Verdrager v. Mintz Levin: The SJC Establishes Standards for Protected Self-Help Discovery in Aid of Anti-Discrimination Claims in Massachusetts

messing_ellennewhouse_martinby Ellen Messing and Martin Newhouse

Case Focus

In Verdrager v. Mintz Levin, 474 Mass. 382 (2016), the Supreme Judicial Court answered a question of first impression under Massachusetts law: Do the anti-retaliation provisions of state anti-discrimination law protect an employee who accesses her employer’s documents to support her employment discrimination claim?  The SJC held that, under certain circumstances, such activity may be “protected,” thereby precluding an employer from taking any adverse employment action based on that activity.  The decision examined the interplay between “self-help discovery,” or searches of employer materials outside the formal litigation discovery process, and the protections of the Commonwealth’s chief anti-bias statute, G.L. c. 151B, which bars retaliation against plaintiffs who engage in “protected activity.”  G.L. c. 151B, §4(4).  The SJC articulated the standards to be applied in determining whether employee acts of self-help discovery are protected, and specified limits on that protection.

Although this was a question of first impression in Massachusetts, in deciding that “self-help” discovery in a c. 151B case may be protected activity, the Court was not writing on a blank slate.  Rather, its decision drew upon the sizeable case law on this issue that courts around the country have developed.  Indeed, the multi-factor test for protected activity that the SJC has now adopted was expressly derived from a leading New Jersey case, Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 204 N.J. 239 (2010).  It is likely that Massachusetts courts will look to decisions from other jurisdictions in applying the new Massachusetts standards.

Consistently with the courts that have confronted this issue and its own jurisprudence on protected activity under c. 151B, see, e.g., Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000), the SJC in Verdrager held that self-help discovery “may in certain circumstances constitute protected activity under the statute, but only if the employee’s actions are reasonable in the totality of the circumstances.”  But the SJC placed an important limit on this holding, namely that only documents that would be subject to formal discovery may be subject to protected self-help discovery, although that can include privileged documents.  Finally, the Court noted that the determination whether the self-help discovery at issue was reasonable is to be made as a matter of law by the court, not by the jury.

Whether an employee’s self-help discovery was reasonable requires a fact-based determination.  The SJC held that, “without limiting the considerations that additionally may be relevant in individual cases, the seven nuanced factors in Quinlan should be taken into account in any such analysis.”  The Quinlan factors as adopted by the SJC are: (1) “how the employee came to have possession of, or access to, the document;” (2) a balancing of the “‘relevance’ of the seized documents to the employee’s legal action against the disruption caused by the seizure ‘to the employer’s ordinary business;”’ (3) “the strength of the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery;” (4) what the employee did with the document, or who the employee showed it to; (5) “the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential;” (6) “whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated” and “whether the employer has routinely enforced that policy;” and (7) “the broad remedial purposes the Legislature has advanced through . . . G.L. 151B” and “the decision’s effect on ‘the balance of legitimate rights of both employers and employees.’”  The SJC, again adopting the Quinlan approach, noted that this last factor is “‘a supplement’ to the other factors, and plays a decisive role only in the ‘close case’ in which it would be appropriate for these broader considerations to ‘tip the balance.’”

Of particular note for lawyers, the SJC held that self-help discovery protections apply equally to attorney-employees, such as the Verdrager plaintiff, and to documents that may be attorney-client privileged.  The SJC focused on the importance of ensuring that attorney-employees have the same opportunity as other employees to show documents to their own lawyers in order to obtain legal advice.

Verdrager clearly is a victory for employees’ rights in that it recognizes that employees who engage in self-help discovery in support of discrimination claims may be protected from adverse employment action.  The decision, however, sounded several cautionary notes.  First, the SJC limited its holding, and the application of the Quinlan factors, to claims under G.L. c. 151B, expressing no opinion on self-help discovery unrelated to such claims.  Second, because the decision protects only self-help discovery found to be “reasonable in the totality of the circumstances,” the SJC warned that employees who engage in self-help discovery “even under the best of circumstances . . . run a significant risk that the conduct in which they engage will not be found . . . [ultimately] to fall within the protections of the statute.”

Finally, the SJC envisioned that, in deciding whether self-help discovery in a particular case was reasonable, a court will separately analyze each document or type of document accessed.  As the SJC stated, “[t]he application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not.”  In such a case “the resolution of the claim of retaliation likely would entail a determination whether the employee’s unreasonable and unprotected acts, standing alone, would have induced [the employer] to make the same [adverse employment] decision.”

In sum, Verdrager now provides protection for reasonable acts of employee self-help discovery.  Employers will need to proceed very cautiously before taking adverse action against employees who acquire internal documents, even confidential ones, in the course of pursuing discrimination claims.  But discrimination plaintiffs, too, will need to consider carefully the factors articulated by the Court, and to judge carefully what acts of self-discovery will survive the future application of what we can now cal the seven-factor Verdrager test.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.

Ellen J. Messing is a partner in the Boston firm of Messing, Rudavsky & Weliky, P.C., which concentrates its practice in representing employees in labor and employment litigation, including wrongful termination, discrimination, contract, sexual harassment, and public employee matters.


SJC Rules State Must Set Annual Greenhouse Gas Emissions Reductions

sanders_dylanby Dylan Sanders

Case Focus

The state’s responsibility to confront climate change is now the subject of Massachusetts case law. In a landmark decision interpreting the state’s Global Warming Solutions Act (“GWSA”), Kain v. Department of Environmental Protection, 474 Mass. 278 (2016), the Supreme Judicial Court ruled that the Department of Environmental Protection (“DEP”) must impose mandatory “volumetric limits” on multiple sources of greenhouse gas emissions – meaning limits on the actual amount of greenhouse gases emitted by those sources – and that those limits must decline on an annual basis. The decision could have far-reaching implications for how the state regulates emissions in many sectors of the economy, with the SJC warning that the “act makes plain that the Commonwealth must reduce emissions and, in doing so, may, in some instances, elevate environmental goals over other considerations.” 474 Mass. at 292.

Background

The GWSA was enacted in 2008, against the backdrop of what the SJC characterized as the “emerging consensus … that climate change is attributable to increased emissions, … [and] that national and international efforts to reduce those emissions are inadequate.” 474 Mass. at 281. Among other provisions, the GWSA required DEP to maintain an inventory of greenhouse gas (“GHG”) emissions in the state and to determine the statewide GHG emissions level as of 1990.

The GWSA also required the state to adopt two types of declining GHG emission limits. One relates to total emissions from all sources, while the other relates to individual sources. First, the Executive Office of Energy and Environmental Affairs (the “Secretary”) was required to adopt limits on the total amount of GHG emissions from all sources for 2020, 2030, 2040 and 2050, with the 2050 limit reducing overall GHG emissions in the Commonwealth by 80 percent from the 1990 level. Second, the GWSA required DEP to adopt annual declining limits on individual sources of GHG emissions, in addition to the end-of-decade limits, specifically by “establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” This latter provision, codified at chapter 21N, § 3(d), led to the controversy that was decided in Kain.

DEP agreed that the end-of-decade limits were legally binding caps for statewide GHG emissions. However, with regard to Section 3(d)’s “declining annual aggregate emission limits” for sources of GHG emissions, DEP took the position these were aspirational “targets,” not binding caps, citing the statute’s reference to “desired” levels. Alternatively, DEP contended that several existing regulatory programs fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and that the agency need not adopt new regulations to comply with the law.

When DEP failed to adopt any new regulations on sources of GHG emissions pursuant to Section 3(d), four teenagers, the Conservation Law Foundation, and the Mass Energy Consumers Alliance sued DEP to compel it to adopt binding caps on sources of GHG emissions that declined annually. (The teenagers, two from Boston and two from Wellesley, were among scores of youth who, concerned about the impact of climate change on their future, had unsuccessfully petitioned DEP to adopt new Section 3(d) rules in 2012.) On cross-motions for judgment on the pleadings, the Superior Court ruled in favor of DEP, on the grounds that the three regulatory schemes cited by DEP fulfilled Section 3(d)’s requirements. After granting direct appellate review, the SJC reversed.

The SJC Decision

At the outset, the SJC acknowledged that DEP has wide discretion in establishing the scope of its authority, but stated that deference to DEP’s interpretation of Section 3(d) “would tend to undermine the [GWSA]’s central purpose of reducing emissions in the Commonwealth.” Id. at 287.

The Court first rejected DEP’s argument that Section 3(d) required only aspirational “targets” for limiting sources of GHG emissions, not binding caps. The Court observed that when the GWSA referred to “limits” elsewhere in the statute, DEP conceded that “limits” referred to binding caps. The Court refused to give the word “limit” a different meaning with regard to the annual limits on sources of emissions in Section 3(d). 474 Mass. at 288.

The Court also pointedly said that “a regulation, by definition, is not aspirational” and expressed doubt that the Legislature would require an agency to promulgate regulations that were merely aspirational. Finally, while DEP had stressed that the term “desired level” necessarily implied that “limits” on emissions were aspirational, the Court disagreed. The Court held that, in the context of the statute’s goal of reducing emissions in the Commonwealth, the term “desired level” meant the level of emissions from a source or category of sources that would be “suitable” to achieve the statewide GHG emissions limits. 474 Mass. at 289.

The SJC next turned to the three regulatory schemes that DEP argued fulfilled Section 3(d)’s requirements to limit sources of GHG emissions, and held that none satisfied the statute’s mandate. The first regulatory scheme limits the rate of leakage of a powerful greenhouse gas from certain electrical switch gear, with the intent of gradually reducing the leakage rate from the equipment.  The Court held that this regulatory scheme did not satisfy Section 3(d) because it established only a declining rate of emissions from sources, not a cap on the actual volume of emissions, and the amount of leaked emissions therefore could increase simply by the installation of additional equipment in a facility or in the state as a whole. 474 Mass. at 295.

As to the second regulatory scheme, the “low emission vehicle” (“LEV”) program, which also “regulates through the imposition of rates, rather than actual caps on emissions,” the SJC held it did not comply with Section 3(d)’s requirement that DEP promulgate declining volumetric emissions limits. 474 Mass. at 299. The LEV program regulates emissions based on the average emissions of each auto manufacturer’s fleet of cars. Thus, like the regulations regarding switch gear emissions, although the average rate of emissions from a vehicle fleet may decline, the total number of vehicles on the road from a manufacturer’s fleet may increase and thus the volume of emissions from those sources may increase as well. Id.

Here and elsewhere, DEP argued that it should be free to use a rate rate-based mechanism rather than a volume-based cap on emissions, because using a cap would potentially limit the actual number of emission sources. Disagreeing, the Court said the GWSA required that new or additional GHG sources must comply with a regulatory scheme that required the reduction of the actual volume of emissions. 474 Mass. at 295.

Finally, the SJC turned to the Regional Greenhouse Gas Initiative (“RGGI”), a regional cap and trade system for carbon dioxide emitted by power plants, pursuant to which the overall cap on emissions from plants in Massachusetts and eight other states is reduced by 2.5 percent each year. Although RGGI imposes an overall cap on carbon dioxide emissions that declines annually through 2020, the SJC held that it nevertheless did not fulfill Section 3(d)’s requirements. The Court observed that RGGI was established by a separate statute, and that the GWSA elsewhere created a separate process by which emission levels associated with the electric sector are set. Id. at 297. These factors, said the Court, indicated the Legislature did not intend for the RGGI program to be part of the Section 3(d) regulations. In addition, the Court noted that under RGGI, a Massachusetts power plant could purchase allowances from another state that would permit the Massachusetts plant to increase emissions. Accordingly, RGGI does not actually require carbon dioxide emissions from power plants located in the Commonwealth to decrease annually.

In ruling that none of the three programs proffered by DEP satisfies Section 3(d)’s requirements, the SJC acknowledged that these schemes may play important roles in achieving greenhouse gas reductions. But the SJC also repeatedly said that, because these regulatory schemes do not actually require annual decreases in the volume of GHG emissions, they simply do not require what Section 3(d) mandates.

Conclusion

The full import of Kain remains to be seen.  At a minimum, it requires DEP to establish annual declining volumetric limits for those sources, or categories of sources, of emissions in the GHG inventory, which will help the state achieve its 2020 and 2050 limits.  Designing programs to achieve those limits is another matter.  Moreover, the Section 3(d) regulations were supposed to take effect no later than January 1, 2013, and to sunset on December 31, 2020. The work at hand now concerns what can best be achieved in the time that remains.

 

Dylan Sanders practices environmental law at Sugarman, Rogers, Barshak & Cohen, P.C., and, together with his colleague Phelps Turner, represented the four teenage plaintiffs in the Kain case.


Skawski v. Greenfield Investors Prop. Dev. LLC Clarifies Which Courts Have Jurisdiction to Hear Appeals of Major Development Permits

Orloff_Gordonby Gordon Orloff

Case Focus

In February 2016 the Supreme Judicial Court decided Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580 (2016), and concluded that, in establishing the permit session of the Land Court, “the Legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior Court.”  Id. at 581.  Therefore, Skawski ruled that the Housing Court lacked jurisdiction over challenges to a special permit granted for a major developments.  That decision was consistent with both the Appeals Court’s rescript decision in Skawski, 87 Mass. App. Ct. 903 (2015), and the Appeals Court’s earlier decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871 (2015).

G.L. c. 185, § 3A (“Section 3A”) gave rise to each of these cases.  That statute, which was enacted in 2006, established the permit session of the Land Court and granted it “original jurisdiction, concurrently with the superior court department, over civil actions in whole or part … arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property” and other similar projects with 25 or more dwelling units and/or involving the construction or alteration of 25,000 square feet or more of gross floor area (which Skaswki termed “major developments”).

Skawski considered an abutter’s challenge to a special permit granted by the Greenfield Planning Board for construction of a retail development of approximately 135,000 square feet.  As was then common in Hampden County, the appeal was filed in Housing Court.

The Chief Justice of the Trial Court denied a motion to transfer the case to the permit session of the Land Court.  Later, the Chief Justice of the Housing Court failed to act on a request by the trial judge that the case be transferred administratively to the Superior Court Department and that she (the Housing Court trial judge) be cross-designated as a Superior Court judge.

Faced with a pending motion to dismiss for lack of subject matter jurisdiction, the Housing Court judge withdrew her request and denied the motion to transfer the case.  She then reported her ruling to the Appeals Court.  Following the Appeals Court’s reversal of the trial judge’s order, the SJC granted the plaintiff’s application for further appellate review.

The issue confronted by the SJC was how to square Section 3A, which established the permit session, with G.L. c. 40A, § 17 (“Section 17”), which “gave subject matter jurisdiction in all permit appeals to the Housing Court, along with the Land Court, Superior Court, and District Court, and G.L. c. 185C, § 20, [which] gave any party the power to transfer such an appeal to the Housing Court if it were not initially filed there.”  Skawski, 473 Mass. at 585.  Chief Justice Gants engaged in a lengthy analysis of the language, context and history of Section 3A to reach the conclusion that the Housing Court was without subject matter jurisdiction to hear the appeal.

Skawski first acknowledged that Section 3A did not expressly repeal Section 17.  The SJC next turned to the legislative purpose of Section 3A to determine if it repealed Section 17 by clear implication.  The SJC emphasized that Section 3A was but one section of St. 2006, c. 205 (the “act”), “whose purpose is clear from its title, ‘An Act relative to streamlining and expediting the permitting process in the commonwealth,’ and its preamble—‘to forthwith expedite the permitting process in the commonwealth.’”  Skawski, 473 Mass. at 587.  “From the text of the act and its legislative history, it is plain that the Legislature sought to reduce the costs and delays of the permitting process required to conduct business and develop property.”  Id.  (citations omitted).  The SJC also observed that the “comprehensive scope of the act further suggests that the Legislature intended to be equally comprehensive in declaring which court departments would have original jurisdiction to adjudicate major development permit appeals.”  Id. at 588.

In light of the legislative purpose, the SJC concluded that, “[b]y specifying that the Superior Court Department shared concurrent jurisdiction with the permit session of the Land Court, and not also specifying any other court department as having concurrent jurisdiction, the Legislature impliedly reflected its intent that these major development permit appeals be adjudicated only by these two courts.”  Id. at 587-88 (emphasis added; citations omitted).

The SJC found further support for this conclusion in the fact that the “establishment of the permit session of the Land Court to hear major development permit appeals was an integral part of the act’s over-all plan to expedite the permitting process because § 3A establishes demanding time frames for the final disposition of such appeals in the permit session.”  In addition, Section 3A “allows any party, with the approval of the Chief Justice of the Trial Court, to transfer the appeal to the permit session….  But, if the Housing Court continued to have jurisdiction over these cases, any party could invoke G.L. c. 185C, § 20, and ensure that the final disposition of the appeal would be decided, not by the permit session, but by the Housing Court.”  Id. at 588-89.  Finally, the SJC found that the legislative history further supported its decision.  Id. at 589-591.

The SJC concluded

that the clear implication of these amendments is that the Legislature intended that major development permit appeals be adjudicated in the permit session and, if they could not be, either because the Chief Justice of the Trial Court denied the motion to transfer the case to that session or because a party claimed a right to a jury trial, that they be adjudicated in the Superior Court Department ….  In short, … the clear implication of § 3A is that the Legislature wanted all major development permit appeals to be adjudicated either in the permit session of the Land Court or in the Superior Court and therefore limited jurisdiction over these cases to these courts.

Id. at 590-91 (footnote omitted).

Interestingly, the SJC did not order dismissal of the case for lack of subject matter jurisdiction.  Rather, it remanded the case to Housing Court to give the parties the opportunity to apply to the Chief Justice of the Trial Court for a transfer to the permit session of the Land Court or to the Superior Court.

Skawski gives effect to the Legislature’s intent to expedite appeals concerning major projects through use of the newly established permit session of the Land Court, staffed by judges with an expertise in land use matters.  Practitioners should take note that interdepartmental assignments of Housing Court judges to hear major development permit appeals are now impossible because the Housing Court is without jurisdiction over such appeals, notwithstanding the language of G.L. c. 40A, § 17 and G.L. c. 185C, § 20.

Gordon Orloff is a litigator at Rackemann, Sawyer & Brewster in Boston, where he focuses on resolving real estate, land use, probate and business disputes.  Mr. Orloff is a regular contributor to Massachusetts Land Use Monitor, a blog that reports on new developments in real estate and land use law.


Commonwealth v. Moore: SJC Weighs In on Postverdict Juror Contact under Mass. R. Prof. Cond. 3.5

austin_neildonovan_carolineby Neil Austin and Caroline Donovan

Case Focus

Attorneys can initiate post-verdict contact with jurors without court permission or supervision, in the wake of the Supreme Judicial Court’s holding in Commonwealth v. Moore, 474 Mass. 541 (2016).  Nearly one year after the revised Massachusetts Rules of Professional Conduct went into effect on July 1, 2015, the SJC confirmed that Rule 3.5(c) worked a change in practice, allowing attorneys to communicate with jurors without requesting permission from the trial judge.  Still, in other important areas, some constraints on juror contact remain.

Before the recent revisions to the Rules of Professional Conduct, attorneys in Massachusetts could initiate contact with jurors only with the permission of the trial judge, and then only on some suggestion that the jury had improperly considered extraneous material.  See Commonwealth v. Fidler, 377 Mass. 192 (1979).  In 2013, the SJC asked the Standing Advisory Committee on the Rules of Professional Conduct to re-examine the Massachusetts rules in light of changes to the ABA’s Model Rules.  The committee considered two proposed versions of Rule 3.5(c), one that allowed post-discharge juror contact and the other that affirmed Fidler’s prohibition on juror contact without the permission and supervision of the court.  By unanimous vote, the committee recommended the version liberalizing juror contact. Following a comment period and argument, the SJC adopted the rule.  Effective July 1, 2015, attorneys in Massachusetts may contact jurors post-verdict subject to three exceptions: (1) if the communication was “prohibited by law or court order”; (2) if the juror made known his desire not to communicate with the attorney, either directly or indirectly; or, (3) if the communication involved “misrepresentation, coercion, duress or harassment.”

New Rule 3.5(c) was soon tested.  In mid-July 2015, appellate counsel to Dwayne Moore sought to communicate with the jurors who had convicted Moore of murder in 2012.  On July 14, 2015, two weeks after the effective date of revised Rule 3.5(c) and while Moore’s appeal was pending, defense counsel sent the Commonwealth the letter he planned to send the jurors.  The proposed letter asked whether the jurors had been exposed to any extraneous information during the trial and deliberations, including information about the mass shooting at Sandy Hook Elementary School.  Having received no response from the Commonwealth, defense counsel sent the letter to the jurors one week later.  That same day, the Commonwealth’s attorney e-mailed defense counsel, notifying him that the Commonwealth would file a motion to prohibit juror contact, which it viewed as still impermissible under the revised rule.

The trial judge heard argument on the Commonwealth’s motion and reported five questions to the Appeals Court (which were then transferred to the SJC):

  1. In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204, 385 N.E.2d 513 (1979)?
  2. In generally adopting the American Bar Association’s Model Rule 3.5 containing the language ‘prohibited by law,’ did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
  3. If the answer to question two is ‘no,’ then what types of contact with discharged jurors by an attorney, if any, are ‘prohibited by law’ under Rule 3.5(c)(1)?
  4. If the answer to question one is ‘yes,’ and the answer to question two is ‘no,’ does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
  5. If the answer to question four is ‘yes,’ in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?

Commonwealth v. Moore, SUCR2011-10023 (July 27, 2015), slip op. at 13-14.

On the first question, the Court said that, in “adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, postverdict contact of and communications with jurors free from court oversight.”  Commonwealth v. Moore, 474 Mass. 541, 547 (2016).  Second, the Court held that Fidler continues as precedent to the extent that, like Fidler, Rule 3.5(c) prohibits inquiries into the jury’s deliberations.  More specifically, “prohibited contact and communication include those that violate common-law principles, such as inquiries into the substance of jury deliberations, and communications that violate statutory law, other court rules, or specific court orders.”  Id. at 549.  Finally, the Court held that Rule 3.5(c) applies to attorneys seeking to contact jurors discharged before July 1, 2015, the rule’s effective date, if the case was pending on appeal on July 1, 2015, or if the appeal period had not yet run.  Id.  at 551.  If either of those conditions is met, no court permission is required to contact jurors discharged before July 1, 2015.  Id.

Beyond simply answering the trial court’s questions, the SJC sought to provide procedural guidelines to counsel.  Most notably, the Court required that a lawyer provide opposing counsel with five business days’ notice of the lawyer’s intent to contact the jurors. That notice should specify the proposed manner of communication and the substance of the inquiry, including, “where applicable, a copy of any letter or other form of written communication the attorney intends to send.”  Id. at 551-552.  The Court stated that the preferred method of juror contact is by written letter, which should include a statement that the juror may decline to respond to such communication.  While the Court observed that opposing counsel may seek relief if the proposed communication appears improper, the Court sought to tamp down routine challenges to proposed communications, underscoring that “[o]ur mention of the availability of judicial intervention and relief is not intended to serve as an invitation to counsel to seek it as a matter of course.”  Id. at 552.

Thus, lawyers in Massachusetts may now contact jurors without the permission or supervision of the trial court, including jurors discharged prior to July 1, 2015, if the direct appeal was then pending or the appeals period had not yet run.  But before doing so, counsel must first provide opposing counsel notice of their intent to contact the jurors, and opposing counsel has an opportunity to move the court for relief.  When counsel does make contact, he or she cannot inquire about the substance of the jury’s deliberations; that subject continues to be off-limits.  Moore provided preliminary answers and guidance concerning the implementation of Rule 3.5(c).  Whether there will be additional litigation surrounding lawyer-initiated postverdict contact with jurors remains to be seen.

Neil Austin is a partner in the litigation department of Foley Hoag LLP, where he specializes in commercial litigation and government investigations.

Caroline Donovan is an associate in the Litigation Department at Foley Hoag, where she maintains a practice in complex civil litigations and investigations.


Special Immigrant Juvenile Status in Massachusetts

kelly_nancyby Nancy Kelly

Case Focus

In a recent decision, Recinos v. Escobar, the Supreme Judicial Court (“SJC”) addressed and resolved a discrepancy between state and federal law as to whether individuals between the ages of 18 and 21 fall within the jurisdiction of the Massachusetts courts.  473 Mass. 734 (2016).  The federal immigration statute considers individuals under the age of 21 children, but Massachusetts ordinarily considers individuals over the age of 18 adults.  The discrepancy is important in immigration cases when individuals between the ages of 18 and 21 apply for Special Immigrant Juvenile (“SIJ”) status before the U.S. Citizenship and Immigration Services of the Department of Homeland Security (“USCIS”).

The plaintiff Recinos, Liliana Recinos, is a 20-year-old unmarried Salvadoran who attempted to apply to USCIS for SIJ status.  SIJ status is available as an avenue for juveniles who have suffered abuse, neglect or abandonment to apply for permanent resident status before USCIS or the Immigration Court.  As a prerequisite to applying for SIJ status, an applicant must obtain findings from a state court with jurisdiction to make determinations about the custody and care of juveniles that: 1) the applicant is dependent on the juvenile court; 2) reunification with one or both parents is not viable due to abuse, neglect or abandonment; and 3) it is not in the applicant’s best interests to return to her country of origin.  Armed with those findings, a juvenile, up to age 21, can file a petition with USCIS for classification as a SIJ.  If that classification is granted, the applicant can apply for lawful permanent resident status in the United States.

Recinos sought equitable and declaratory relief from the Middlesex County Probate and Family Court, specifically requesting the findings that would allow her to apply to USCIS for SIJ status.  Twenty years old at the time of filing, Recinos “chronicled a childhood riddled with instances of physical and emotional abuse by her father,” “her mother’s failure to protect her,” and “chronic gang violence in her neighborhood.”  Recinos at 736.  The judge dismissed her complaint for lack of jurisdiction because she was over 18 years of age.  Recinos filed an appeal with the Appeals Court, seeking expedited processing.  The SJC took the appeal on its own motion and expedited the case to preserve Recinos’ opportunity to apply for SIJ status before her 21st birthday.

Justice Spina, writing for the court, described SIJ as “a unique hybrid procedure that directs the collaboration of state and federal systems.”  Recinos at 737 (quoting H.S.P. v. J.K., 223 N.J. 196, 209 (2015), and Matter of Marisol N.H., 115 A.D. 3d 185, 188 (N.Y. 2013)).  The state courts, which have expertise in child welfare and abuse, are entrusted by Congress to perform a best-interest analysis and make factual determinations about child welfare necessary to SIJ eligibility, while the federal agency, USCIS, retains the final determination regarding eligibility for SIJ status.  Recinos at 738.

The court concluded that, while in most circumstances the Probate and Family Court has jurisdiction over children only until age 18, the court’s equitable powers under the Massachusetts General Laws, chapter 215, section 6, are “broad and flexible, and extend to actions necessary to afford any relief in the best interests of a person under their jurisdiction.”  Recinos at 741 (quoting Matter of Moe, 385 Mass. 555, 561 (1982)).  Noting that “a fundamental maxim of general equity jurisprudence is that equity will not suffer a wrong to be without a remedy,” the court found that the Commonwealth has a policy of protecting children from wrongs that result “from the absence, inability, inadequacy or destructive behavior of parents,” which are the same wrongs that SIJ status is intended to remedy.  Recinos at 741 (quoting Mass. Gen. Laws ch. 119, § 1).

The court compared the case to Eccleston v. Bankosky, 438 Mass. 428, 431-433 (2003), in which the SJC, noting that attaining the age of majority does not necessarily mean that one is self-sufficient, extended jurisdiction through equity to order continued support for a child after the age of 18 where she could not live with either parent because of abuse and had no means of support.  Because the state legislative scheme provided for post-minority support for an unemancipated child who lived with one parent, the court closed the “unintended gap” by providing an order for support through its equitable powers.  Similarly, the court in Recinos used its equitable powers to fill the gap between the state court’s statutory jurisdictional limits and the federal immigration statute.

Finally, the court addressed the question of dependency.  Analyzing the language of the statute, the court reasoned that, because Recinos could not become self-sufficient without having her case adjudicated, and because court findings were a prerequisite to having her immigration case considered, she was dependent on the court to obtain self-sufficiency.

Justice Cordy issued a concurring opinion, stating that, he would have preferred a legislative solution.  Justice Cordy supported the majority’s conclusion because of strong state policies aimed at protecting children from the effects of asylum and neglect and the gap between the ordinary jurisdiction of the state court and the federal benefit, but said that it would have been preferable for the Massachusetts State Legislature to have acted on legislation that would have explicitly expanded the jurisdiction of the Probate and Family Court to address claims like those presented by Recinos.

Legislation has been pending which would address this issue, creating a statutory avenue for 18 to 21-year-old youth to seek findings necessary to apply for SIJ status.  An Act Relative to Special Juveniles, SB 740, 189th Gen. Ct. (Mass. 2016).  On April 4, 2016, subsequent to the issuance of the initial order in this case, the bill was sent to study, likely delaying the adoption of any legislation on this matter for some time.

Nancy Kelly is co-managing director of the Harvard Law School Immigration and Refugee Clinical Program (HIRC) at Greater Boston Legal Services (GBLS) and senior clinical instructor and lecturer on law at Harvard Law School.


Finding Easements Isn’t Easy: The SJC Requires an Expansive Search of the Land Registration System

Barnett_Bruceby Bruce Barnett

Case Focus

How far must one look to identify easements or other encumbrances on registered land in Massachusetts?  The Land Registration Act suggests that all answers should lie within the lot’s certificate of title:  according to the statute, the holder of a certificate “takes free from all encumbrances except those noted on the certificate,” M.G.L. c. 185, § 46, and the certificate “shall set forth … all particular … easements … to which the land or the owner’s estate is subject,” id. § 47.  But, the statute does not tell the whole story, and last fall in Hickey v. Pathways Association, Inc., 472 Mass. 735 (2015), the Supreme Judicial Court (“SJC” or “Court”) confirmed just how far beyond one’s own certificate the search must extend.

As with many Massachusetts easement disputes, Hickey is about access to the beach—Cape Cod Bay in Dennis, in this case.  The Hickeys and their neighbors, the Paglias, sought confirmation that only they could use a twenty-foot wide way (the “Way”) that runs between their water-front properties from Shore Drive to the beach.  The owners and guests of numerous lots in-land from Shore Drive had been using the Way.  Owners of at least 38 in-land lots (the “access-seekers”) were parties to the action; as will be seen, the result has implications for many more lots in the area.

Before proceeding to the details of Hickey, it will be helpful to say a few words about registered land and the typical process for developing a registered-land subdivision.  In Massachusetts, land registration is a lengthy, voluntary process of exhaustive title examination (and, potentially, judicial dispute resolution) that results in a guaranteed (and state-insured) confirmation of the owner’s title to the land, which is set forth on a court-issued certificate of title.  The “registration case” proceeds in the Land Court, and the tract is initially depicted as a single lot on a court-approved plan referred to as the case’s “A Plan.”

To make a subdivision, the owner creates lots by dividing the tract one sub-area at a time, with each sub-area becoming the subject of its own plan.  These later plans, which show individual lots, are designated by sequential letters assigned in chronological order (first the “B Plan,” then the “C Plan,” etc.).  When a lot is conveyed, the new owner receives a certificate of title that, at least according to the statute, states all encumbrances on the land.

The registration case in Hickey involved a 217-acre tract.  The Paglias’ and Hickeys’ lots and the Way were eventually established by the case’s D Plan and F Plan.  The lots were expressly granted rights in the Way when they were created—the issue in Hickey was whether anyone else also had rights.  There is no mention of any grant to others of rights in the Way in the Paglias’ and Hickeys’ certificates of title (or those of their predecessors).  Under the statute, that would be the end of the story.

Nonetheless, the SJC held that all the access-seekers’ lots enjoyed easements in the Way by applying (and, some would say, expanding) an exception to the statutory rule that it had created in 1994.  See Jackson v. Knotts, 418 Mass. 704 (1994).  Under that exception, an owner “might take [its] property subject to an easement at the time of purchase … if there were facts described on [its] certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system.”  Id. at 711.  In Jackson and Hickey, an investigation was required because the lots were in subdivisions, as is very often the case for registered land.  The question for investigation is “whether there were facts within the Land Court registration system available to [the owners], at the time of their purchases, which would lead them to discover that [their] property was subject to an encumbrance, even if that encumbrance was not listed on their certificates of title.”  Id.

In Jackson, another beach case, the SJC created the exception only to find that it did not apply.  The Court looked beyond the silent certificates of the purportedly burdened land to other documents in the registered-land system, as the exception requires, but found no indication in those other documents that the developer intended to convey rights over the disputed access way to anyone else.  Id. at 712-13.

The Hickey Court’s application of the Jackson exception yielded the opposite conclusion.  The SJC rejected the Hickeys and Paglias’ argument that the required examination was limited to tracing their chains of title back to the D and F Plans that created their lots and back through the deeds by which their lots were conveyed and the resulting title certificates.  Those documents showed no grant of any interest in the Way to anyone else.  The SJC, however, held that a reasonable search must include much more.  Hickey, 472 Mass. at 757-59.

First, the search must go farther back in time and must include documents related to land wholly apart from the land on the D and F Plans.  In particular, the Court looked to the B Plan, which earlier had subdivided land on the other side of the 217-acre registered tract.  The B Plan created over 225 lots stretching five blocks in-land from the shore, with ways to the beach placed after every third waterfront lot.  The B Plan was not referred to in the Paglias’ and Hickeys’ certificates.  Nevertheless, it was included in the Court’s required reasonable search.  From the B Plan, the SJC stated, the Paglias and Hickeys would have observed the pattern of development in another area of the subdivision and should have inferred that the developer intended a similar pattern in their area, even if there was no indication of other lots on the D and F Plans.

Next, the Court held that a reasonable search must move forward in time from the creation of the Paglia and Hickey lots and the Way (in 1936 and 1944).  In doing so, the search must include the title certificates and plans of other lots in the subdivision, at least to the extent the documents were added to the system before the Paglias and Hickeys purchased their lots (in 1994 and 1999).  In setting the geographic scope of the examination, the SJC built on its statement in Jackson that, for a lot of registered land bounded by a way, a prospective purchaser “would ‘be expected to examine the certificates of other lot owners in the subdivision to determine whether others might have an interest in the way.’”  Hickey, 472 Mass. at 756 (quoting Jackson, 418 Mass. at 712).

Geography-wise, however, Jackson, was a relatively simple case—it involved primarily one subdivision plan covering a limited area and showing all relevant lots.  In Hickey, none of the access-seekers’ lots appeared on the Paglias’ D Plan or the Hickeys’ F Plan—they were all created subsequently.  The SJC brought them and their respective certificates of title into the search through a series of marginal references linking one plan to another and then to a third and through the fact that one later plan (itself showing over 75 lots) “includes open-ended ways leading into other land of [the developer],” which was ultimately subdivided into over 100 additional lots on yet another plan.  Id. at 760.  The Court concluded that the Paglias’ and Hickeys’ reasonable searches of documents in the registered-land system should include the separate certificate of title for at least each of the 175-plus lots appearing on those later plans.

Looking at that broad array of title documents, the Court found all the access-seekers were entitled to use the Way, though with slightly different reasoning for two separate groups.  The title certificates of the first group granted rights in all the ways appearing on certain plans, and those plans included the disputed Way.  The SJC affirmed the Land Court’s conclusion that the first group thus had access rights that a proper search would have revealed.  The owners in the second group appeared to be differently situated:  their lots were granted rights in ways appearing on a particular plan (the M Plan), which, in the form presented to the Land Court, did not show the Way.  Accordingly, the Land Court rejected their claim.  In reversing, the SJC gave a further indication of how far a search under the Jackson exception must extend.  The Court ruled that a purchaser could not rely on the version of a registered-land plan on file at the county registry, which is where title searches take place.  Rather, the SJC took judicial notice of the original M Plan, on file with the land registration office at the Land Court in Boston, which shows a portion of the D and F Plans, including a portion of the Way and the Hickeys’ and Paglias’ lots.  Looking at the original M Plan, the SJC concluded that the developers intended to treat the areas shown on the plans “as an interrelated whole” and to grant easements over the Way to all lots.  Id. at 761-64.

In sum, Hickey shows that a prospective purchaser undertaking due diligence of registered land cannot rely on the statutory promise that “all encumbrances [will be] noted on the certificate [of title].”  M.G.L. c. 185, § 46.  Rather, the purchaser must be prepared for an extensive (and expensive) review of potentially hundreds certificates of title to other lots and dozens of plans (including original versions located only in Boston) to determine whether anyone else shares rights in the land.

Bruce Barnett is Of Counsel at DLA Piper, where he concentrates his practice on resolving complex business disputes for clients in state and federal courts and in arbitration, as well as on assisting the firm’s clients with bankruptcy and regulatory matters.


Helping to Create the “Practice Ready” Lawyer

Burroughs_Allisonby BBA President Lisa Arrowood

President’s Page

In late 2015, I had the honor of speaking at one of the several swearing in ceremonies for new lawyers in Faneuil Hall. It’s one of the things I enjoy most about being an officer of the Boston Bar Association.   It was so nice to speak to a group of enthusiastic young lawyers, as well as their proud family members.

As I welcomed them to the profession – a profession which, I think, is one of the best in the world – I knew that many of them had not yet found jobs that required a J.D. degree and that some of them never would.

There are so many challenges affecting lawyers today that it’s hard to list them all, but I think for many of the people who recently graduated law school the most significant challenge is the reduction in the number of jobs available for new lawyers.

I have always had a great deal of sympathy for anybody who put themselves through the three years of rigorous study that law school requires – not to mention the cost – who then get out and don’t get jobs.  As a hiring partner at two separate firms, I have received countless resumes from incredibly impressive recent graduates for whom we had no openings. It breaks my heart to see people work very hard to do well both in college and law school, and then be unable to find employment.   This is such a contrast to the situation not so very long ago when there were well-paying jobs galore.

Compounding this issue is the fact that these recent graduates don’t yet know how to do much legal work.  For those who will never get hired, they need to learn how to do the cases ordinary people will hire a solo practitioner to do handling a divorce case, drafting a will or handling an eviction.

And so a big part of what I’m focusing on as President of the BBA is finding ways to help those people. Can we get them all jobs? No. But what we can do is help them become “practice ready.” We can help them build practical skills so they can represent regular people with regular legal needs. These are the clients who aren’t eligible for legal aid, but who still can’t afford most lawyers out there.

To that end, I’m so pleased to announce that in January we launched “Friday Fundamentals,” which is a series of short, “how-to” trainings on specific legal issues. These sessions are designed to give new attorneys the practical and technical skills required to represent clients, as well as add some additional knowledge and expertise to their resume.

The BBA is also working hard to ensure that new lawyers who want to go solo are getting top-notch guidance and support.  Later this year, we will offer a comprehensive, hands-on workshop on how to launch a successful solo practice. This, in addition to our existing resources – from offering a place to meet with clients in our new member space rooms to discounts on professional liability insurance through USI Affinity – should help new graduates start their own practices and begin representing clients who now have no legal representation and who are part of the pro se litigant crisis troubling our courts.

With its well-established Professional Development program structure, the BBA is incredibly well suited to teach these skills. When I first learned about the BBA’s brown bag lunches, I went to a few of them.  In 90 minutes over lunch, a young lawyer can learn from the stars of the bar – for free!

Friday Fundamentals is building off this very successful model. From now until June, each of the BBA’s 24 sections – covering all areas of law – will offer CLEs or brown bag lunch programs designed for beginners. I’m thrilled and proud of the effort that these Section leaders have put in toward training the next generation of lawyers.  To those of you with new associates in your ranks: encourage them to take advantage of this series.  For those young lawyers out there: these programs are for you.  Take advantage of them!

Are we going to fix this in a year? No. But it’s a wonderful place to start.

Lisa is a founding partner of Arrowood Peters LLP, whose practice concentrates on business litigation, employment disputes, medical malpractice, personal injury, and legal malpractice. At the BBA, Lisa has served as the President-Elect, Vice President, and Secretary of the Council, the Co-Chair of the BBA Torts Committee, and a member of the Executive Committee, as well as various other committees. She is a Fellow of the American College of Trial Lawyers (ACTL), a Fellow of the International Academy of Trial Lawyers and immediate past Chair of the ACTL Massachusetts State Committee as well as a member of the Boston Bar Foundation’s Society of Fellows. 


The Federal Judicial Selection Process

Burroughs_Allisonby Judge Allison D. Burroughs

Voice of the Judiciary

As the most newly-minted judge in the Federal District of Massachusetts, I have been asked to reflect on my experience through the selection process while it is still relatively fresh in my mind.  At least in this district, in my round (and as I learned at baby judge school, there is a wide variety between districts), the two Massachusetts senators formed a selection committee, headed by Judge Nancy Gertner (ret).  The committee solicited applications.  The application itself was long and detailed.  It collected a lot of information which I am sure was helpful to the committee, but also required me to dig up long forgotten personal information (like addresses, phone numbers and jobs) going back to when I was 18 years old. Harder than it sounds.  This likely served the dual purpose of providing information, but also sorting out who was truly committed to the process.  The names of the approximately 12 committee members and the application itself were publicly available.

The front end of the process moved very quickly. Once the application deadline had passed (late January, 2014), I was asked to interview with the committee (approximately February).  The interview questions were as wide ranging and diverse as the interests of the committee members and included topics such as temperament, role of a judge, reasons for wanting to be a judge, substantive legal questions, experience with various sorts of cases, views on discovery and professional and personal  background.    The next step was an interview with the two senators (approximately March).  In my case, they interviewed me together, but I am not sure that is always the case.  At some point thereafter (approximately April), I was notified that my name was being forwarded to the White House.  This was the single most exciting moment of the process and one that I will always remember.  I was in the lobby of a hotel, on vacation with my family, when my cell phone rang.  I didn’t recognize the number and let it go to voice mail. It turned out to be Senator Warren herself, asking that I return the call.  Needless to say, I returned the call very promptly.  I have kept that voice mail – truly one of those calls you don’t really ever expect and certainly don’t forget.

After that, my primary contact with the process was through the Justice Department Office of Legal Policy rather than the Senators.  My application, resume, background and professional qualifications were vetted by the FBI – which I know only because of the number of calls I got from people who had been contacted. There was an interview in the Old Executive Office Building that included White House Counsel staff and people from the Department of Justice, among others (but not the President).  During this same time frame, I was also vetted by the ABA which traditionally has been given the opportunity to review candidates prior to their nomination and to share with the White House its opinion of an applicant’s qualifications.  The vetting process is an odd thing to experience, in part because it can be awkward to interact with people that you realize are likely being interviewed about you.  It’s also disquieting to know that you are being judged by committees of people whom you have never met and who don’t know you.  At various points, I had the chance to respond generally to things that were said about me and my qualifications.  On the one hand, some people are very generous in their assessment of others.  That being said, there were also comments that seemed unfounded, but that were, in some instances, hard to defend against.  It was also humbling and somewhat surprising to realize that strong endorsements could come from unexpected constituencies, but that the opposite was also true.

In approximately May, I was informed by the Office of the Legal Policy that the President was going to nominate me.  Surprisingly, this moment was much less climactic than learning that my name was going to be forwarded to the President – largely because it was the culmination of a process that I knew was going on, rather than a surprise call.  I was formally nominated on July 31, 2014.  On September 17, I had my confirmation hearing which involved the Senate Judiciary Committee questioning a panel that consisted of me and 3 other nominees from other districts (3 Article III judges and 1 Article II judge).  The hearing was not attended by all of the committee members and was shorter than I anticipated.  The questioning was done by one Senator from each party.  The Senators who attended and the ones that did not then had the opportunity to follow up the hearing with written questions. These were quite substantive and covered topics such as the death penalty, my view of precedent, appropriate judicial temperament, gay marriage, equal protection and the reach of the Commerce Clause.

On November 20, I was voted out of committee (which I learned from the Senate Judiciary website).  This meant that my nomination could proceed to the Senate floor for a vote.  I was given very little information about when the floor vote might happen, if at all.  In my case, the votes for the group of judicial and other presidential nominees in which I was included took place on December 16, 2014, right before the Senate recessed for the year, and in literally the last series of votes before the recess. This was fortuitous given the less hospitable make-up of the new Senate for presidential nominees; I was aware that it was at least possible that my nomination might never be brought forward for a vote if it did not occur before the recess.  I did not know the vote was going to happen beforehand, but I did know it was likely the last night of the session.  I was able to watch the vote only because I had the television set turned on to CSPAN.  Hearing my name called for a Senate vote was one of the other very big thrills of the process.

Once a nomination is voted on by the Senate, the President has to sign your commission which generally takes no more than a couple of days.  At that point you are IN! I took a few weeks to wind up my practice.  I was officially sworn in January 2015 (almost exactly a year after I submitted my application) and then had a more public ceremonial swearing in July – oddly enough a year to the day from my nomination.

Although that largely sums up my active participation in my nomination and confirmation, I am sure there were many machinations behind the scenes – not about me exactly, but more about the challenges of getting a large group of pending nominations (not just judicial) through the Senate as quickly and efficiently as possible.  I appreciated and was repeatedly impressed throughout the process with how generously and selflessly various people worked to make sure that my nomination and confirmation continued to move forward, and I remain grateful for their encouragement and support.

Now that I am on the bench, I continue to feel very honored and lucky to have this job.  I spend a lot of time thinking about how to do it right – in terms of correctly applying law to facts, but also in making sure that I treat litigants and their lawyers with respect and in trying to ensure that people, win or lose, feel like they were heard and their views fairly considered.  A few other random thoughts:

I think about I Love Lucy, even if fleetingly, almost every day. This job is so much like the bon bons on the conveyor belt episode. The paper just keeps coming. For those of you (like my law clerk) too young to understand what I just said – find the episode.  It’s a classic.

As a judge, I have repeatedly offered young associates in court the opportunity to make a brief argument on a motion once the lead attorneys have finished their presentations. Not once has anyone taken me up on this offer.  I suspect that is because the young attorneys are wary of partner or client response. I will keep making the offer and hope that litigants will see it as an opportunity to make their points one more time, rather than as a potential pitfall for the young and unwary.  Just as I would like to see more young lawyers with speaking roles, I have also been struck by the relative paucity of female litigators and would similarly like to see more women in court.

I am aware that the women on the bench, particularly the few of us with younger children, are, to some extent, role models for other women and that we may have a unique perspective on some of the challenges facing women in the legal profession.  I have been experimenting with a 10-4 trial day instead of the more usual 9-1, thinking that this might benefit parents who do school drop off, as well as resulting in fewer trial days for the jurors.  I am also finding that as a judge, rather than a partner in a law firm with client and practice development responsibilities, I have much better control of my schedule (except for those times when I have no control over it at all).  As a result, I am more likely to make it home for dinner with my family.  That being said, the volume of work is huge and unrelenting and I almost always work for several more hour later in the evening.

Finally, for those who have asked, yes, some people treat me differently. Most people treat me the same, which I appreciate.  That being said, the job has required me to give significant thought to personal relationships.   All of the other judges have been incredibly welcoming and generous with their time and advice, but there is the adjustment of thinking of them as peers and the resulting reordering of my prior relationships with many of them.  Similarly, many legal conflicts are easily identified and resolved, but determinations about the appearance of unfairness based on personal and past professional interactions can be much more nuanced.   I believe that a judge should remain a part of the legal community, but there are challenges in maintaining those connections without compromising confidence in the fairness of the process.   I pay a great deal of attention to this obligation, and am becoming more comfortable with the balancing as time goes on.

Judge Burroughs was sworn in as a United States District Court Judge for the District of Massachusetts in January 2015.  Prior to joining the bench, she was a partner in the Boston law firm of Nutter McClennen & Fish.  Before entering private practice, she served for sixteen years as an Assistant United States Attorney in Boston and Philadelphia.  


The Impact of Recent Revisions of the Massachusetts Rules of Professional Conduct on Confidentiality

Newhouse_MartinWoolf_Jeffreyby Martin J. Newhouse and Jeffrey D. Woolf

Heads Up 

The recent revisions by the Massachusetts Supreme Judicial Court (SJC) to the Massachusetts Rules of Professional Conduct effective July 1, 2015 included numerous changes to the rules governing confidentiality of client information, including substantial revisions of rule 1.6 (“Confidentiality of Information”).  The changes, as addressed herein, generally clarify a lawyer’s obligations under the Rules and also offer more helpful guidance on several points than was previously provided.

Rule 1.6:

  • The scope of information covered remains unchanged.  The SJC maintained a major difference between the Massachusetts and the ABA Model Rules, namely by continuing to limit the information covered by rule 1.6 only to “confidential information relating to the representation.”  (The ABA Model Rule covers all “information relating to the representation.”)
  • A clearer definition provided for “confidential information.”  In a very helpful step, the SJC also provided new comments, [3A] and [3B], clarifying what constitutes “confidential information.”  Comment [3A] defines confidential information as information relating to the representation of a client, whatever its source, that is (a) privileged; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) is information the lawyer has agreed to keep confidential.  Comment [3A] also provides a road map of what types of information would not be “confidential” under the rule.  Comment [3B] further explains the limitation of the rule to “confidential information” and explains how this change has been carried out throughout the Massachusetts Rules of Professional Conduct.
  • Expanding protection of non-confidential information.  In an interesting addition, the SJC warns in comment [4] that the prohibition against disclosing confidential information also prohibits any disclosure of information, while not itself protected under rule 1.6, that “could reasonably lead to the discovery of [protected] information by a third person.”  Included in this are hypotheticals that may lead others to “ascertain the identity of the client or the situation involved.”
  • Enlarging the scope of permissible disclosures. Most notably, the SJC has added two new exceptions to rule 1.6(b).  Rule 1.6(b)(4) expressly permits disclosure “to secure legal advice about the lawyer’s compliance with these Rules.”  Rule 1.8(b)(7) permits limited disclosure “to detect and resolve conflicts” when lawyers change employment or firm ownership changes.  In addition, the new rule 1.6(b)(3), along with revisions to rule 1.6(b)(1) and (2), clarify prior existing exceptions.  Significantly, rule 1.6(b)(1) continues to contain a provision, absent from the Model Rules, which authorizes the disclosure of confidential information “to prevent the wrongful execution or incarceration of another.”  Rule 1.6(b)(2) also continues the prior Massachusetts provision that permits disclosure to “prevent the commission of a criminal or fraudulent act,” without limiting this exception to conduct committed by “the client,” as exists under Model Rule 1.6(b)(2).  Thus the Massachusetts rule permits disclosure to prevent the commission of a crime or fraudulent conduct by a third person.  Also unlike Model Rule 1.6(b)(2), the Massachusetts rule does not require that the lawyer’s services must have been used in furtherance of the crime or fraud in order for disclosure to be permitted.  Permissive disclosure under rule 1.6(b)(2) is also not limited, as previously and under the Model Rules, to preventing conduct likely to cause substantial damage to property and financial interests of another; new rule 1.6(b)(2) additionally permits disclosure where substantial damage is likely to “other significant interests” of another.
  • Enhanced guidance with regard to disclosure exceptions. Comments [5] et seq. have been revised or wholly rewritten to provide more detailed and much needed guidance for lawyers seeking to understand whether disclosure is permitted or required.  For example, comment [12] discusses disclosure that may be required by other law; comment [15] provides guidance on dealing with a court order requiring disclosure; comments [13] and [14] deal in detail with the disclosures when lawyers change employment or firms change ownership.  Finally, comment [17] provides important guidance on how lawyers should exercise their discretion when an exception under rule 1.6(b) authorizes discretionary disclosure.
  • Addition of Rule 1.6(c). This new subsection requires lawyers to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or access to, confidential information protected under the rule.  New comments [18] and [19] provide, inter alia, that unauthorized access to or disclosure of confidential information “does not constitute a violation of paragraph [1.6](c) if the lawyer has made reasonable efforts to prevent the access or disclosure.” The comments discuss the factors to be considered as to whether reasonable efforts have been made.  Comment [18] cross-references comments [3] and [4] to rule 5.3 with regard to the sharing of information with non-lawyers outside the lawyer’s firm (e.g., an outside document management company).  Comments [18] and [19] confirm an attorney’s obligation to comply with all applicable state and federal privacy laws.  (Practice tip: be aware of your obligations under Mass. G.L. c. 93H (the Massachusetts security breach notification law) and the corresponding regulations, 201 CMR § 17.00 et seq.).

Rule 1.8(b) and 1.9(c)(1):

Although in a number of respects, the SJC’s revisions to the Massachusetts Rules of Professional Conduct have brought our rules into closer conformity with the ABA Model Rules, they have also preserved important distinctions.  As discussed above, the SJC retained our narrower definition of the scope of information covered by rule 1.6.

Similarly, while both rules 1.8(b) and 1.9(c)(1) parallel the ABA Model Rules in prohibiting the use of confidential information relating to the representation to the disadvantage of the client or, in the case of rule 1.9(c)(1), the former client, the SJC has retained in each rule the prohibition against using such information for the benefit of a third party or for the lawyer’s own benefit.  Under rule 1.8(b) such information may be so used if the client gives informed consent or such use is permitted or required by the rules.  Under rule 1.9(c)(1), such use is only allowed if permitted or required under rules 1.6, 3.3, or 4.1 with respect to the former client.  Rule 1.9(c) applies not only to a lawyer who has formerly represented a client in a matter but also if the lawyer’s present or former firm has formerly represented the client in a matter.

New Rule 1.18:

On the other hand, the SJC has not hesitated to adopt aspects of the ABA Model Rules that fill gaps in or represent improvements to the Massachusetts ethics rules.  One such example is the SJC’s adoption of Model Rule 1.18, which defines the duties owed to prospective clients.  The new rule makes it an ethical violation for a lawyer to engage in conduct for which the lawyer  would previously have been liable in tort for violating confidentiality obligations to a prospective client:

  • Under rule 1.18(b), even when no client-lawyer relationship is formed with the prospective client, a lawyer may not use or disclose confidential information learned from the prospective client, except as rule 1.9 would permit in the case of a former client.
  • Under rule 1.18(c), a lawyer who has received confidential information from a prospective client may not take on a representation materially adverse to the prospective client in the same or substantially related matter if the confidential information received could be significantly harmful to the prospective client.  If a lawyer is disqualified under this sub-section, no lawyer in the lawyer’s firm may knowingly undertake or continue the representation adverse to the prospective client.
  • However, rule 1.18(d) provides that, even when the lawyer has received disqualifying information from the prospective client, representation in the adverse matter is permitted if (1) both the affected and the prospective client give written informed consent or the lawyer who received the information took reasonable precautions to limit the information from the prospective client and is timely screened, as defined in rule 1.10(e), and the prospective client is promptly given written notice.

 Rule 1.0 (former Rule 9.1):

“Definitions” in the Massachusetts Rules of Professional Conduct used to be found in rule 9.1.  Consistent with the ABA Model Rules, this has been renamed as “Terminology” and renumbered as rule 1.0.  Three new definitions (and corresponding commentary) have been added:  “informed consent”; “confirmed in writing”; and “writing” (or “written”).  The new Massachusetts definitions are largely consistent with the ABA Model Rules.

New Rule 4.4(b):

The SJC also has added rule 4.4(b), which is identical to the corresponding ABA Model Rule, and for the first time addresses a lawyer’s obligation upon receipt of documents or electronic information that was inadvertently sent by opposing lawyers or parties.  Rule 4.4(b) requires a lawyer receiving such documents or information to notify the sender promptly, in order that (as stated in comment [2]) the sender may take protective measures.  Comments [2] and [3] provide a good discussion of the problem the rule addresses.  Importantly, comment [2] brings metadata in electronic documents within the purview of rule 4.4(b) “only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”   Comment [3] recognizes a lawyer’s professional discretion to return or delete such documents unread where the law does not require other action.

In conclusion, the reader is directed to the “Report of the Standing Advisory Committee on the Adoption of Revised Rules of Professional Conduct Effective July 1, 2015,” for a further discussion of these and other changes.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.

Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.


Seeking Justice for the Erroneously Convicted: Assessing the First Decade of Compensation Claims under Chapter 258D

Hartnagel_Davidby David Hartnagel

Legal Analysis

By the late 1990s and early 2000s, due to increased use of DNA and other scientific evidence, and further scrutiny of eyewitness identification, the number of criminal exonerations in both Massachusetts and the nation grew significantly.  As of 2002, over 100 prisoners nationwide were found to be innocent and released after additional scientific testing of evidence; and between 1997 and 2002, six men in Massachusetts were exonerated after new DNA testing proved they were innocent of the crimes for which they had been convicted.[i]  As attention on wrongful convictions increased, so did interest in providing exonerated individuals with a means to seek relief redress for time served, erroneously, in prison.  As a result, in late 2004, Massachusetts enacted Chapter 258D.  See St. 2004, c. 444; G.L. c. 258D.

This legislation was intended, in part, to meet the Commonwealth’s “moral obligation” to compensate those who had been erroneously convicted.[ii]  Before Chapter 258D was enacted, Massachusetts had compensated only two exonerated men over the prior half-century, both by special legislative action.  In 1958, Santos Rodriguez, who had spent over two years in prison for allegedly killing a woman, received $12,500 after the true killer confessed.  Similarly, in 1992, Bobby Joe Leaster, who had served 15 years of a life sentence for murder, received a $500,000 annuity when new eyewitness testimony exonerated him.[iii]  In contrast, since the enactment of Chapter 258D, approximately 50 people have sought relief, resulting in the Commonwealth paying over $9 million to nearly two dozen individuals whose convictions had been overturned.

This article examines Chapter 258D’s key provisions and looks back at its first decade, analyzing how well the Act has worked in compensating those who were erroneously convicted, and proposing changes to make the Act more effective.

I. Key Provisions of the Erroneous Conviction Statute
A. To Seek Compensation, a Claimant Must First Be Eligible

Chapter 258D sets forth strict threshold criteria for an individual even to be considered eligible for compensation.  A person must have been convicted of a felony and sentenced to not less than one year in a state prison – and served all or part of that sentence.  G.L. c. 258D, § 1(C).  In addition, the individual must have either received a pardon from the Governor or been granted judicial relief by a state court “on grounds which tend to establish the innocence of the individual.”  G.L. c. 258D, § 1(B).[iv]  The term “tend to establish” was offered by then-Governor Romney to “limit[] the class of claimants to those who received judicial relief on grounds that directly implicate innocence.”  Guzman v. Commonwealth, 458 Mass. 354, 358-59 (2010).  The phrase has been further interpreted to mean “grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime.”  Id. at 362 (internal citations and quotations omitted).  But such grounds must tend to do more than merely “assist the defendant’s chances of acquittal.”  Id. at 360.[v]

In the first appellate decisions interpreting the statute, Guzman and Drumgold v. Commonwealth, 458 Mass. 367 (2010), the claimants’ underlying convictions were overturned on grounds that undoubtedly tended to establish their innocence.  In Guzman, the claimant’s defense attorney failed to call two eyewitnesses who would have testified that the claimant was not the person who committed the crime.  458 Mass. at 363-65.  In Drumgold, the Commonwealth failed to disclose exculpatory evidence concerning promises and rewards made to a prosecution witness and newly discovered evidence relating to the credibility of a critical eyewitness.  458 Mass. at 372-76.

More recently, though, courts have considered factual scenarios that are less clear cut, such as where claimants’ convictions were reversed simply due to insufficient evidence.  In the first instance, Renaud v. Commonwealth, 471 Mass. 315 (2015), the Court agreed with the Commonwealth that convictions reversed for insufficient evidence do not “categorically” equate to actual innocence, but the Court concluded that the absence of certain types of evidence may nonetheless tend to show actual innocence.  Id. at 319.  Courts must therefore “follow a case-specific, fact-based approach to determine whether judicial relief based on insufficient evidence tends to establish actual innocence in any given case.”  Santana v. Commonwealth, 88 Mass. App. Ct. 553, 555 (2015).  As it turned out, the courts in Renaud, Santana, and Nguyen v. Commonwealth, 88 Mass. App. Ct. 1111, 2015 WL 6680985 (Nov. 2, 2015) (Rule 1:28 opinion) all held that the claimants were eligible under Chapter 258D.  See Renaud, 471 Mass. at 317 (larceny convictions reversed where the evidence consisted largely of only an EBT card bearing the claimant’s name at the crime scene); Santana, 88 Mass. App. Ct. at 555 (drug conviction reversed because the only evidence of constructive possession was claimant’s presence as a passenger in the car where the drugs were discovered); Commonwealth v. Nguyen, 76 Mass. App. Ct. 1137, 2010 WL 2268933, at *3 (June 28, 2010) (Rule 1:28 opinion) (gun conviction reversed because of insufficient evidence that claimant had knowledge that the firearm was in the vehicle where it was found).  As a result, the more recent appellate trend in these types of cases has been to hold in favor of claimants’ eligibility.

B. To Receive Compensation, a Claimant Has the Burden To Prove His Actual Innocence

If a claimant meets the eligibility requirements, he will face a trial at which he must, by clear and convincing evidence, prove that he did not commit the crime for which he was originally charged, or any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser-included felony.  G.L. c. 258D, § 1(C)(vi).

Chapter 258D, however, also recognizes that an erroneous conviction trial may take place years after the underlying crime occurred.  Evidence and testimony may have been lost, forgotten, damaged, or destroyed, all through no fault of any party.  Thus, Chapter 258D  provides that a court “shall exercise” its discretion “when determining the admissibility and weight of evidence” by considering:  “any difficulties of proof caused by the passage of time, the death or unavailability or witnesses, or other factors not caused by the claimant, or those acting on the claimant’s or the commonwealth’s behalf.”  Id. § 1(F).  Moreover, “[t]he court shall instruct the jury that it may consider the[se] same factors when it weighs the evidence presented at trial.”  Id.  Chapter 258D thus balances the need for the parties to provide the factfinder with as much evidence concerning the allegations and defenses, while acknowledging the limitations on the reliability of such evidence.

C. Types of Relief Available Under Chapter 258D

A successful claimant can receive four potential types of relief:  (1) $500,000[vi]; (2) 50 percent tuition reduction from any public university or college in Massachusetts; (3) services to address physical and emotional deficiencies related to one’s conviction and incarceration; and (4) expungement or sealing of records.  G.L. c. 258D, §§ 5, 7.  However, one who settles with the Commonwealth, where no judgment is entered in his favor, is ineligible to seek expungement or sealing.  See Memo. of Decision and Order, Commonwealth v. Baran, Civil Action No. SUCV2010-00034 (Mass. Super. Dec. 12, 2013).  In addition, a claimant is barred from recovering punitive damages, interest, costs, or attorney’s fees.  See G.L. c. 258D, § 5(A).

II. Actions Under the Erroneous Conviction Statute

Approximately 50 actions have been filed under Chapter 258D and the vast majority have proceeded along one of two paths:  settlement or dismissal due to ineligibility.  The initial cases largely concerned convictions that had been reversed well before 2004[vii] because of scientific testing, perjured or manufactured evidence, or faulty eyewitness testimony.  Due to the uncontroverted evidence of innocence, those cases often ended in settlements at or near the maximum amount of monetary relief.[viii]  The Commonwealth has settled approximately half of all Chapter 258D cases for over $9 million, which cases (except for one) were filed in the statute’s first five years.  After 2010, the Commonwealth has settled few cases and none recently.  Many of the remaining closed cases were often dismissed as the claimants were ineligible, i.e. their convictions were reversed on grounds that did not tend to establish their innocence, their claims were untimely, or they did not otherwise satisfy the statute’s requirements.

Just three cases have gone to trial, and only one – brought by Ulysses Charles – ended with a verdict for the claimant.  But this figure will likely increase in the near future:  as of this article’s publication, around a half dozen cases are pending before the Superior Court and at least two others are pending appeal (with respect to claimants’ eligibility).  Also, a number of these actions, such as Renaud, Santana, and Nguyen, are unlikely to settle.  These cases are largely based on convictions that were reversed due to insufficient evidence, as opposed to newly discovered affirmative evidence of innocence such as DNA evidence, recanted testimony, or police misconduct.  Similar circumstances existed in the two other Chapter 258D actions that went to trial, which ended with verdicts in favor of the Commonwealth.  Ultimately, with the presently pending Chapter 258D cases, the Commonwealth will likely be more inclined to take its chances at trial (with the attendant cap on damages and unavailability of interest and fees) than settle beforehand, in light of the claimants’ high burden at trial and the lack of clear exonerating evidence.

III. Challenges to Fulfilling Chapter 258D’s Goals, and Potential Solutions

With just over a decade’s worth of experience with Chapter 258D, some challenges to its efficacy have come to light.  Certain changes, some small in nature, could greatly improve its workability and help achieve its purpose more fully.

A. Chapter 258D Actions Proceed Slowly, Preventing an Erroneously Convicted Individual From Receiving Timely, Effective Compensation
1. Chapter 258D Actions Are Assigned to the Slowest Schedule in the Superior Court

Because of the pace at which Chapter 258D actions proceed, they place an unnecessary burden on claimants.  This is particularly so when one considers that claimants’ cases typically involve considerable investigation and discovery well before any Chapter 258D action is even contemplated.  One reason for the slow pace is that Chapter 258D actions, as actions against the Commonwealth, are assigned to the most deliberate schedule, Track A, under current Superior Court Standing Orders.  Track A provides for two years of discovery, and targeted resolution in three years.  See Superior Court Standing Order 1-88.

As one example, Bernard Baran served approximately 20 years in prison before his conviction was reversed.  Commonwealth v. Baran, 74 Mass. App. Ct. 256 (2009).  By the time Baran filed his Chapter 258D action in 2010, at least a half dozen substantive and evidentiary proceedings had occurred over the prior two decades.  Yet, Baran was forced to proceed via Track A.  Ultimately, Baran settled for less than the statutory cap in 2012, instead of waiting – possibly even years longer – for greater compensation and a potential judgment of innocence.

Even where claimants had claims that would otherwise exceed $500,000 in damages, if not for the Chapter 258D cap, due to lengthy incarcerations, and presented uncontroverted evidence of innocence, they have at times faced long delays before receiving compensation.  Stephan Cowans, Angel Hernandez, Dennis Maher, Neil Miller, Marvin Mitchell, Anthony Powell, and Eric Sarsfield all had convictions reversed as a result of scientific evidence,[ix] yet each waited from seven months to almost two years after filing their Chapter 258D complaints before settling for the maximum amount of compensation under the statute.

These delays are contrary to the statute’s purpose, particularly when a conviction is reversed as a result of uncontroverted scientific evidence and the claimant’s innocence should not be in question.[x]  As a result, Standing Order 1-88 should be amended to allow for Chapter 258D cases to be brought under an accelerated schedule.  In the alternative, Chapter 258D should be amended to provide a right to a speedy trial, akin to other civil matters.[xi]  Another possible solution is mandatory mediation between a claimant and the Commonwealth in cases where convictions are overturned on the basis of uncontroverted scientific evidence.  This final idea finds further support in light of the newly-enacted Chapter 278A, which provides for post-conviction access to DNA testing for convicted individuals asserting their innocence.  G.L. c. 278A, et seq.

2. The Commonwealth’s Right to Interlocutory Appeal of Eligibility Determinations

Another cause of significant delay in Chapter 258D actions is the Commonwealth’s right to interlocutory appeal of an adverse decision on the issue of a claimant’s eligibility.  The Commonwealth may pursue such an interlocutory appeal pursuant to the doctrine of present execution because Chapter 258D represents a limited waiver of sovereign immunity.  See Irwin v. Commonwealth, 465 Mass. 834, 842 (2013).  The claimant is then faced with a difficult choice:  (a) stay discovery, preserve resources, and wait for a potentially lengthy appeal period to be completed or (b) proceed with discovery, incur expenses, and impose on the claimant’s time and mental health, while running the risk of losing the appeal on the threshold issue of eligibility.[xii]

One possible solution is for the Appeals Court to alter its internal practices, prioritizing Chapter 258D actions when the issue is one of a claimant’s eligibility.  The Appeals Court regularly expedites cases involving custody and adoption issues concerning children; the same could be done for Chapter 258D erroneous conviction claims.  An alternative would be to amend Chapter 258D to impose a fee-shifting measure for any unsuccessful appeal by the Commonwealth on the issue of eligibility.

B. The Statutory Cap on Monetary Relief Prevents Fair Compensation

After a decade in practice, the Chapter 258D damages cap of $500,000 should be increased or modified.  Simply put, an individual who was erroneously convicted and served months, years, or decades in prison is very likely to receive a damages award exponentially lower than one who alleges that the Commonwealth violated his civil rights or discriminated under Chapter 151B, as neither of those claims has a cap on damages.

When the statute was enacted in 2004, capping monetary damages at $500,000 was intended to limit the Commonwealth’s fiscal exposure.  This concern, however, is outweighed by the moral imperative of providing individuals the opportunity to be compensated for years lost in wrongful confinement.  In the initial years after Chapter 258D’s passage, the Commonwealth settled many claims with people exonerated long before the law’s enactment, resulting in millions of dollars of damages awards.  But since 2011, the Commonwealth has paid less than a million dollars in compensation under Chapter 258D to only a few exonerees, and nothing since 2013.

Modifying the damages cap would provide the Commonwealth, courts, and juries with the flexibility to compensate more fairly those individuals most deserving.  For example, Angel Hernandez served 13 years before being cleared through DNA evidence.  He ultimately received a maximum settlement under the statute; however, that amount equaled only around $38,000 for every year he should not have been in prison.

The Commonwealth need not forgo a cap – other jurisdictions with analogous compensation schemes have more flexible forms of relief, some providing limits based on years of incarceration.[xiii]  As a result, claimants could be entitled to a maximum amount of money for every year they erroneously served in prison, for example $100,000 per year, thereby providing greater compensation to those persons who have suffered the greater harm.

The enactment of Chapter 258D filled a critical void – it both acknowledged that mistakes are made in our criminal justice system and that the Commonwealth should compensate the victims of such errors.  After a decade in practice, however, Chapter 258D presents certain obstacles for erroneously convicted individuals to receive compensation for the years they were wrongfully imprisoned.  Consistent with the statute’s goal to address the Commonwealth’s moral obligation to these individuals, Chapter 258D should be amended to advance its original intent: fairly and efficiently compensating erroneously convicted individuals.

 

[i] Fisher, Stanley Z., Convictions of Innocent Persons in Massachusetts: An Overview, 12 B.U. Pub. Int. L.J. 1, 72 n.3 (2002).

[ii] See Testimony of Representative Patricia Jehlen (March 19, 2003), available at http://web.archive.org/web/20040807031601/http://www.patjehlen.org/2506testimony.html (last visited January 2, 2016).

[iii] Wisneski, Ashley H., “‘That’s Just Not Right’:  Monetary Compensation for the Wrongly Convicted in Massachusetts,” 88 Mass. L. Rev. 138, 139 & nn.20-21 (2004).

[iv] Such relief must have vacated or reversed the conviction and either the indictment or complaint was dismissed (or a nolle prosequi entered) or the individual was found not guilty if a new trial was conducted.  G.L. c. 258D, § 1(B)(ii).

[v] The Court in Guzman also provided a non-exhaustive list of procedural, evidentiary, and structural deficiencies that may serve as the basis for the reversal of a defendant’s conviction, but would not satisfy Chapter 258D’s eligibility provision in light of the Governor’s amendment: a violation of a defendant’s Sixth Amendment right to confrontation; a violation of a defendant’s Bruton rights; a prosecutor’s improper closing argument; and an erroneous disallowance of a defendant’s peremptory challenge.  Guzman, 458 Mass. at 358 n.6; see Silva-Santiago v. Commonwealth, 85 Mass. App. Ct. 906, 909 (2014); Riley v. Commonwealth, 82 Mass. App. Ct. 209, 215-16 (2012).

[vi] One concern of legislators prior to Chapter 258D’s enactment was the financial burden it might place on the Commonwealth.  In the end, the payment of the $500,000 annuity to Leaster in 1992 served as a guidepost for the maximum amount of recovery allowable under the statute.  See Note 3 (citing then-Representative Jehlen’s testimony before the House Committee on Public Safety (Mar. 15, 2001)); McCarthy, Brendan, “House passes wrongful conviction bill,” The Boston Globe (Oct. 23, 2003); G.L. c. 258D, § 5.

[vii] Individuals whose convictions had been overturned prior to 2004 had three years after the enactment of Chapter 258D to file suit.  2004 Mass. Acts c. 444, § 3.

[viii] This includes the settlements for, among others, Stephen Cowans, the Estate of Louis Greco, Angel Hernandez, Donnell Johnson, Dennis Maher, Neil Miller, Marvin Mitchell, Marlon Passley, Anthony Powell, Guy Randolph, and Eric Sarsfield.  See http://www.newenglandinnocence.org/category/exonerees/ (last visited January 2, 2016).

[ix] See Note 8.

[x] Certain legislative sponsors of the original statute anticipated that such cases would be handled promptly.  Then-Senator Diane Wilkerson said she “might understand [the Attorney General] scrutinizing a case involving a defendant who was wrongly convicted because of, say, a flawed police investigation” but questioned the delays in compensation for those who filed claims who “were exonerated because of airtight DNA evidence.”  Saltzman, Jonathan, “Reilly accused of funds delay for ex-inmates,” The Boston Globe (June 21, 2005).

[xi] See, e.g., G.L. c. 151B, § 9 (for unlawful discrimination); G.L. c. 231, § 59F (for parties age 65 or older).

[xii] The latter is what occurred in Irwin.  The Commonwealth appealed the denial of its motion to dismiss in August 2011; the claimant did not agree to a stay pending appeal; the parties engaged in full discovery for nearly two years; and in July 2013, the Supreme Judicial Court dismissed the case due to the claimant’s ineligibility.

[xiii] See, e.g., 28 U.S.C. § 2513(e); Ala. Code §29-2-159; Fla. Stat. § 961.06(e); Minn. Stat. § 611.365; N.C. Gen. Stat. § 148-84; Ohio Rev. Code Ann. § 2743.48(E)(2); Tex. Civ. Prac. & Rem. Code Ann. § 103.052; Vt. Stat. Ann. tit. 13, § 5574(b); Wash. Rev. Code § 4.100.060(1)(d)(5).

David Hartnagel is an attorney at Sheehan Phinney Bass + Green P.A. in Boston where he practices complex commercial and employment litigation for both business and individual clients.  Previously, as an Assistant Attorney General, he served as counsel on behalf of the Commonwealth in some of the cases cited in this article.