling Orders to provide certainty for civil litigants in the Commonwealth. While such retroactive legislation could itself be susceptible to challenge, presumably Massachusetts courts could uphold appropriately-drafted legislation in light of the SJC’s issuance of the Tolling Orders and the extraordinary circumstances presented by COVID-19. See Embry v. President & Fellows of Harvard College, 32 Mass.L.Rptr. 430, *4 (Mass. Super. Ct. Dec. 10, 2014) (retroactively applying statute of limitations in child sexual abuse cases; enactment of extended statute of limitations constituted “extraordinary circumstance” warranting relief). Massachusetts courts may also extend statutes of limitation on a case-by-case basis under the doctrine of equitable tolling, although such relief is rare. See, e.g., Halstrom v. Dube, 481 Mass. 480, 485 (2019) (“Equitable tolling is to be used sparingly, and the circumstances where tolling is available are exceedingly rare”)(quotation omitted).
While the Tolling Orders are laudable, they present long-lasting challenges for practitioners. While these issues are starting to emerge, only further time will tell how Massachusetts (and other) courts will resolve the numerous issues raised by the Tolling Orders.
Chris Stephens is a Member in the Commercial Litigation Group at Eckert Seamans Cherin & Mellott, LLC. His practice encompasses a wide variety of litigation disputes including business litigation, financial services, administrative, and appellate matters.
Elizabeth Dillon is an associate attorney in the Boston Office of Eckert Seamans Cherin & Mellott, LLC. Elizabeth focuses her practice on commercial litigation matters, specifically in the areas of construction and employment litigation.
Appreciation of Chief Justice Gants
by Abrisham Eshghi
“Imagine a world.” Some of the Chief’s greatest questions began with these three words. Sometimes, they prefaced a thought-provoking hypothetical where the Chief would alter the facts. Other times, they required thinking through the broader implications of a potential ruling that initially seemed straightforward. But, most often, these words were an invitation to imagine a world that is better than ours, and to imagine what we need to do to get there.
I had the extraordinary privilege of clerking for Chief Justice Gants in the 2017-18 term. It was a year spent trying to reason like him, react like him, probe like him, and simply keep up with him.
He welcomed disagreement. A cherished mantra of his was “when you point out that my reasoning does not make sense, there are only two possible outcomes: Either you have allowed me to avoid making a mistake, or you have identified that there must a better way to articulate this.” In fact, he assigned his clerks homework on this topic, such as a chapter from Malcolm Gladwell’s Outliers discussing a theory of why Korean airlines experienced a disproportionately high rate of plane crashes. The theory begins with the fact that when signs of danger appear during a flight, the pilot who spots the signs must alert the other pilots. Yet in cultures that value deferential communication styles with authority figures, this may translate to a cockpit where instead of the lower-ranking pilot unequivocally communicating imminent danger to the higher-ranking pilot, the lower-ranking pilot instead meekly suggests that something may not be quite right. My takeaway – yell at the Chief so he does not crash the plane!
He welcomed compassion. He truly never lost sight of the people that were governed by the cases that came before the Court. While other judges might start and end a case with the routine application of a statute or precedent, in the Chief’s hands, the case blossomed into an opportunity to examine how citizens of the Commonwealth live and experience the world around them. Standards of how a “reasonable person” would act or think are baked into almost every area of the law, and “common sense” is routinely invoked by courts as grounds for choosing one argument over another. But the Chief cautioned his clerks against blindly accepting words like “reasonableness” and “common sense,” as they were often shorthand for the convenient status quo. “Reasonable for whom?” he would ask. “Common sense for whom?”
He welcomed accessibility. The Chief never wanted to “hide the ball” in his work and habitually requested that his clerks craft judicial opinions so that “even an intellectually curious fourteen-year-old” could understand what he was trying to say. If, in the course of drafting an opinion, we encountered a tortuous precedent, he would insist that we “say it better” without replicating the difficulties. He had a knack for homing in on the occasionally muddled or misguided ways in which parties to a case framed issues, and then crafting a cleaner explanation of what the case was really about. The ease with which he exercised this last skill was particularly admirable.
It pains me to think about how much more he had in him to give. My only comfort is in sifting through my myriad memories of the time I was lucky enough to share with him. I will miss his brilliant questions, and his even more brilliant solutions. I will miss his antiquated cultural references that went over my head. I will miss his Red Sox metaphors that also went over my head. I will miss him addressing the trio of himself, my co-clerk Maia, and me as “us gals.” I will miss the intense swell of pride I felt during his 2015 speech at the Islamic Society of Boston Cultural Center when he said “[y]ou do not stand alone.” I will miss him spontaneously making up new lyrics to the song “The Impossible Dream” from Man of La Mancha. I will miss our rejuvenating “mental health walks” as we meandered through Boston Common. I will miss watching him absentmindedly devour an entire baguette in one sitting. I will miss seeing the two sizeable portraits of Justice Louis Brandeis and Justice Thurgood Marshall looming over his desk and thinking to myself that, with room on the wall for a third, a portrait of the Chief would complete this triptych of legal giants. I will miss the sparkle in his eye when he knew there was challenging work to be done. I will miss his infectious fits of giggles. And I will sorely miss him next year at my wedding, where he had promised to officiate.
I recently found the copy of The History of the Law in Massachusetts that the Chief gifted me on the last day of my clerkship. His parting words to me, penned on the front cover in his quirky doctor’s scrawl, were “believe in yourself as I believe in you.” Prior to his death, these words brought me great comfort. But in death, his words take on a different form. I feel them almost vibrating off of the page. Demanding that I believe in myself. Demanding that the time is now to take action. Demanding that I pick up the baton and continue his work.
Chief Justice Gants was inimitable. But we must now try our hardest to step into his magnificent mind so that we may carry on his extraordinary legacy.
I hope you’re still getting in good trouble, Chief.
Abrisham Eshghi is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. She clerked for Chief Justice Gants during the 2017-18 term.
Appreciation of Chief Justice Gants
We had the enormous privilege and pleasure of serving as law clerks to Chief Justice Gants during his first full year on the Supreme Judicial Court (2009-2010). He was an extraordinary teacher and mentor, and the year we spent in his chambers fundamentally shaped how we view the law and our role and responsibilities as lawyers.
Law clerks, when they are able to be helpful at all, tend to treat every case as a purely legal problem that can be solved by identifying the perfect case citation, judicial doctrine, or other legal tool. Chief Justice Gants took a broader view: all cases presented legal problems to solve, but most cases also required a judgment that weighed considerations of policy, administrability, and equity. In deciding a case, the Chief was always grateful for a clerk’s cogent legal analysis and the best citations available, but it was usually clear that — having been pretty sure from the start what the law was likely to provide — he had been spending his own time thinking through what the real-world consequences of the Court’s decision would be for lawyers, judges, and most particularly, everyday people.
He loved people — all sorts of people, including the two of us, a couple of strangers he found already hired and deposited with him even before he was confirmed. His law clerks were special to him, and he taught us with humor and affection. “You’re not a Jedi Knight yet, but you show great promise” is how he began his gentle review (and quiet wholesale restructuring) of the work we produced for him in the earliest months of the term, when we knew the least. He liked to take us on working walks across the Common to talk through cases that would be helpful to him as he worked out the shape of his decisions in his mind. This met his need for constant activity in days that were always too short for everything he wanted to get done: work, mentoring, and a little light exercise all combined in one outing. He was a brisk walker, but halfway across the street, we sometimes found we had left him on the corner: he never jaywalked, not even on the margin.
Every few weeks, the Chief would invite us to a sit-down lunch at his favorite Chinatown cafe. For the first few lunches, we expected that he had set the occasion to impart some great piece of wisdom or to let us know of some important development on the Court, but actually he just wanted noodles, a friendly chat, and a short break from his work. During our year at the Court and in all the years that followed, the Chief kept up with our personal and professional news and also with the accomplishments of our spouses and children. We never could figure out how he had the time or head space to manage this.
The Chief’s deep interest in people was at the heart of his work as a judge, and he was dogmatic only in his drive to deliver more justice to more people, inject more fairness into society, and bring more good to the world. The clearest expression of his judicial philosophy is the statement he made in a 25th anniversary Harvard class report, that deciding cases required him to balance the “sometimes conflicting obligations of following the law and ensuring fairness.” Worrying about the fairness of a legal rule requires a judge actually to see and consider the rule’s consequences for the individuals affected by it. The Chief put all of his intelligence and experience and wisdom into seeing those consequences clearly and weighing them fairly. First as an associate justice of the Court, then as its leader, the Chief believed the Court’s mission was not to hand down the law to the people but rather to make the law serve the people.
Early on, his decisions took on this mission in smaller cases like Papadoupolos, where he dispensed with the Commonwealth’s unique “natural accumulation” rule for liability claims involving snow and ice, a legal doctrine that gave no consideration for people injured in falls and that had long survived only on the basis of its repetition in the case law. Later, when he had reached the height of his own Jedi powers, he and the Court executed on this mission in much bigger cases, like Adjartey, which delivered a clear-eyed and comprehensive view of the systemic inequality and inequity that can arise in housing court, where most tenants are without counsel. The Chief’s opinion in Adjartey made the problems of people who must rely on the housing court seen and heard for the first time, and made the judicial system responsible for addressing those problems. Eleven years into our careers as lawyers, this challenge — to discern not only what the law allows, but also what fairness demands — is the most valuable, continuing lesson we take from our year working with the Chief.
The Chief never achieved his first great ambition, to play shortstop for the Red Sox, but as a judge, he had made it to the major leagues. That is what is so deeply tragic about losing him now. Six years into his role as the chief justice and with four years left before hitting the Court’s mandatory retirement age, he was really just rounding second base. He had established himself as one of the great jurists in the history of the Supreme Judicial Court, and he was focused on making permanent his mark on the justice system writ large. A hugely important report he had commissioned on racial disparities in the Massachusetts criminal justice system was published five days before his death. The morning he died, he was hammering out details of a statewide eviction diversion initiative, which aims to address the civil justice gap across the Commonwealth’s housing courts as they brace to manage the economic fallout from the COVID-19 pandemic. His heart was in the work of reform. As we grieve, it is in large part for the work he leaves undone.
Also, we miss him.
Larisa Bowman is a Visiting Associate Professor at the University of Iowa College of Law. She clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.
Mike Kaneb is Deputy Chief Legal Counsel to Governor Charlie Baker. He clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.