a low-dose prescription: criminal prosecution of o˜ -label ... · to educate its children after...

BostonBarJournalNovember/December �00�

A Publication of the Boston Bar Association

A Low-Dose Prescription: CriminalProsecution of O� -Label Drug Promotion

Single-Member Limited Liability Company Denied Charitable Exemption of Property

Criminal Practice in Suffolk Superior Court

Search and Seizure of Computers: Commonwealth v. McDermott

No Judicial Remedy Left Behind: Fulfi lling the Commonwealth’s Duty to Educate Its Children After McDuffy and Hancock

Making and Amending the Massachusetts Rules of Civil and Appellate Procedure

Joint Defense Agreements

A Low-Dose Prescription: CriminalProsecution of O� -Label Drug Promotion

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Boston Bar Journal • November/December 2007 1

Past Presidents

Members of the Council

Volume �1, Number � November/December 2007

Boston Bar Journal

Boston Bar JournalBonnie Sashin, EditorAaron J. K. Ostrow, Associate EditorCatherine F. Meeks, Cover Design

The Boston Bar Journal is published fi ve times a year by the Boston Bar Association at 16 Beacon Street, Boston, Massachusetts 02108. Tel. (617) 742-0615. Articles from the members of the Boston Bar Association are encouraged. Mail all correspondence to the Boston Bar Journal, 16 Beacon Street, Boston, MA 02108. Visit the Boston Bar Association at www.bostonbar.org. Articles appearing in the Boston Bar Journal represent the views of their authors and do not necessarily carry the endorsement of the Association. ©2007 Boston Bar Association. All rights reserved.

Advertising inquiries:Call (617) 778-1958.

Offi cers of the Boston Bar AssociationPresident, Anthony M. Doniger President-Elect, Kathy B. Weinman Vice President, John J. ReganTreasurer, John H. Chu Secretary, Deborah S. Birnbach

Mark M. ChristopherR.J. CinquegranaLisa M. Cukier Paul T. DacierLaurie FlynnLawrence M. FriedmanRandolph M. GioiaLisa C. Goodheart

Edward J. BarshakJoseph W. BartlettJohn G. BrooksR.J. CinquegranaJohn J. Curtin, Jr.Gene D. DahmenJohn P. Driscoll, Jr.Thomas E. Dwyer, Jr.Hugh R. Jones, Jr.Michael B. Keating

Joseph L. KociubesRenée M. LandersEdward P. LeibenspergerWilliam F. Looney, Jr.Joan A. LukeyHon. James P. Lynch, Jr.Hon. Sandra L. LynchJames J. MarcellinoHon. Margaret H. MarshallEdward I. Masterman

John A. PerkinsRudolph F. PierceJoel M. ReckRichard W. RenehanLauren Stiller RikleenMary K. RyanRichard A. SodenRaymond H. Young

Damon P. HartBrent L. HenryChristine HughesJulia HustonSandra L. JesseKimberly Y. JonesRobert H. KelleyNina J. Kimball

Grace H. LeeJames D. MastermanSamuel B. MoskowitzRebecca B. RansomVivian TsengCharles E. Walker, Jr.Mark J. Warner

Board of Editors Matthew C. BaltayManisha H. BhattHon. Thomas BillingsDeborah S. BirnbachLisa S. BurtonAndrew L. CohenMichael A. ColloraHon. William I. CowinHon. Judith FabricantDonald R. Frederico (Chair)Hon. Mark V. GreenJoseph HalpernMartin R. HealyJ. Allen HollandKimberly Y. JonesElizabeth Eunjoo KimAndrea Studley KnowlesPaul G. Lannon, Jr.Hon. Peter M. LauriatMichael K. LoucksJohn Loughnane Martha Ann MazzoneDavid A. McKayMark F. MurphyTimothy M. MurphyRegina S. RockefellerHon. Janet L. SandersVivian Tseng

ContentsPresident’s Page 2

BBJ Editorial Policy 3

DepartmentsHeads Up 4Single-Member Limited Liability Company Denied Charitable Exemption of PropertyBy Robert E. Cowden III

Voice of the Judiciary 6Criminal Practice in Suffolk Superior CourtBy Margaret R. Hinkle

Case Focus 8Search and Seizure of Computers: Commonwealth v. McDermottBy Jeanne Kempthorne

Legal Analysis 9No Judicial Remedy Left Behind: Fulfi lling the Commonwealth’s Duty to Educate Its Children After McDuffy and HancockBy Curtis B. Dooling and Maura M. Pelham

The Profession 13Making and Amending the Massachusetts Rules of Civil and Appellate ProcedureBy Christine P. Burak and Marc G. Perlin

Practice Tips 15Joint Defense AgreementsBy Peter M. Casey

Legal Analysis 17A Low-Dose Prescription: CriminalProsecution of Off-Label Drug PromotionBy Michele L. Adelman and Catherine N. Karuga

BBA Update 21BBF News 26Pro Bono Update 28

� Boston Bar Journal • November/December 2007

By Anthony Doniger

Déjà Vu All Over Again

President’s Page

When you step into the same shoes worn by eighty-five previous BBA Presidents,

looking back at what prior incumbents thought and wrote about proves educa-tional. To that end, I recently dredged up the President’s Pages written by my partner Ed Barshak over thirty years ago, from 1974-76 (presidents served two-year terms then). The exercise was a useful

one, insofar as it is a common human tendency to feel that the issues and problems we grapple with are new or different (otherwise, surely, they would have been solved previously); it is humbling to be reminded that in fact, they are not. Mindful that history does indeed repeat itself, we should not be surprised that we are today dealing with old problems, to which the need to respond remains vital.

In 1974, United States District Court Judge W. Arthur Garrity issued his now-famous busing decrees in the Boston School Desegregation case. These directly affected many Boston residents and in many quarters were met with violence and outrage. The Boston Bar Association responded in a number of ways, two most notable: first, it awarded Judge Garrity its Public Service Award. Said President Barshak in his October 1974 President’s Page: “the public reaction to his judicial decrees sucked the Judge into a political maelstrom. He was vilified as if he were a ward healer who had sold out to some alien enemy. His judicial act was distorted as a raw political thrust. Public understanding of the rule of law and of the rule of the courts was damaged and endangered…Besides recognizing the Judge for his many years of judicial effort, the award was a symbolic reminder that his decrees in the Boston school desegregation case embodied the rule of law.” The BBA also issued a widely disseminated pamphlet about the desegregation orders, to explain the complexities of enforcing constitutional rights and to enhance the public’s understand-ing of the orders and the role of the Court.

In another President’s Page (November, 1974) President Barshak took on the condition of the courts. Among other observations, he wrote: “The delivery of justice to litigants is sometimes a strange thing. The client tries a case to a judge who is sorely pressed to handle his work load without the secretaries, dictating equipment and other amenities com-monly found in laws offices.” Sound familiar? The perspective that the Commonwealth’s judges are too few in number, understaffed, under-equipped, and over worked has changed little since those days. Who among us would seriously argue that our court system today is adequately funded and staffed,

or that it is fully equipped to provide efficient access to justice to rich and poor alike? Ask yourself why it isn’t. At least in part, it is because of a failed recognition that there are few—if any—votes to be gained by generously supporting the judiciary.

The judiciary is undoubtedly the least understood branch of government, and the one with virtually no constituency. It is an easy target of vituperative and ill-informed reaction to what appear to be shocking orders, soft sentences, and unwar-ranted judicial activism. Witness the reaction to Judge Garrity’s busing decrees, the treatment of now Supreme Judicial Court Justice Margot Botsford at her recent confirma-tion hearing by certain Governors’ counselors, and the rap on the SJC’s recognition of same-sex marriage. Legislators and governors perceive that they will neither gain votes by increasing the judicial budget, nor lose popularity by vetoing judicial appropriations. This threatens the ability of our courts to function efficiently and to continue instituting and advanc-ing the reforms undertaken by the SJC and the office of the Chief Justice for Administration and Management, especially in the wake of the 2003 Monan Committee Report. A gover-nor—a long-time practicing lawyer all too familiar with the need to improve the efficiency of and access to the justice system—in his first budget, recently chose to single out the appropriation to the judiciary for his only substantial veto. This says a great deal about the calculation of whether there would be a substantial risk of a constituency revolt in the face of such cuts. While it is heartening that the judicial budget wound was healed by the Legislature this year, it is troubling to think that the guts of the ongoing court reform efforts begun a few years ago would have been torn out without this turnabout.

I am sorry to be tooting the same horn my partner blew thirty years ago, but we’re reading from the same sheet of music. We lawyers must do more to remind the public that the court system is a crucial part of the fabric of our society, central to the smooth and efficient functioning of our economy and vital to the protection of rights and liberties. There are effective strike forces of attorneys ready to respond publicly to unfounded criticism of individual judges by the press or the public. This is important, but it is only part of the solution. All of us, collectively and individually, need to make an effort to increase the public’s understanding of our judicial system’s importance and of the judiciary’s independence. In this way, our political leaders will perceive that there is a constituency—both in the business community and the community at large—that must be heeded when funding issues for the courts are considered.

Boston Bar Journal • November/December 2007 �

David A. McKayRopes & Gray LLP

Donald R. Frederico (Chair)Greenberg Traurig, LLP

Matthew C. Baltay Foley Hoag LLP

Manisha H. BhattGreater Boston Legal Services

Hon. Thomas Billings Massachusetts Superior Court

Andrea Studley KnowlesSugarman, Rogers, Barshak & Cohen, P.C.

Hon. Judith FabricantMassachusetts Superior Court

J. Allen Holland Lynch Brewer Hoffman & Fink, LLP

Mark F. MurphyWulsin Murphy LLP

Statement of Editorial PolicyThe Boston Bar Journal is the premier publication of the Boston Bar Association. We present timely information, analysis, and opinions to more than 10,000 lawyers in nearly every practice area. Our authors are attorneys, judges, and others interested in the development of the law. Our articles are practical. Our publication is a must-read for lawyers who value being well informed on important matters of legal interest. The Boston Bar Journal is governed by a volunteer Board of Editors dedicated to publish-ing outstanding articles that reflect their authors’ independent thought, and not necessarily the views of the Board.

N.B. Judges serving on the Board of Editors of the Boston Bar Journal do not participate in discussions about or otherwise con-tribute to articles regarding impending or pending cases.

Andrew L. Cohen Committee for Public Counsel Services

Board of Editors

Kimberly Y. JonesFoley Hoag LLP

Hon. William I. Cowin Massachusetts Appeals Court

John LoughnaneMcCarter & English, LLP

Vivian TsengWelch’s

Joseph HalpernBlue Cross and Blue Shield of MA

Regina S. Rockefeller Nixon Peabody LLP

Hon. Mark V. Green Massachusetts Appeals Court

Hon. Peter M. LauriatMassachusetts Superior Court

Lisa S. Burton Wilmer Cutler Pickering Hale and Dorr LLP

Paul G. LannonHolland & Knight LLP

Timothy M. MurphyBromberg & Sunstein LLP

Michael A. ColloraDwyer & Collora, LLP

Elizabeth Eunjoo Kim, McDermott Will & Emery LLP

Michael K. LoucksU.S. Attorney’s Office

Martha Ann MazzoneFidelity Investments FMR Corp

Hon. Janet SandersMassachusetts Superior Court

Madeleine Blake Greenberg Traurig, LLP

Martin R. Healy Goodwin Procter LLP


In March of this year, the Massachusetts Appellate Tax Board (“ATB”) held that as matter of law, property owned by a single-

member limited liability company (“SMLLC”) having a charitable corporation as its member did not qualify for property-tax exemption because the company was not “incorporated” as required by G.L. c. 59, §5, Third. CFM Buckley/North, LLC

v. Board of Assessors of the Town of Greenfield (and two related appeals), 2007 Mass. Tax LEXIS 16. If upheld by the Appeals Court, the ATB’s interpre-tation of Clause Third will effectively deprive charitable corporations of a useful vehicle for holding title to property.

BackgroundThe advent of Massachusetts limited liability

companies (“LLC”) in 1995 was bound to raise questions as to how they would be treated under existing law inhabited by corporations, trusts, partnerships and associations. That is especially so because G.L. c. 156C, §2(5) states that an LLC is an “unincorporated organization,” albeit one with limited liability and some other characteris-tics of a corporation.

A corporation (charitable or not) may wish to isolate a particular activity or property in a separate but controlled entity, due to liability concerns or third-party requirements. An SMLLC will be especially attractive because it can provide limited liability with (unless otherwise elected) “disregarded” status for federal corporate income and state corporate excise tax purposes. For a tax-

exempt parent, disregarded status brings exemp-tion for the SMLLC’s activities without the burdens of seeking and maintaining tax-exempt status for a separate entity. However, use of an SMLLC may have disadvantages under state statutes providing special benefits to charitable organizations.

The ATB DecisionClause Third of G.L. c. 59, §5 provides for

property-tax exemption only in the case of charitable organizations. A “charitable organiza-tion” is a “(1) literary, benevolent, charitable or scientific institution or temperance society incorporated in the Commonwealth, and (2)… [certain trusts]…” (emphasis added). (The requirement of a Massachusetts corporate domicile was declared unconstitutional in Mary C.

Wheeler School, Inc. v. Assessors of Seekonk, 368 Mass. 344 (1975).)

The ATB relied on the “unambiguous language” of Clause Third in concluding that property held by an LLC would not qualify for exemption because an LLC is not incorporated. The ATB also cited G.L. c. 156C, §2(5) and relied on RCN-

BecoCom, LLC v. Commissioner of Revenue, 443 Mass. 198, 206 (2005). There, the Supreme Judicial Court held that under G.L. c. 59, §5, Sixteenth, which provides exemption for certain property held by a corporate utility, an LLC was not a corporation and that, accordingly, exemption was not available.

Heads Up

Single-Member Limited Liability Company Denied Charitable Exemption for Property

By Robert E. Cowden III

Robert E. Cowden III is a partner in Casner & Edwards, LLP. A former Co-Chair of the Committee on Tax-Exempt Organizations, he concentrates his practice on the affairs of nonprofit organizations.


Case law under Clause Third establishes that an organiza-tion’s declared purposes and actual activities (but not organiza-tional form), will be controlling for purposes of exemption. H-C

Health Services, Inc. v. Assessors of South Hadley, 42 Mass. App. Ct. 596 (1997); Brown, Rudnick, Freed & Gesmer v. Assessors of

Boston, 389 Mass. 298 (1983). The ATB concluded, however, that those two cases involved corporations and thus did not support reading the term “incorporated” broadly to include an LLC. The ATB cited case law to the effect that Clause Third, as an exemption statute, is to be construed narrowly.

The ATB dismissed with little discussion a claim by the taxpayers that Clause Third antedated the introduction of LLCs in Massachusetts and therefore should not be read to deny exemption as a matter of legislative intent and a separate claim that property held by an SMLLC was effectively held in trust for the benefit of the parent charitable corporation for purposes of one branch of Clause Third.

CommentThe ATB’s decision and the RCN-BecoCom decision cited

above create concern in two other areas for charitable corpora-tions wishing to use an SMLLC. Section 85K of G.L. c. 231 provides a $20,000 limit on certain types of tort claims against a “corporation, trustees of a trust or members of an association.” It is not clear where an LLC, as an “unincorporated organiza-tion,” would fit for purposes of this formulation. Separately, G.L. c. 40A, §3, the so-called Dover Amendment providing exemp-tion from certain local zoning rules, refers to a “nonprofit educational corporation.”

The ATB’s interpretation of Clause Third will no doubt chill the use of SMLLCs by charitable corporations. If upheld, it should be corrected legislatively; permitting a charitable parent corporation to hold property in an SMLLC need not change the scope of exemption already available.

We congratulate our friend and partner

Anthony M. Doniger

as he begins his term as President of the Boston Bar Association.

Recognizing a leader

Honoring a friend

w w w . s r b c . c o m


T wo significant developments have occurred in Suffolk Superior Court criminal practice in the last three years.

The first is the successful implementation of time standards. The second, although unrelated, is an increase in the frequency of mistrials. My brief commentary summarizes the effect of time standards in Suffolk County and then suggests techniques that might reduce the number of mistrials.

After extensively consulting prosecutors, defense counsel, clerks and the law enforcement community, the Superior Court implemented criminal time standards in September, 2004. Suffolk County’s pending criminal caseload has since decreased by 57 percent. The number of trials has increased by 37 percent (224 in 2006 from only 164 in 2003). The number of cases older than one year has declined by 81 percent (from 719 in 2003 to 140 at the end of 2006). These extraordinary results are largely due to the willingness of the prosecution and defense counsel to adjust to dramatically new expectations.

This change is remarkable for two reasons. First, Suffolk County has a huge volume of homicide cases, approximately 13 percent of its total caseload. Homicide cases consume a disproportionate amount of court time. Homicide indictments almost always proceed to trial, and

the trials are usually longer and more complex than the average prosecution. In addition, Suffolk County jurors are in chronic short supply. The return rate in Suffolk County (the measure of how many citizens respond to their jury sum-mons) is approximately 23 percent, compared with twice that number in other counties.

Suffolk criminal sessions now include a dedicated session to coordinate time standards cases, a dedicated session to manage homicide cases, a dedicated suppression motion session, a traditional first session, a magistrate session and four trial sessions. Suffolk criminal practitioners now understand that a “trial date” means that the trial will take place at or near the target time, either six, nine, or twelve months from arraign-ment, depending on the complexity of the case.

One factor, however, presents special difficul-ties in Suffolk criminal cases: the increasing number of cases in which the jury is unable to reach a verdict, requiring a second trial. The number of mistrials has increased from only three in 2003 to 19 in 2006. With a jury impasse, not only do jurors feel a sense of incompleteness, but any mistrial imposes an enormous emotional and financial cost on the prosecution, the defense, the victim and the Commonwealth. No one suggests that this increase is due in any way to the implementation of time standards. In fact, no one has offered a plausible explanation for the

Voice of the Judiciary

By Judge Margaret R. Hinkle

Criminal Practice In Suffolk Superior Court

Margaret R. Hinkle has been on the Superior Court since 1993. For the past three years, she has been the Regional Administrative Justice for Criminal Business in Suffolk County.


increasing number of mistrials. I suggest some techniques that might affect the ability of jurors to reach a verdict.

First, both prosecutors and defense counsel should give greater attention to expanded voir dire of the jury. After almost 15 years of talking with jurors post-verdict, I have come to see that an occasional juror should not have been selected for service. Sometimes a juror is patently unable to concentrate or reason; other times a juror has plainly prejudged the case; and sometimes a juror does not understand English well enough to participate meaningfully in deliberations.

Justice requires stronger advocacy for tailored judicial voir dire. Often, in response to a court invitation to modified voir dire examination, counsel respond, “Just the statutory ques-tions, judge,” or merely suggest the same voir dire questions they routinely submit. Certain areas are fertile for more thorough examination in criminal cases—attitudes toward law enforcement, gangs, firearms and drugs, to name a few. Juror attitudes on these issues affect large numbers of Suffolk County cases.

In 2006, the Jury Commissioner’s office revised and ex-panded the standard confidential juror questionnaire. The present questionnaire provides a basis for additional voir dire examination, particularly about prior experience with the criminal justice system. Counsel should review each juror’s questionnaire carefully. If, for example, a prospective juror shows a sixth grade education, or a juror’s questionnaire manifests a material omission, counsel should request that the judge make further specific inquiry. Likewise, statement of a foreign birthplace may suggest lack of fluency in English, and employment answers may support case-oriented questioning.

Some judges routinely use written juror questionnaires tailored to the particular case. This is another method to provide further information to counsel about a juror’s back-ground and opinions. Written questionnaires may be particu-larly useful in cases where a juror may find it less embarrassing to write than speak, as in sexual abuse cases.

With expanded judicial voir dire, both the prosecution and the defense stand to gain by a more intelligent use of peremp-tory challenges. Commonwealth v. Soares and its progeny restrict challenges based on certain group classifications. Despite these cases, it is no secret among the bench or the bar that stereotyping exists in exercise of peremptory challenges. I urge counsel to examine such attitudes as the assumption that

all women have common attitudes towards those accused of rape, or that all jurors of a particular age or occupation are likely to think the same.

Another factor that may influence jurors’ ability to reach a verdict is the phenomenon sometimes called the “CSI effect.” Jurors who regularly watch television shows such as “Law & Order” or “CSI” are conditioned to expect sophisticated forensic evidence in criminal cases, pithy examination of witnesses, and lawyers who never stumble or mumble. Of course, an actor delivering scripted lines will present a more audience-worthy portrayal than any real-life lawyer. I am not suggesting that every prosecutor should seek to emulate Jack McCoy or every defense counsel Perry Mason. Still, it is worth remembering that these are the images many jurors bring to our courtrooms. Jurors should not be entertained in our courtrooms, but an effective advocate cannot ignore or talk down to jurors, whatever the composition of the jury. Never underestimate jurors’ intelligence, wisdom and common sense, and always bear in mind that jurors sacrifice their personal and professional lives for jury service.


As personal computers have become common-place household appliances, the courts have grappled with the practical considerations of

searching and seizing evidence stored on them. With so much information about our lives stored on home computers, the police are motivated in almost every variety of criminal case to search through the suspect’s computer, thereby gaining access to vast realms of unrelated private information.

How to fetter computer searches to preserve the privacy of information outside the scope of the warrant while at the same time allowing the police to search computer files effectively is a problem that the Supreme Judicial Court tackled in Commonwealth v. McDermott, 448 Mass. 750, decided in April. In McDermott, the Court announced rules which entrust the police and forensic examiners with great discre-tion and latitude to search for evidence in computers as they see fit.

After a shooting rampage at McDermott’s work-place in Wakefield which left seven of his co-workers dead, the police obtained a search warrant to look for, among other things, “documents reflecting the mental state and mental functioning of the defen-dant….” Among the items the police seized were five computers as well as computer disks. The warrant had not authorized the police to search for or to seize a computer. After transferring the computers and disks to a forensic laboratory, the police obtained a second warrant to search through the computers and disks for several categories of information, including the defendant’s mental state and functioning and his treatment for mental diseases or defects. The police did not describe how they proposed to conduct the search of the electronic data.

McDermott challenged the search of his apartment on numerous grounds, all of which were rejected by the SJC. McDermott also complained that the warrant had not specifically authorized the police to search for or seize the computers, that there was no probable cause to search for records related to his mental state, that the warrant’s description of such documents was insufficiently particular, and that probable cause is required for the search of each file.

Justice Greaney, writing for the Court, found that the warrant’s description of the mental state docu-ments was sufficiently particular even though the second warrant was unlimited in time. Endorsing the analogy made by the motion judge (R. Malcolm Graham, J.) of the seizure of a computer to the seizure of a container, the Court sanctioned the

removal of the computers from the premises for the purpose of a more leisurely off-site search without a showing that removal from the premises was appropriate or necessary. Moreover, the Court hinted that the police need not have even bothered to obtain a second warrant so long as the search is limited to the items identified in the first warrant.

The Court ruled that the police need not present a plan to limit or tailor the scope of the search to the issuing magistrate — even when the district attor-ney’s office has formulated one. Instead, the Court declared that forensic examiners have to be afforded

“considerable discretion…regarding how best to proceed with the search” and that advance approval of a search protocol is not necessary. There need not be probable cause to look in every file; rather, a “cursory examination” of stored files is permissible, as long as at the end of the day, the number of files printed out is “reasonable” compared to the total number of files stored on the media. In short, the Court deemed the 750-file output of a 250-word keyword search to be reasonable.

Finally, the Court in dicta announced that evidence the officers come upon in the course of conducting a lawful search may be seized under the plain view exception, thus signaling that the Court may not be receptive to a suggestion that, in the future, the plain view doctrine may need to be curtailed in the context of electronic searches. See Kerr, Orin S., Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005).

The Court did not address the important question of how long the police may take to conduct its off-site search of the computer and whether the computer itself must be returned once a digital copy of the drive is made.

In McDermott, the Court has afforded the police wide latitude to obtain electronic evidence. Whether the Court has struck the balance too far toward police discretion and too far away from privacy rights will become clear when the courts review searches that reveal evidence of entirely unrelated criminal activity or that deprive a person use of an essential household appliance for months on end.

Search and Seizure of Computers: Commonwealth v. McDermott, 448 Mass. 750 (2007)

By Jeanne Kempthorne

Jeanne Kempthorne is in private practice, representing de-fendants primarily in post-conviction proceedings. From 1992 to 2003, she was a fed-eral prosecutor in Boston, specializ-ing in white collar and computer crime. She has served as co-chair of the Boston Bar Association’s Criminal Law Section and was a member of the BBA Council and the Boston Bar Journal’s Board of Editors.

Case Focus provides a timely, in depth, expert review of a new decision — federal, state, administrative — of particular importance, or practice area specific. The analysis focuses on the impact on prior case law or statutory interpretation, the complexities/gray areas of the opinion and what practitioners need to know about the effect the opinion has on their practice.

Case Focus


Legal Analysis

Introduction

In McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545 (1993), the Su-

preme Judicial Court clearly identified the Commonwealth’s duty to educate: “[T]he

Commonwealth has a duty to provide an education for all its children, rich and poor, in

every city and town of the Commonwealth at the public school level, and that this duty is de-

signed not only to serve the interests of the children, but, more fundamentally, to prepare

them to participate as free citizens of a free State to meet the needs and interests of a republican

government, namely the Commonwealth of Massachusetts.”1 The SJC, however, did not identify

a mechanism to finance that duty. Indeed, in the recent case of Hancock v. Commissioner of

Education, 443 Mass. 428 (2005), the SJC made it clear that the task of providing for and ensuring

adequate funding for Massachusetts public schools lies not with the Commonwealth’s courts,

but with the legislative and executive branches, and with the general public. As the fifteenth

anniversary of the McDuffy decision approaches, this article provides a look back at McDuffy,

an assessment of current circumstances and some suggestions for the future. Our intention

is to encourage members of the bar to be instrumental in developing a sustainable system of

financing public education.

The Litigation of Public Education Funding: A History of McDuffy and HancockPrior to the 1990s, public education financing in Massachusetts “was governed by a loosely

connected melange of statutes, local regulations, and informal policies.”2 While the Commonwealth mandated state aid for local public school education, its “statutory guidelines went largely un-heeded, leaving cities and towns at the mercy of unpredictable annual appropriations from the Legislature.”3 As a result, property-poor districts were affected the most because they lacked local revenue sources to educate their students. From McDuffy in 1993 to Hancock in 2005, plaintiffs sought solutions to the public education funding dilemma in the Commonwealth through litigation.

The problems addressed in McDuffy begin with the fact that public schools in the Commonwealth receive funding from three separate sources: local, state and federal governments. The local property tax is the main source of school funding. In fiscal year 2004, for example, local funding amounted to approximately 53.6% of total education funding, state aid amounted to 39.8% and federal aid made up the remainder. Yet municipalities face strict limits to raising revenue including the constraints of Proposition 2 ½.4

In the decade leading up to McDuffy, federal funds only accounted for approximately four to five percent of school funding and generally targeted specific programs, with some municipalities receiving no federal funds. In addition, the Massachusetts legislature appropriated state aid in an inconsistent manner. While a statutory formula, G. L. c. 70, was enacted in 1978 to allocate funding to municipalities and “reduce the reliance upon the local property tax in financing public schools,”5

By Curtis B.Dooling and Maura M. Pelham

No Judicial Remedy Left Behind:Fulfilling the Commonwealth’s Duty to Educate Its Children After McDuffy and Hancock

Maura M. Pelham is an as-sociate at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., where she practices in the Employment, Labor and Benefits Section.

Curtis B. Dooling is an associate at Boyle, Morrissey & Campo, P.C., where he prac-tices general civil litigation.

10 Boston Bar Journal • November/December 2007

the legislature essentially ignored the G.L. c. 70 funding formula and continued to allocate state aid to public schools through the annual budget appropriation process, leading to unpredictable results. As a result, municipalities could not depend on a minimum amount of state aid. Some municipalities received additional state assistance through various educational grant programs. But this funding also was unpredictable and exacerbated the disparity in the quality of public schools from one district to another.

Frustrated with this situation, in 1978, students from less affluent districts sought a judicial remedy for this disparity and sued the state in McDuffy. In 1985, a single justice of the SJC referred the case to a master with orders to make findings of fact and rulings of law. The litigation stalled again for approximately five years. In 1990, the McDuffy plaintiffs filed a restated complaint and a renewed motion for class certification. The SJC finally ruled on McDuffy in 1993, fifteen years after the suit was originally filed. In its decision, the SJC interpreted the Education Clause of the Massachusetts Constitution as imposing “an enforceable duty” on the Commonwealth to provide an education to its children “without regard to the fiscal capacity of the community or district in which [they] live.”6 The court also concluded that the Commonwealth was under a constitutional obligation to provide all public school students with an adequate education. Moreover, the court consid-ered whether the Massachusetts school financing system at the time was constitutional, and held that it was not.

Despite this holding, the court declined to find any statute regarding school funding unconstitutional and failed to suggest any specific requirements that would meet the state’s duty. Rather, the court “articulate[d] broad guidelines” concerning the capabili-ties that an educated child must have.7 That court held that an adequately educated child “must possess” sufficiency in the following capabilities: (1) oral and written communication skills; (2) knowledge of economic, social and political systems; (3) under-standing of governmental processes; (4) self-knowledge of his or her mental and physical wellness; (5) grounding in the arts; (6) advanced preparation in either academic or vocational fields so as to enable a child to choose and pursue a career; and (7) academic or vocational skills to enable a public school graduate to compete favorably within the job market.8 The court, however, left the details of implementation to the legislative and executive branches, concluding, “it is [their] responsibility…to take such steps as may be required in each instance effectively to devise a plan and sources of funds sufficient to meet the constitutional mandate.”9

Three days after the McDuffy decision, the legislature enacted and Governor Weld signed the Education Reform Act (ERA) of 1993. The ERA overhauled school funding in the Commonwealth and established new academic criteria for schools, teachers and students. The ERA radically restructured the state’s funding system for public education in the Commonwealth by establishing a foundation budget for each school district. The budget is based on a complex 32-step formula calculating how the cost of public education is to be divided between state aid and local contribution. The ERA also developed and implemented “curriculum frame-works” for public schools, which “present broad pedagogical approaches and strategies for assisting students in the develop-ment of the skills, competencies and knowledge called for by these standards.”10 The law also established a system of statewide standardized tests, known as MCAS, and strengthened teacher certification and professional development requirements. Most

importantly, the ERA increased the Commonwealth’s spending on education in an effort to minimize the gap between poor and wealthy districts. In the years since McDuffy, Massachusetts has allocated over $40 billion to education, and annual increases in state aid to cities and towns average approximately twelve percent.11 Despite this progress, students from poor school districts again sought a remedy to the school funding disparity through the court system, and returned to the SJC for relief in Hancock.

The SJC referred the matter to Judge Margot Botsford, then of the Superior Court, to reexamine the state’s progress since McDuffy to determine whether the Commonwealth had since met its constitutional mandate to educate its children. After a lengthy trial, Judge Botsford concluded that the state was not meeting its duty, and generated a comprehensive, well-articulated report detailing her findings and presenting recommendations to the SJC. The SJC, however, rejected Judge Botsford’s conclusions in a 5-2 plurality decision, and held that the Commonwealth currently was meeting its constitutional duty. The court recognized the significant progress made since McDuffy and applauded the legislature for demonstrating a commitment to improving the public school system. Chief Justice Marshall’s opinion and Justice Cowin’s concurring opinion both acknowledged that courts are not the appropriate vehicle to pursue educational policy goals, and left the responsibility to the elected branches. Indeed, Justice Cowin succinctly stated, “The plaintiffs’ remedy, as it always is with political questions, is at the ballot box.”12

The Future of Public Education Financing: The Commonwealth’s Options

As outlined above, the legislature has shown a commit-ment to increase education funding and to equalize student spending by setting a foundation budget from which to work. Despite the legislature’s attempts to improve the G.L. c. 70 funding formula and equalize district-to-district spending, municipalities still struggle to provide their share of the contribution sufficient to meet the foundation budget. Disparities still exist between property-rich communities and property-poor communities. A community with high property values and commensurate taxes continues to have the ability to spend more than its level of state aid on its public schools, whereas a community with lower property values is much more dependent on state aid, creating a disparity that will exist as long as property taxes remain the main source of education funding.

One proposal to eliminate this disparity is to create a dedicated funding source from which the Commonwealth can allocate funds to every municipality, thereby reducing reliance on the property tax and alleviating the uncertainty of state aid derived from the confusing and unpredictable annual budget appropriation process. Recently, the legisla-ture adopted this approach to solve another public school-related funding problem that created disparities between municipalities. In 2004, the Commonwealth overhauled the manner in which public schools are built and funded by creating the Massachusetts School Building Authority and dedicating one cent of the state sales tax to the School Modernization and Reconstruction Trust Fund.13 By creating

Boston Bar Journal • November/December 2007 11

a dedicated and sustainable revenue source, the Commonwealth eliminated the uncertainty that municipalities faced when applying and waiting for reimbursements from the state for new school construction.

This paradigm is not novel for the Commonwealth. Historically, the Commonwealth funded the Massachusetts Bay Transporta-tion Authority (MBTA) directly out of annual general revenues, subject to the vagaries of the annual legislative budget process. Like education and school building funding, MBTA funding through this process was inconsistent and sometimes insuf-ficient even to maintain existing services. In 1999, however, the legislature dedicated one cent of the state’s annual sales tax revenues to the MBTA, enabling it to operate on a dedicated and consistent revenue source.

Similarly, if a percentage of the sales tax were dedicated to a public school trust fund, cities and towns would be guaranteed a certain amount of funding not heavily dependent on the state’s coffers or the political gamesmanship prevalent in the budget appropriation process. In order to generate a sufficient amount of funding, the sales tax could be increased. Of course, any mention of raising taxes can create political turmoil. However, a dedicated grassroots effort to educate the residents of the Commonwealth on the advantages of a slight increase in the sales tax in an effort to eliminate the reliance on the local property tax could lead to a viable political solution. Both members of the legislature and their constituents may be willing to consider creating a dedicated state funding source for education in order to alleviate the pressure on local property taxes.

Michigan voters, facing many of the same problems currently facing Massachusetts schools, approved a ballot initiative in 1994 that overhauled the way in which its public schools were funded by increasing the state sales tax from 4% to 6% and dedicating the increased revenue to school aid.14 In addition, several other states are considering state constitu-tional amendments to ensure that certain education funding benchmarks are met. Both New Hampshire and Ohio, reacting to a wave of litigation, recently considered constitu-tional amendments to establish a minimum level of state spending on public education. In New Hampshire, Governor Lynch introduced an amendment guaranteeing each com-munity a minimum amount of state aid to ensure that every child receives an adequate education. Proponents believed that the amendment would have eliminated funding dispari-ties by guaranteeing a minimum amount of state aid to property-poor communities while opponents argued it still would place the onus of funding on municipalities, which can only generate revenue via the property tax. The New Hampshire legislature, however, rejected Governor Lynch’s constitutional amendment proposal in June 2007, and instead enacted legislation defining an adequate education in July 2007.

While the idea of a constitutional amendment may be attractive, an amendment may not be adequate where a sustainable, dedicated funding source is not identified. A constitutional amendment with language purporting to guarantee every child an adequate education is illusory if courts cannot or will not force the legislature to appropriate

sufficient funding. Moreover, even if courts attempt to force the legislature to appropriate a certain level of funding, the legisla-tive branch may be reluctant to succumb to judicial mandates or may not have sufficient funding sources to meet such mandates. Many states, including Massachusetts, are not permitted to spend money that they do not have in their treasury. Unlike the federal government, which can spend money on “credit” by borrowing and spending, the Commonwealth can only appropri-ate that which it receives in tax revenue.15

The solution to the education funding problem may lie elsewhere. Some suggest that privatization of public schools is the answer. In 2002, the City of Philadelphia implemented the largest experiment to date in the private management of public schools by privatizing forty-five public schools. Five years later, research has shown no measurable difference in student achievement between students educated in traditional public schools and those educated in the privately managed schools. Private management of public schools is a somewhat radical approach. The lack of clear success means that private manage-ment is highly unlikely to garner the political support that would be necessary for widespread adoption.

A somewhat more measured approach is the expansion of charter schools, which were created as a part of the ERA. Charter schools are public schools that operate independent of local school committees and the state’s Department of Education. Despite having vocal opponents, charter schools have been

1� Boston Bar Journal • November/December 2007

successful in the Commonwealth as evidenced by the long waiting lists to enroll children who choose charter schools over traditional public schools. However successful charter schools have been, they still operate on inconsistent and insufficient state aid. Moreover, charter school opponents argue that charter schools drain funding away from tradi-tional public schools and further exacer-bate the funding shortfall.

ConclusionThe SJC is not going to interject itself

into the public school financing debate by mandating funding or forcing the legisla-tive or executive branches to operate or fund public schools in a certain way. The general public and members of the bar must work with their elected officials to ensure that all of our public schools are properly funded and that our school-aged children receive the education they and the Commonwealth deserve. In helping to shape these solutions, lawyers will need to work outside the courtroom to put their advocacy and problem solving skills to work.

Endnotes1 McDuffy v. Sec’y of the Executive Office of Educ., 415 Mass. 545, 606 (1993).

2 Hancock v. Comm’r of Educ., 443 Mass. 428, 436 (2005).3 Id.4 In 1980, Massachusetts voters approved an initiative proposal commonly referred to as Proposition 2 ½, which is codified in G. L. c. 59, § 21C. Proposition 2 ½ strictly limits the amount of property taxes a municipality may collect to no more than 2 ½ percent of the value of property in a city or town. See Mass. Teachers Ass’n v. Sec’y of the Commonwealth, 384 Mass. 209, 215 (1981). In order for a municipality to collect property taxes above the limit set forth in the statute, two thirds of the municipality’s voters must approve an override. Accordingly, Proposition 2 ½ limits the amount of funds available to a municipality to spend on its public schools and as a result, override elections are common when a municipality does not receive sufficient state aid or faces local budget deficits.5 1978 Mass. Acts. p. 358-59.6 McDuffy, 415 Mass. at 621.7 Id. at 554.8 “If this standard is taken literally,” one scholar noted, “there is not a public school system in America that meets it.” William E. Thro, A New Approach to State Constitutional Analysis in School Finance Litigation, 14 J.L. & PoL. 525, 548 (1998).

9 McDuffy, 415 Mass. at 620-21.10 G. L c. 69, § 1E (2006).11 Hancock v. Driscoll, No. 02-2978, 2004 WL 877984 at *8 (Mass. Super. Ct. Apr. 26, 2004).12 Hancock, 443 Mass. at 473. See Maura M. Pelham, Note, Promulgating Preschool: What Constitutes a “Policy Decision” Under Hancock v. Commissioner of Education?, 40 New eNg. L. Rev. 209 (2005), for a discussion of the Hancock decision and a history of the litigation of public education financing in Massachusetts and nationwide.13 G. L. c. 10, § 35BB. As the Commonwealth’s sales tax currently stands at 5%, one cent represents 20% of the sales tax. 14 Prior to 1994, local property taxes accounted for approximately 68% of school funding in Michigan. Seven years later in 2001, state funding accounted for approximately 80% of public school funding in total, greatly reducing local property taxes. Debate Over Proposal A Continues Seven Years Later, Mich. educ. ReP., Fall 2001, http://www.mackinac.org/pubs/mer/article.asp?ID=3752 (last visited Oct. 1, 2007).15 See Mass. coNst. art. LXII, §§ 1-4.

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The Profession

Any attorney who commences a civil action in the trial courts of Massachusetts must have an in-depth understanding of the Massachu-

setts Rules of Civil Procedure. From pleadings, through discovery and trial, to post-judgment motions, the civil rules provide the basis for every procedural step in the litigation process. Despite the importance of the Rules, which have the “force of law” and are “binding upon the parties and the court,” State Board of Retirement v. Bulger, 446 Mass. 169 (2006), many practitioners often have little understanding of how the civil rules were promulgated, how they are reviewed, and how they are amended.

This article is intended to provide an overview of the process in Massachusetts for making and amending rules, focusing on the Massachusetts Rules of Civil Procedure (Mass. R. Civ. P.) and the Massachusetts Rules of Appellate Procedure (Mass. R. App. P.). Most of what follows, however, also describes the process for promulgating and amending the Massachusetts Rules of Criminal Procedure.

Unlike the process described in this article for the Mass. R. Civ. P. and Mass. R. App. P., the drafting of the separate sets of rules and amend-ments for the seven trial court departments, for the Appeals Court, and for the organizations affiliated with the Supreme Judicial Court (such as the Board of Bar Examiners and the Board of Bar Overseers), originates in those courts and organizations. The resulting rules are subject to review and approval by the Supreme Judicial Court before they become effective.

Adoption of the Civil and Appellate Rules In the early 1970s, an Advisory Committee made

up of judges, lawyers, academics, and legislators drafted the original versions of the Mass. R. Civ. P. and the Mass. R. App. P. The Advisory Committee’s product was reviewed by the Supreme Judicial Court, which, on July 13, 1973, ordered that the Mass. R. Civ. P. and the Mass. R. App. P. be adopted

to govern procedure in the courts of the Common-wealth. The rules ultimately became effective on July 1, 1974.

The Standing Advisory CommitteeWhen the Mass. R. Civ. P. and Mass. R. App. P.

became effective, the Supreme Judicial Court established the Standing Advisory Committee on the Rules of Civil and Appellate Procedure (SAC) to consider issues arising from the introduction of the new rules. Since that time, the SAC has met regularly to assist the Supreme Judicial Court in reviewing and amending the rules of civil and appellate procedure. Members of the SAC are appointed by the Supreme Judicial Court and include judges, court clerks, the practicing bar, and law professors. Appointments to the committee are for a three-year term, and members are eligible to be reappointed to one additional term.

The Reporter to the SAC—also appointed by the Supreme Judicial Court—is charged with assisting the committee in drafting and reviewing proposed amendments to the rules. The Reporter also drafts the Reporter’s Notes that are issued when there is a new rule or an amendment. The Reporter’s Notes often contain background information about the rationale for a rule change and may indicate whether the change has been drawn from amend-ments to the Federal Rules of Civil Procedure or some other source. Although the Reporter’s Notes may be helpful to attorneys and courts seeking to understand and interpret the rules, the Reporter’s Notes are not part of the formal rules, are “not officially approved or reviewed” by the Supreme Judicial Court, and “are not binding” on the Court. Aldoupolis v. Commonwealth, 386 Mass. 260 (1982) (Reporter’s Notes to the Massachusetts Rules of Criminal Procedure).

The SAC also monitors amendments to the Federal Rules of Civil Procedure to ascertain whether the SAC should recommend an amend-ment to any similar provision of the Massachusetts Rules. Because the Massachusetts Rules of Civil

Making and Amending theMassachusetts Rules of Civil and Appellate Procedure

By Christine P. Burak and Marc G. Perlin

Marc G. Perlin is Associate Dean and Professor of Law at Suffolk University Law School and is the Reporter to the Standing Advisory Committee of the Supreme Judicial Court on the Rules of Civil and Appellate Procedure.

Christine P. Burak is Senior Counsel to the Supreme Judicial Court and is Secretary to the Rules Committee of the Supreme Judicial Court.


Procedure were modeled after the Federal Rules, it is appropri-ate to look to the Federal Rules in interpreting the Massachu-setts Rules and in determining whether amendments should be proposed. See Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174 (1975).

Any interested individual or organization can suggest changes to the rules. Over the years, suggestions to review existing rules and to recommend changes have come from the Supreme Judicial Court, the trial courts, attorneys, judges, bar associations, and the SAC itself. When the Court receives suggestions regarding amendments to the Mass. R. Civ. P. or Mass. R. App. P., it generally refers them to the SAC for consideration and recommendation. Suggestions are then placed on the SAC’s agenda and discussed at a meeting. After full consideration, the SAC determines whether to adopt, modify, or reject the suggestion or proposed amendment. When the SAC adopts a suggestion or proposed amendment, it typically directs the Reporter to draft the language of the amendment and an explanatory Reporter’s Note. At the next meeting, the SAC considers the Reporter’s draft amendment and note. If no additional changes are made, the SAC members vote on the draft.

Before making any recommendation to the Supreme Judicial Court, the SAC publishes the proposed amendment for public comment both in Massachusetts Lawyers Weekly and on the website of the Supreme Judicial Court at http://www.mass.gov/courts. The period for comment depends on the nature of the proposed amendment; it can range from four weeks to several months. Comments may be submitted to the SAC by U.S. mail or by electronic mail. The SAC has not prescribed any particular format for submission of comments.

After the deadline for submission, the SAC reviews the comments at a meeting, may make changes to the amendment, and votes on a final proposal for submission to the Supreme Judicial Court.

Consideration by the Supreme Judicial CourtThe SAC sends its final recommendation to the Rules

Committee of the Supreme Judicial Court, which is comprised of three Associate Justices of the Court. Currently, the Committee is chaired by Justice Greaney, and Justices Ireland and Cowin serve as members. The Rules Committee considers the recommendation and then presents the matter to the Full Court for action at an Administrative Meeting of the Court.

When the Justices approve a proposed rule or amendment, an Order is signed by the Justices promulgating the rule or amendment and setting forth its effective date. After the Order has been signed by the Justices, it is filed in the Office of the Clerk of the Supreme Judicial Court for the Commonwealth. The Clerk’s Office distributes copies to legal publishers, court officials, and interested parties. Newly adopted rules are also published on the Supreme Judicial Court website.

Current Work of the Standing Advisory CommitteeThe Supreme Judicial Court recently asked the SAC to

consider whether a rule limiting inclusion of personal data identifiers in court filings should be adopted. Personal data identifiers include such matters as Social Security numbers, bank account information, dates of birth, and other private matters, the public disclosure of which could lead to concerns about individual security and identity theft. Inclusion of such matters in court filings has become a matter of great interest in federal and state courts in light of the increasing availability of court filings via the Internet, making these documents easily accessible to anyone with a computer.

After discussion, the members of the SAC agreed that the inclusion of personal data identifiers in court filings was a subject of general concern, and so reported to the Court. The Court thereafter authorized the SAC to appoint a special subcommittee with members from each of the trial courts, the Standing Advisory Committee on the Rules of Criminal Procedure, and the bar. The subcommittee was charged with studying the issue on a court-wide basis and making recom-mendations to the SAC. The subcommittee currently has the issue under consideration, including a review of the amend-ments to the federal rules scheduled to become effective on December 1, 2007. These federal amendments limit the inclusion of a variety of personal data identifiers in federal court filings. The volume and variety of matters filed in the Massachusetts state courts suggest that the study and treat-ment of this issue will be complex.

Other complex issues are on the horizon. For example, the SAC currently is monitoring the implementation of the electronic discovery rules in the federal courts, with a view toward evaluating experience in those courts before consider-ing any possible amendments to state court rules. This monitoring period will give the SAC the opportunity to address, in its future recommendations, any problems that may arise under the federal rules.

ConclusionThe significant impact of court rules on Massachusetts

practice suggests the importance of the deliberative process that is followed by the SAC and the Supreme Judicial Court before the Court promulgates any new civil rule or amend-ment. As part of that process, the Court and the SAC welcome comments on existing rules, on proposed rules, and on the process for amending rules. The views of the bar and bench are essential to the work of the SAC, and are a critical part of the process for making and amending rules in Massachusetts.

The authors gratefully acknowledge the helpful comments made by Jerome P. Facher, Esq., Chair of the Standing Advi-sory Committee on the Rules of Civil and Appellate Procedure, and Senior Counsel at WilmerHale.


Practice Tips

In August 2007, the Supreme Judicial Court gave its stamp of approval to joint defense agreements (“JDA”). Hanover Ins. Co. v. Rapo

& Jepsen Ins. Services, Inc., 449 Mass. 609 (2007). A JDA permits defendants with common legal interests to share individual attorney-client communications and work product without waiver as to third parties. JDAs facilitate a free flow of information among counsel with similarly situated clients. The benefits of a JDA, however, do not always outweigh the risks.

General Features Derived from the “common interest doctrine,”

a JDA implements an exception to the rule that disclosure of a privileged communication to another results in waiver of the privilege. A JDA protects only communications that are privileged in the first place and that relate to a common legal interest. Each party to a JDA agrees not to disclose any information received from the other parties. A unilateral breach of that agreement will not result in any waiver of the other parties’ privilege.

The courts originally recognized the common interest doctrine to protect legal advice from one attorney representing two or more clients. JDAs now are commonly used by separately-repre-sented co-defendants in civil and criminal proceedings. Plaintiffs may share privileged communications under the common interest doctrine. Indeed, the doctrine is not limited to litigation but may apply to any legal advice.

Whether to Use a JDAJDAs present risks as well as advantages. For

example, a public company under criminal investigation may have several reasons not to enter into a JDA with employees possibly involved in wrongdoing. Because prosecutors generally take a dim view of a refusal to disclose informa-tion obtained from employees, a company may lose any credit for “cooperation” if it has commit-ted not to disclose such information. The Depart-ment of Justice’s guidelines on corporate prosecution also note that a prosecutor should assess “cooperation” in part based on “whether the corporation appears to be protecting its culpable employees or agents,” for example, by

“providing information to the employees about the government’s investigation pursuant to a joint defense agreement.”

Another important threshold consideration is the potential for conflict and disqualification of counsel. One party to a JDA may mistakenly, but justifiably, believe that she has an attorney-client relationship with lawyers representing other parties. If she later becomes adverse, lawyers for remaining participants may be disqualified from continuing to represent them vis-à-vis the now-adverse party. Further, even absent any privileged relationship, a lawyer bound not to disclose a non-client party’s confidences may still run the risk of subsequent disqualification. Counsel for co-defendants who may later become adverse need to think carefully before using a JDA.

Risks and LimitationsA JDA is not bullet-proof protection against

discovery by third parties. Counsel will need to make judgment calls. For example, to be pro-tected, the shared privileged communication

Peter M. Casey is a shareholder at Greenberg Traurig, LLP in Boston. He defends securities class actions, share-holder derivative claims, securities enforcement matters and other commer-cial and financial disputes, many of which involve finan-cial and accounting fraud claims.

Joint Defense Agreements

By Peter M.Casey


must relate to a common legal interest. A common business or commercial interest will not suffice. The distinction is not always crystalline. To illustrate, an underwriter and an issuer have the same interest in ensuring that an offering document contains accurate disclosure. The issuer’s disclosure to the underwriter of privileged communications about company litigation, however, likely results in waiver. See In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982).

Client participation in JDA discussions with counsel should not defeat the protection. The scant case law suggests, however, that direct communications between the parties themselves, without counsel present, will not be protected. Indeed, although the “party-to-party” circumstance was not at issue in Hanover, the Court stated that the common interest doctrine prevents waiver when the privileged communication is “shared, in confidence, with an attorney for a third person having a common legal interest for the purpose of rendering legal advice to the client.”

Special problems arise when a participant withdraws or defects to the other side. For example, if counsel for a criminal defendant acquires privileged information under a JDA from a co-defendant who later agrees to testify for the government, counsel may be prevented from using that information to cross-examine the defector at trial. The case law in this area is mixed. In any event, conflict and disqualification issues may be addressed, at least partly, in the JDA.

When deciding whether and how to use a JDA, consider:

•The relevant lawMassachusetts courts have only now validated use of JDAs. The First Circuit did so in 1989. U.S. v. Bay State Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20 (1st Cir. 1989). Most states, however, have not ad-dressed JDAs. Review the applicable law to assess a JDA’s availability and usefulness.

• Importance of writing Hanover held that an oral JDA is enforceable. Ordinar-ily, though, counsel should create a written agreement. Aside from eliminating doubt of its existence, a written agreement can cover specific contingencies that otherwise would remain unaddressed or vague. Note that the agreement itself may be discoverable or subject to in camera inspection if a relevant issue arises.

• The legal “interest”A written agreement spelling out the common legal interest in detail reduces possible misunderstanding over what information may be shared.

• Client involvementHanover held that a client’s consent to create a JDA is unnecessary, while observing that it is “preferable” to get consent to “disclose a privileged communication in the event a joint defense agreement is found not to exist.” Hanover’s permissiveness aside, counsel should ask the client to review and sign a written JDA. If feasible, get specific client consent before disclosing confidences or privileged communications.

• ConfidentialityThe essence of a JDA is each party’s commitment to keep confidential all others’ privileged information. The parties, however, will also want to agree that (1) no member is obligated to disclose any privileged informa-tion to any other member; and (2) each member may disclose his or her own privileged information as deemed fit.

• Co-defendant disputesOnce a party to a JDA discloses protected information to another party, the privilege is waived as to the recipient, who may use it in any subsequent dispute between the two. Thus, a JDA should bar all parties from use of any acquired privileged information against the others.

• WithdrawalA JDA should require each member to give notice of intent to withdraw, and upon withdrawal require the return of all shared work product and notes of privi-leged discussions. Some JDAs provide that members forfeit the JDA’s protections upon withdrawal, although such a clause may be a deterrent to joining.

• Only one client and conflict waiverEach party should acknowledge that the JDA creates no attorney-client relationship, and that each attorney acts only on behalf of his client. Further, to minimize subsequent disqualification, each party should waive in advance any conflict from the agreement itself or any information received under it.

In practice, there exists a fair amount of informality among counsel in exchanging information in joint defense situations. But remember that clients, like nations, have no permanent enemies or allies—only permanent interests. Put a JDA in writing. Insist that the client understand and sign it. The discipline will create a common benefit.


Legal Analysis

A Low Dose Prescription:Criminal Prosecution of Off-LabelDrug Promotion

By Michele L. Adelman and Catherine N. Karuga

Michele L. Adelman is Counsel in the Business Crimes and Government Investigations Group at Foley Hoag LLP. She previously served as Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General’s Office and as an Assistant U.S. Attorney for the Eastern District of New York.

Catherine N. Karuga is an Associate in the Business Crimes and Government Investigations Group at Foley Hoag LLP.

Overview

Drug company scientists discover that a rare debilitating disease may be treated with a drug licensed to treat an unrelated ailment. The Food and Drug Administration (“FDA”) has not approved the drug for the rare disease. While the company begins time consuming and expen-sive clinical trials to test this discovery, patients with the rare disease ask their doctor for the drug. Doctors seek as much information as possible on this “off-label” use. The drug company wants to get the word out quickly about the new use.

• Should a drug company be permitted to promote the drug for the new use before FDA approval, and if so, what can the company say?

• Should doctors be permitted to prescribe a drug for an unapproved use, and if so, under what conditions?

• If doctors can prescribe the drug, how do they obtain information on the correct dosage and adverse side effects?

• Under what circumstances can a company provide “off-label” information to doctors?

The answers are unclear. Permitting a drug company to promote off-label uses results in faster and more efficient dissemination of information to doctors that in turn may save the lives of patients with certain terminal diseases1 and in relief for patients with rare diseases who often must rely upon off-label uses to treat their disease. Prohibiting off-label promotion encourages drug companies to conduct appropriate studies before promoting a drug.

Faced with these issues, the government has essentially opposed drug company promotion of off-label uses. While doctors are allowed to prescribe drugs for off-label uses, drug compa-nies are prohibited from promoting drugs for such uses in most circumstances.2 The rationale is to protect the public from drug use that does not meet FDA standards, while protecting doctors’ medical discretion to treat patients. An inherent inconsistency exists. While doctors are most knowledgeable in diagnosing their patients, drug companies are most knowledgeable about their drugs. Accordingly, the party most knowledgeable about the drug cannot explain to doctors the drug’s treatment qualities, dosing regimen and adverse effects.

Nonetheless, off-label drug use is widespread. A 2004 study involving 355,409 hospitalized patients 18 years or younger showed that doctors treated almost 80% of them with at least one


Criminal Prosecution of Off-Label Drug Promotion

Drug promotion takes many forms: sponsored educational

seminars on drug uses, distribution of journal articles and

reference texts discussing drug uses, and sales representative

discussions with medical professionals on drug uses. Off-label

drug promotion comes into play when a drug company

includes off-label uses in its promotional activities.

No statute explicitly criminalizes off-label drug promotion.

Prosecutors, however, have charged off-label drug promotion

under statutes prohibiting the promotion of “misbranded” and

“new unapproved” drugs.

The Food Drug and Cosmetic Act (“FDCA”) prohibits the

introduction of a misbranded drug into interstate commerce.

21 U.S.C. § 331(a). A drug is misbranded if its labeling is “false

or misleading,” 21 U.S.C. § 352 (a), or if its labeling does not

contain “adequate directions for use,” 21 U.S.C. § 352 (f)(1).

The government has charged that off-label drug promotion

furthers the introduction of a drug label that “misleadingly”

fails to address or provide directions for the off-label use.

The FDCA also prohibits the introduction of an unapproved

new drug into interstate commerce. 21 U.S.C. § 331(d) and

355(a). The government has charged that off-label drug

promotion causes the introduction of an “unapproved new

drug,” i.e., a drug marketed for an unapproved new use.

Misdemeanor and felony charges and civil remedies are all

available to the government. To bring misdemeanor charges,

the government need only prove willfulness, while felony

charges require proof of “intent to defraud or mislead.” 21 U.

S.C. § 333(a)(1) and (2). While the meaning of “intent to

defraud or mislead” under § 333 remains unsettled, caselaw

suggests that, at a minimum, the government must introduce

evidence that the defendant “intentionally violated § 331 with

the specific intent to defraud or mislead an identifiable

government agency.” United States v. Arlen, 947 F.2d 139, 143

(5th Cir. 1991), cert. denied, 112 S. Ct. 1480 (1992); United

States v. Varela-Cruz, 66 F. Supp.2d 274, 278 (D.P.R. 1999);

United States v. Bansal, 2006 U.S. Dist. LEXIS 53475 *11 (D.Pa.

Aug. 1, 2006).

First Amendment Implications

With few indictments charging the crime of off-label

promotion, there has been little opportunity for the articula-

tion of legal defenses. Of relevance is a lawsuit brought by the

Washington Legal Foundation in opposition to the Food and

Drug Administration Modernization Act’s (“FDAMA”)

restriction of a drug company’s ability to distribute clinical

reports on off-label drug uses. There, the court accepted the

argument that the FDAMA impermissibly restricted commer-

cial speech in violation of the First Amendment. Washington

Legal Foundation v. Friedman, 13 F. Supp. 2d 51 (D.D.C. 1998).

This First Amendment argument is equally applicable to

criminal prosecutions.

Off-label promotional activities may be considered commer-

cial speech. The constitutional validity of restrictions on off-

label promotion is analyzed using the four-pronged test

established in Central Hudson Gas & Electric Corp. v. Public

Service Commission of New York, 447 U.S. 557 (1980). The first

prong requires that the speech be neither unlawful nor

inherently misleading. Truthful, off-label promotion passes

this test because it concerns a lawful activity, i.e., the prescrip-

tion of drugs. Washington Legal Foundation, 13 F. Supp. 2d at

66-69. The second prong requires that the government’s

interest in the restriction be substantial while the third prong

requires that the restriction directly advance that substantial

interest. These tests are arguably satisfied as the government

off-label drug. Off-Label Drug Use in Hospitalized Children, Archives of Pediatrics & Adolescent Medicine, Vol. 161, No. 3 (March 2007).3 During 1997 hearings, Senator Frist testified that off-label uses constituted 40-60% of all drug prescriptions, over 70% of all pediatric drug prescriptions, and as much as 90% of all oncology prescriptions. 143 coNg. Rec. S8162-02 (daily ed. July 28, 1997). Government programs often reimburse such uses. Medicare covers off-label uses of cancer drugs if included in certain medical com-pendia. 42 U.S.C. § 1395x(t)(2).

Off-label drug prescriptions have spawned criminal charges of off-label promotion by drug companies and their agents, malpractice claims against doctors who prescribed drugs for off-label uses, insurance coverage disputes for off-label drug treatments, and class action litigation by off-label drug users alleging injury. This article focuses solely upon criminal charges.


has a substantial interest in encouraging drug companies to

seek FDA-approval of off-label uses and restrictions on off-

label promotion advance this interest. Id. at 71-72.

It is the final prong—requiring that the restriction be no

more extensive than necessary to further the government

interest—that the FDAMA failed to satisfy. The Supreme

Court has stated “that if the Government could achieve its

interests in a manner that does not restrict speech, or that

restricts less speech, the Government must do so.” Thompson

v. Western States Medical Center, 535 U.S. 357, 371 (2002). In

Washington Legal Foundation, the court found the FDAMA to

be unconstitutional because the FDA could have required

drug companies to provide complete and unambiguous

disclosures that the “off-label” uses were not FDA-approved.

Washington Legal Foundation, 13 F. Supp.2d at 73-74. This

disclosure would provide an effective and less burdensome

alternative to FDAMA restrictions. The court identified many

benefits with this approach, including: (1) “[a] physician

would be immediately alerted to the fact that the ‘substantial

evidence standard’ [of FDA approved drugs] had not been

satisfied, and would evaluate the communicated message

accordingly;” (2) “permitting this limited form of manufac-

turer communication still leaves more than adequate incen-

tives compelling drug manufacturers to get new uses

approved by the FDA;” (3) “to the extent that physicians look

to FDA approval as an important (or the exclusive) indication

of safety and effectiveness, and either will not prescribe or are

reluctant to prescribe absent such approval, manufacturers

will seek to obtain FDA approval to make their products more

appealing to the market;” and (4) “off-label prescriptions,

presently legal, do constitute the most effective treatment

available for some conditions. …. [and] the truthful [off-label]

information may be life saving information, or information

that makes a life with a debilitating condition more comfort-

able.” Id. at 73-74.4 The First Amendment equally bars off-

label criminal prosecutions.

District of Massachusetts

The U.S. Attorney’s Office for the District of Massachusetts

is a national powerhouse in the area of healthcare fraud

prosecution.5 Yet, cases involving facts that arguably could

support charges of off-label promotion have largely been

resolved through civil dispositions, deferred prosecution

agreements or guilty pleas to lesser criminal charges.

Through such an approach, drug companies have not faced a

bar from participating in government-funded programs.6

Bristol-Myers SquibbIn September 2007, Bristol-Myers Squibb Company

(“BMS”) and its subsidiary Apothecon, Inc. (“Apothecon”)

entered into a civil settlement agreement with the U.S.

Attorney’s Office and Department of Health and Human

Services, Office of the Inspector General (“OIG”) regarding

the company’s sales and marketing practices including

alleged violations of 21 U.S.C. § § 331(a) and (d), through off-

label promotion of the drug Abilify; two unrelated violations of

the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2),

through illegal remuneration to retail pharmacies, wholesal-

ers and physicians; and three separate violations of the False

Claims Act, 31 U.S.C. § § 3729-33, through maintaining

inflated prices for its drugs and misreporting its pricing of

drugs. Under the agreement, BMS and Apothecon agreed to

pay in excess of $515 million. BMS also entered into a

Corporate Integrity Agreement (“CIA”) 7 with the OIG relating

to off-label promotion. No criminal charges were filed.

Pharmacia & Upjohn In March 2007, the U.S. Attorney’s Office entered into a 36-

month deferred prosecution agreement with Pharmacia &

Upjohn Company LLC (“Pharmacia”), a subsidiary of Pfizer,

Inc. (“Pfizer”), arising out of Pharmacia’s promotion of

Genotropin for off-label uses. The Information charged

Pharmacia with distribution of an unapproved new drug in

violation of 21 U.S.C. §§ 331(d), 333(a) (2) and 355(a).

Pharmacia agreed to pay $15 million; if it violates any provi-

sion of that agreement, the U.S. Attorney’s Office may file the

Information. Pfizer also entered into a five-year CIA which

required that Pharmacia establish a “Specific Training”

program on marketing and promotion of drugs and dissemi-

nation of information on off-label uses.

Schering Sales In August 2006, Schering Sales Corporation (“Schering”)

pled guilty to charges of conspiracy to make false statements

to the FDA to avoid FDA scrutiny of Schering’s off-label

promotion of Temodar and Intron A, in violation of 18 U.S.C.

§ 371. The Information alleged that Schering engaged in

widespread marketing of drugs for unapproved uses. Yet, no

criminal charges were filed under 21 U.S.C. §§ 331(d),

333(a) (2) and 355(a). Under the plea agreement, Schering

paid a $180 million fine and its preexisting CIA was expanded

to incorporate off-label promotion.

�0 Boston Bar Journal • November/December 2007

Serono Laboratories In October 2005, Serono Laboratories, Inc. (“Serono”) pled

guilty to conspiring with a medical device manufacturer to

market computer software devices for unapproved uses to

increase the market for its drug, Serostim, as well as unre-

lated charges of offering illegal kickbacks. Serono paid $704

million in criminal fines and civil payments. Although a civil

settlement agreement alleged that Serono promoted the sale

and use of Serostim for off-label uses, no criminal charges

were filed. Serono entered into a five-year CIA that included

obligations countering off-label promotion.

Warner-LambertIn May 2004, Warner-Lambert pled guilty to charges of

promoting Neurontin for unapproved uses in violation of

21 U.S.C. § § 331(a), 331(d), 333(a), 352(f)(1) and 355. The

Information alleged that Warner-Lambert promoted these

uses despite the lack of clinically controlled data demonstrat-

ing Neurontin’s efficacy in treating these conditions and the

FDA’s rejection of Warner-Lambert’s application for one

indication. Warner-Lambert’s parent company, Pfizer, paid

$240 million in criminal fines and its existing CIA was

expanded to include requirements relating to its marketing

activities and dissemination of off-label information.

Conclusion

Strong arguments oppose criminal prosecution of off-label

drug promotion. An open debate continues as to whether

society’s interests are better served by permitting such

promotion, rather than prosecuting it. The lack of a single

statute directly criminalizing such conduct further weakens

any criminal case. First Amendment barriers to such enforce-

ment remain. Although the U.S. Attorney’s Office for the

District of Massachusetts has extracted significant fines and

stringent CIA requirements, it has demonstrated limited

prosecutorial interest in seeking felony criminal charges for

off-label drug promotion.”

Endnotes1 The Boston Globe reported that “[f]rom 2002 to 2004,

newly approved drugs took an average of 8.5 years to work their way through clinical trials to earn FDA approval.” Dietra Henderson, FDA Rules Aim to Speed Drug Tests and Trim Costs, Boston Globe, Jan. 13, 2006.

2 The most notable exception permits the dissemination of off-label information in response to unsolicited requests for information from physicians. 21 U.S.C.A. § 360aaa-6; 21 C.F.R. § 99.1(b).

3 A recent Boston Globe article reported: “Once the FDA approves a drug for adults, manufacturers seldom retest it in children. Physicians, however, frequently treat children with drugs approved for adults -- a practice called off-label prescribing -- without knowing the proper dosing or whether the therapies even work in children.” Diedtra Henderson, Risperdal Use OK’d in Treating Children, Boston Globe, August 23, 2007.

4 On appeal, the FDA opined that the challenged provisions in the FDAMA were simply a “safe harbor” ensuring that certain forms of conduct would not be used against manufac-turers in misbranding enforcement actions, and that the provisions did not independently authorize the FDA to prohibit or to sanction speech. The Court of Appeals vacated the District Court’s decision without reaching the merits of the First Amendment holding, based on the lack of a constitu-tional controversy in light of the FDA’s interpretation of the FDAMA. Washington Legal Foundation v. Henney, 202 F.3d 331, 335-36 (D.C. Cir. 2000).

5 In 2003, this health care fraud unit led the nation in healthcare fraud recoveries. Robert S. Bennett and David M. Medearis, Health Care Fraud: Recent Developments and Timeless Advice, Texas Medicine, October, 2003. And in June 2005, the Wall Street Journal highlighted the Office’s role in prosecuting healthcare fraud. Harvey A. Silverglate, Bean-town Shakedown, Will the Justice Department Drive Health-Care Business Out of Boston?, The Wall Street Journal, June 24, 2005.

6 42 U.S.C. § 1320a-7(a) and corresponding regulations, 42 C.F.R. § 1001.101, provide for mandatory exclusion of certain individuals and entities from participation in Medicare and State health care programs for (1) convictions of program-related crimes; (2) convictions relating to patient abuse; (3) felony convictions relating to health care fraud; and (4) felony convictions relating to controlled substances. 42 U.S.C. § 1320a-7(b) and corresponding regulations, 42 C.F.R. § 1001.201, provide for permissive exclusion of certain individuals and entities from participation in Medicare and State health care programs for enumerated violations.

7 The OIG often negotiates CIAs with healthcare organiza-tions as part of the settlement of its investigations. Under a CIA, the organization consents to certain operational obliga-tions in exchange for the OIG foregoing other penalties.

Boston Bar Journal • November/December 2007 �1

BBA Update

T he sPiRit of the Boston Bar Association is one that never shies away from the long-term challenging issues that help promote its mission to facilite access to justice, to

serve the community at large. For almost two decades, the BBA has fostered discussion of the strengths and weaknesses of the Commonwealth’s criminal justice system, especially with regard to sentencing reform and prisoner re-entry.

In the coming months, the BBA will renew these efforts by joining a coalition including the Massachusetts Bar Associa-tion, the Committee for Public Council Services, the Crime and Justice Foundation, Families Against Mandatory Mini-mums, and Governor Patrick’s Anti-Crime Council, on which the BBA is represented by Michael Ricciuti of K&L Gates, Co-Chair of the BBA’s Criminal Law Section. As BBA President Tony Doniger notes, “Sentencing and CORI reform are integral pieces of the BBA mission. They are clearly social justice issues that promote fiscal responsibility, public safety and access to justice for all.”

The BBA and Sentencing ReformThe BBA’s story began in 1991 when the BBA Task Force

on Justice and the Crime and Justice Foundation issued a joint report entitled The Crisis in Corrections and Sentencing in Massachusetts, which provided a detailed overview of the organization and functionality of our system of addressing crime. Two primary recommendations of that report were the creation of a Sentencing Commission and the development of a set of guidelines for judges to use in sentencing persons convicted of crimes.

“The Task Force, in no uncertain terms, called for the repeal of manda-tory sentencing, particularly the harsh and ineffective mandatory drug sentenc-ing laws; and for the establishment of a ‘tough, effective, and cost efficient’ system of intermediate sanctions, in lieu of incarceration for non violent offend-ers,” recalls Bill Leahy, Chief Counsel for the Committee for Public Counsel Services, a member of the 1991 BBA Task Force on Justice and a former BBA Council member.

Marty Rosenthal, a defense lawyer and former BBA Council member and BBA Criminal Law Section Co-Chair, has actively pursued sentencing reform for three decades, authoring the 1990 BBA Resolution Opposing Mandatory Sentencing. “After three decades of steadily mounting evidence of the flaws of mandatory minimum sentences, culminating in the 2004 report of the Harshbarger Commis-sion on Corrections Reform, on which I served, this practice, at long last, is one whose time has expired in Massachusetts—as it already has in many other states. Among the encourag-

ing tea leaves is the obvious high priority of the organized bar, including the BBA, which for many years has been centrally involved in this effort.

Immediate BBA past President Jack Cinque-grana was a member of the BBA 1991 Task Force on Justice as well as the Sentencing Commission, and worked to advocate for sentencing reform. BBA President Tony Doniger and President-Elect Kathy Weinman are both committed to continuing these efforts.”

“I know we can have safer neighborhoods. But it will take more community-based patrols, after-school and enrichment programs, summer job and volunteer opportunities for young people, training and pre-release preparation for inmates, and sensible reform of both CORI and sentencing. Let’s reach for that.”

— Governor Deval L. Patrick Inaugural Address

State House, Boston, January 4, 2007

Justice Not for All: The Time for Change is Now

Marty Rosenthal

William J. Leahy

Rep. Eugene L. O’Flaherty, House Chairman of the Joint Committee on the Judiciary, with BBA President Tony Doniger and BBA Council member Randy Gioia, prior to addressing the Council at the October 2007 meeting.

�� Boston Bar Journal • November/December 2007

Since 1991, the BBA has testified each legislative session before the Joint Committee on the Judiciary in support of sentencing reform. It will do so again in November.

The BBA and Prisoner Re-entryThe BBA strongly believes that any sentencing reform

package should incorporate post release supervision, but with caution. The institution of intermediate sanctions as an option for less serious and nonviolent crimes will contribute to the rehabilitation of offenders and reduction of future crime rates. Further, the use of appropriate intermediate sanctions will also mean that public safety dollars can be allocated rationally to serve the goals of reducing crime in all Massachusetts communities.

In 2002, the BBA’s Task Force on Parole and Community Reintegration, issued a report which found that parole can be a valuable tool for making communities safer and reducing recidivism. Unfortunately the public perception of parole is that parole benefits only the offender—not society—and that when a prisoner is paroled, society is being soft on crime. The result is that parole is under-utilized.

The Task Force found that parole rates dropped signifi-cantly from 1990 to 2000. Because of declining rates of parole, more and more offenders are simply “wrapping up” their sentences and being released onto the streets with no supervi-sion or the benefit of re-entry programs. The BBA will continue to educate the public that parole enhances public safety because it allows offenders a chance to reacquaint themselves with the duties, responsibilities, and freedoms exercised outside of confinement, while under supervision.

Perhaps most troubling is that many statutes that deal with drug crimes carry minimum mandatory sentences regardless of the offender’s criminal activity and past record. Last spring, the BBA testified in support of a bill that would allow a person serving a mandatory minimum sentence for a drug violation to be parole eligible after serving two thirds of their maximum sentence. By offering the parole option for non-violent drug offenders, the system can transition eligible inmate candidates into the community and save our prison beds and costs for the

violent offenders who pose a real threat to society.

Leslie Walker, Co-Chair of the BBA Delivery of Legal Services Section and Executive Director of MA Correctional Legal Services offered an explanation of the problem. “Prisons are grossly overcrowded. The most overcrowded unit in the state is at MCI Framingham where the Awaiting Trial Unit is at 360% of capacity. Massachusetts cannot build

its way out of this unsafe nightmare. The reform of mandatory minimums would provide much of the relief that is needed.” With regard to parole eligibility for non-violent drug offenses,

she added, “Because of the non-violent nature of their crimes and their impeccable prison records, many prisoners are likely to be granted parole. Parole supervision is not a free pass. It can and often does require electronic monitoring, daily reporting, urine testing, gainful employment and appropriate housing. It also saves the Commonwealth significant tax dollars.”

The BBA and CORI ReformIn addition to greater use of parole, the BBA believes that

CORI reform legislation is an essential component for the successful and safe reintegration of prior offenders into society. We need to assist those who have been mistakenly identified as offenders, or against whom charges have been dismissed. We need to clarify their records in a prompt and effective manner, to allow for the opportunity to seal their records within a reasonable amount of time, and to purge those juvenile records that bear no meaningful relevance to their ability to become productive and well-adjusted adults.

In the fall of 2006, the BBA formed the Study Group on CORI Reform under Jack Cinquegrana. Chaired by Jennifer Tucker, Co-Chair of the BBA’s Labor & Employment Section, the group consisted of experienced lawyers in various practice areas, ranging from criminal and civil liberties law to employ-ment and health law. Others with substantial experience dealing with the CORI system also participated, including the Suffolk County District Attorney’s Office, the Committee for Public Counsel Services, the Boston Police Dept., the City of Boston’s Legal Dept., Youth Opportunity Boston, and Mass. Correctional Legal Services.

This fall, the BBA adopted 12 basic principles developed by the group covering four categories that meaningful CORI reform demands: Accuracy, Access, Sealing, and Juvenile Justice. “Successful re-entry is a critical component of preventing recidivism,” said BBA President Tony Doniger. “It is no secret that many employers find it easier to hire some-one without a smudge on his or her record than to deal with trying to understand CORI. The principles adopted by the BBA provide an important road map for those on all sides of the issue. Where CORI is concerned, nothing is more dangerous than inertia.”

ConclusionThe BBA joins the community in wanting to see a criminal

justice system that inspires public confidence, with the means and direction to sentence offenders in a rational, consistent, and effective manner—a system that will ultimately enhance public safety, promote fiscal responsibility and access to justice for all.

For more information on BBA public policy, please contact Deborah Gibbs, Director of Government Relations, at (617) 778-1942 or by e-mail to [email protected].

Leslie Walker

BBA Update

Boston Bar Journal • November/December 2007 ��

Claire Bishop AbelyFoley & Lardner LLP*

Aaron J. Agulnek Massachusetts State Senate

Jennifer A. CardelloFoley Hoag LLP*

Bryan S. ConleyWilmer Cutler Pickering Hale and Dorr LLP*

Sherley E. CruzGreater Boston Legal Services*

Kate GrennanAIDS Action Committee of MA

Dara Z. KesselheimChoate, Hall & Stewart LLP*

Rachel A. LiptonBrown Rudnick Berlack Israels LLP*

Bonnie Schroeder McGuireRopes & Gray LLP*

Jennifer M. RyanDwyer & Collora, LLP*

Noah C. ShawMintz Levin Cohn Ferris Glovsky & Popeo, P.C.*

Stephen D. SilveriLaw Office of Stephen D. Silveri

Christopher D. StrangCorwin & Corwin LLP

Suleyken D. WalkerMeehan, Boyle, Black & Bogdanow

Heidsha Sheldon, Seyfarth Shaw LLP*

The Boston Bar Association is strongly committed to developing the next generation of civic leaders through its prestigious Public Interest Leadership Program (PILP). In September, BBA President Tony Doniger named fifteen lawyers as the newest members of the leadership training program, now in its fifth year. The program is for lawyers who have practiced law for fewer than 10 years, and fosters the professional relationships that are essential to success.

This year’s PILP members graduated from eight different law schools and represent 11 law firms, eight of which are new to the program. They also come from legal services agencies,

the Massachusetts Legislature, and include a solo practitioner. Nominated by their employers for their demonstrated commit-ment to public service and pro bono work, the highly select and diverse membership ensures that participants benefit from a vast array of experiences and perspectives, and that the message of the program will be spread across the city of Boston and its legal community.

The BBA warmly welcomes this year’s Public Interest Leaders:

*BBA Sponsor Firms and Organizations

2007-2008 Public Interest Leaders


A key benefit of participating in PILP is that members become part of a growing alumni/ae network, where attorneys can benefit from the experience and leadership of their predecessors and colleagues. Since going through the program, alumni have assumed leadership roles in BBA Sections and Committees and on local town boards, educational councils, and local and national public service organizations. When the Boston Bar Journal

recently checked in with Public Interest alums, we were happy to find that they are an active group, in no small part because of the experiences they had had and the people they were able to meet during their year in PILP.

For more information about the Public Interest Leadership Program, contact Paul Dullea at (617) 778-1934, or [email protected].

Kevin B. Currid, U.S. Securities and Exchange Commission“PILP was a very rewarding experience that continues to pay dividends. It allowed me to work with the city’s most talented, committed and civic-minded lawyers and solidified my commitment to the BBA. I continue to be active in the BBA and today I serve on the BBA’s Public Service Committee. I recently joined the Boston Regional Office of the United States Securities and Exchange Commission as an enforcement attorney after eight years as a litigation associate at Foley Hoag LLP, where I focused on securities litigation and accountants’ professional liability.”

Kathleen Cloherty Henry, Choate, Hall & Stewart LLP*“I developed professional and personal relationships with my fellow PILP members, who serve as a source of support, and with whom I collaborate on projects within and outside of the BBA. I serve on the BBA’s Public Service Committee, and do pro bono work on behalf of the Political Asylum and Immigration Refugee Project. Since my days in the Program, I have had three children, and have focused my practice at Choate Hall & Stewart on insurance and reinsurance litigation and arbitration.”

Nader Mousavi, WilmerHale*“Since completing PILP, I returned to my native California as a founding member of WilmerHale’s Palo Alto office. I was just named by the Silicon Valley/San Jose Business Journal as one of the top “40 under 40” business professionals in Silicon Valley, and recently also received my firm’s Reginald Heber Smith Award for community service, given each year to one attorney in the firm for outstanding commitment/leadership in community service. I have been very involved in helping Citizen Schools—a Boston-based non-profit organization focusing on after-school education—build and establish its California operations both as a member of the California Champions Council for Citizen Schools and a Citizen Teacher for the its Mock Trial Program.”

Essence R. McGill, Foley Hoag LLP*“I was thrilled to have met an extraordinary group of young lawyers engaged in and committed to pro bono/public service, and was able to energize interest in public service for my friends and colleagues. I now serve on the Boards of Directors of the Big Sister Association of Greater Boston and of the Boston Dance Alliance. I also serve on the Board of Governors for the Harvard Club of Boston. I feel that because of my participation in PILP, I have been provided with more opportunities to take leadership roles at Foley Hoag LLP both on client matters as well as in internal programs.”

Samantha Morton, Medical-Legal Partnership for Children at Boston Medical Center“The Program was invaluable because it introduced me to so many experienced and emerging public servants, who were full of passion and creativity and from whom I learned a great deal. More importantly, having had the opportunity to build relationships and share ideas with my PILP contemporaries (and later PILP generations) has created valuable strategic opportunities for my program and the clients it serves. I currently am Deputy Director of the Medical-Legal Partnership for Children at Boston Medical Center (MLPC), which promotes child and family health through legal advocacy. Separate from my MLPC work, I am just completing a six-year term as a director and officer of the Massachusetts Alliance on Teen Pregnancy, which is dedicated to preventing adolescent pregnancy and to promoting quality services for pregnant and parenting teens and their children.”

Public Interest Alumni/ae Class Notes

Class of 2003-2004:

Class of 2004-2005:

BBA Update


Thuy Wagner, Boston Medical Center*“I have maintained contact with many of the lawyers I met through PILP, and have called on them numerous times for help with specific cases or with questions about particular issues. The PILP lawyers have involved me in events and organizations that I otherwise might not have known about. After completing my PILP year, I served a one-year term on the BBA’s Public Service Committee, have co-chaired several seminars with the Association of Corporate Counsel (ACC), and am serving on ACC’s Diversity Committee and on the Council of the Trustees of Reservation. For the next issue of the BBA Health Law Reporter, I am interviewing Senator Dianne Wilkerson and Representative Peter Koutoujian about their efforts to eliminate racial and ethnic health disparities. I feel that PILP has introduced me to the incredibly active and warm BBA family—probably the most important professional connection I have made!”

Manisha Bhatt, Greater Boston Legal Services*“I am very happy to have learned about the BBF and the BBA’s many programs and Sections through PILP. I am proud that I am a Public Interest Leader and a member of a nationally recognized organization. Though I do practice public interest law, PILP gave me the motivation to explore other arenas where I can use my skills as an attorney to make in difference in my community. I have been appointed to the Board of Editors of the Boston Bar Journal, and have made connections with diverse group of attorneys from all different practice areas. Having interacted with attorneys outside of my practice area, gaining exposure to different areas of law and different ways of thinking has enabled me to become a better lawyer.”

Ed Hale, Greenberg Traurig, LLP*“Becoming a part of the ever-growing network of PILP attorneys has been one of the greatest benefits of my participation in PILP. My connections with PILP alums have been some of the most valuable of my career. Learning about the experiences of other Program participants inspired me to become more involved in my community. Since participating in PILP, I have joined the Board of Directors of the Crispus Attucks Children’s Center in Dorchester, Massachusetts. I continue to volunteer as an attorney teacher in the Citizen Schools/Discovering Justice mock trial program for elementary and junior high school students, and I now perform pro bono legal work through the Volunteer Lawyers Project.”

Chris Morrison, Hanify & King, P.C.*“PILP provided me with a unique opportunity to become more engaged in the Bar, giving me an ‘insiders view’ of the BBA, and demonstrating to young lawyers how important it is to remain engaged with the BBA and BBF. I gained a better understanding of practice areas and needs outside of Hanify & King, and forged lasting professional relationships and friendships. This year, I was appointed to the Mental Health Legal Advisors Committee by the SJC, and last year, I was re-elected to the Norwood School Committee and appointed to the Board of Trustees of MassBay Community College by the Governor.”

Randall E. Ravitz, Massachusetts Attorney General’s Office*“I have benefited from PILP in several ways. During my year in PILP, I learned about community organizing and leadership, Boston-area politics, and ensuring access to justice, all while making good friends whom I still keep in touch with and support. Because of the warm welcome the BBA gave me after the year concluded, I have served as Co-Chair of the BBA’s Civil Rights & Civil Liberties Section and Co-Chair of the BBA’s Litigation Public Policy Committee. I also became a board member of the Massachusetts Voter Education Network, Inc. (“MassVOTE”), a non-profit organization that I learned of through PILP. My participation in PILP has led me to act as a liaison between my office and organized bar groups on issues of mutual interest, which I hope will enable me to contribute more to both my office and the organized bar.”

Phil Catanzano, U.S. Department of Education, Office for Civil Rights“The friendships I forged with my fellow PILP classmates and with members of the BBA were the most obvious benefits of the program, but I also got a better sense of the shared goals and desires of attorneys from completely different areas of the legal practice spectrum. Big firm attorneys are stereotypically painted with the single broad brush stroke of being very corporate profit-oriented, but these same attorneys bring a different—and very valuable—viewpoint to their charitable/pro bono work. And it’s a two-way street; public practitioners can demonstrate to private practitioners that sometimes results can be gotten short of drawn-out litigation. I moved from a large firm to a government agency during my PILP year, so this was something I paid a good deal of attention to. After my PILP tenure ended, I will begin serving on the Steering Committee of the BBA’s Civil Rights & Civil Liberties Section, and I’m interested to see how the things I learned from PILP play out in practice.”

Jeffrey Gleason, WilmerHale*“PILP was a fantastic experience for me. Not only did I get to meet the city’s current leaders in pro bono services, but I had the opportunity to get to know many of Boston’s future public service leaders in my PILP class. Paul Dullea did a great job introducing us to the numerous efforts being made by attorneys around the city to serve the public good. I look forward to working with Paul and my fellow PILP alums on similar projects in the future.”

Class of 2005-2006:

Class of 2006-2007:


BBF News

John Chu of Chu, Ring & Hazel with Dina Chu.

Joan Lukey of WilmerHale with Phil Stevenson.

Wm. Shaw McDermott of K&L Gates with Hope McDermott.

Stephen Nolan and Bruce Falby, both of DLA Piper; Marie Nolan; Nancy Falby.

Mary Ryan of Nutter McClennen & Fish; Julia Huston of Bromberg & Sunstein; Lisa Goodheart and Christine Netski, both of Sugarman Rogers Barshak & Cohen.

Among the Celebrants at the 2007 John & Abigail Adams Benefit Ball…

Jay McManus of the Children’s Law Center; Beth Boland of Bingham McCutchen; Josh Dohan of the Youth Advocacy Project of CPCS.

Jaqueline Taylor of PAREXEL International Corporation with Fred Alvaro, Partner-in-Charge, Boston Office, Adorno & Yoss.

The Boston Bar Foundation’s 2007 John & Abigail Adams Benefit Ball was a great success, raising over $580,000. Proceeds fund immediate grants to civil legal aid organizations and projects that provide critical assistance to low-income individuals in the Greater Boston area, support the Boston Bar Association’s community service and pro bono activities, and help further the philanthropic work of the Boston Bar Foundation. The BBF extends its thanks to this year’s Event Chair, Lawrence S. DiCara and the 2007 Adams Ball Event Committee, and congratulates this year’s Public Service Award honoree, Paul Guzzi, President & CEO of the Greater Boston Chamber of Commerce.


BBA President Tony Doniger; Liza Lunt; Judge Wilbur Edwards.

Anthony Froio, Managing Partner, Robins, Kaplan, Miller & Ciresi, with

Stephanie Froio.

Wayne Dunbar; BBF President Sandra Jesse, Executive Vice President and Chief Legal Officer, Blue Cross Blue Shield of

Massachusetts; Beth Boland of Bingham McCutchen; Cameron Kerry of Mintz Levin Cohn Ferris Glovsky and Popeo; BBA

President-Elect Kathy Weinman of Dwyer & Collora.

John Donovan of Ropes & Gray; Event Chair Larry DiCara of Nixon Peabody; Theresa Spillane.

BBF President Sandra Jesse, Executive Vice President and Chief Legal Officer, Blue Cross Blue Shield of Massachusetts; 2007 Public Service Award recipient Paul Guzzi, President & CEO, Greater Boston Chamber of Commerce; Chief Justice Margaret Marshall of the Supreme Judicial Court.

Ron Nelson of Mintz Levin Cohn Ferris Glovsky and Popeo; Rukhsana Nelson; Bob Wilson; Peter Zupcofska of Burns & Levinson.

Lisa McNamara; Frank McNamara, General Counsel, Putnam Investments; Tom Fries; Elizabeth Shea Fries of

Goodwin Procter.


Corinna W. ApplegateMartin L. AronsonPam AtkinsonKenneth AugenPaula BaggerMlanda BashalaLorig BasmajianKimberly BenderArlene L. BernsteinJudi BerryMegan BiskDarren BrahamAmy BratskeirRicky BrownStephanie BruceDavid BurgessBrian CannJason CarrozzaMelissa CelliDonna CohenThomas B. ConcannonLisa CoreChristopher Courchesne

Brian CostelloPolly CrozierJohn DavisAndrew DenningtonClinton DickSara DiscepoloChristopher M. DonahueAnne DowdTom DraperElizabeth EggertBeth ElliotBernard FangMichael J. FencerRich FieldsJohn Adams FiskeArlene J. FothergillJulie A. W. FraserRebecca GagneCheryl L. GarrityMerrily S. GerrishHoward I. GoldsteinClaudia GregoirePaul Ham

Todd HammondAudrey HeidtJames C. HeighamAlexander HenlinHerbert HershfangMatthew A. HolianWilliam H HorneJohn W. KaufmannElizabeth KimSusan KlueppelSue-Ellen KreshRay KwosichDebra LansberryDmitry LevCharles LevinRachel LiptonJohn MackeyRobert MarshallElianna MarzianiJoseph MillerThomas MontiLeah MooreRobert MorrilRobin Murphy

Kim NemirowMarshall NewmanDavid NielsonDonald R. O’ClairKara O’DonnellC. Elizabeth O’KeeffeHarriet OnelloWalter OneyAnthony OrlandiMichelle ParkClifford J. ParrottMilap PatelEvelyn PatsosKevin PechulisSierra A. PinoBrendan Piper-SmyerChris PowellWarren PyleChristian A. RiveraElizabeth RodgersEllen RosenfeldVictoria C. RothbaumGlenn F. RussellAdam Ruttenberg

Gabrie SaferJohn G. ShackRobert ShererErica ShultsSonia SteeleJames SweetJoseph O. TaiwoRobert ThomasMatthew TisdaleNorah TowerMargaret S. TraversKaren Van KooyJudith VassilovskiDevorah VesterElizabeth ViningKenneth ViningNeil WarrenbrandCatherine Welsh AndersonVictoria WhelanAngela WieremannMarianna YangFrank A. YeeArthur Young

Pro Bono Honor RollThe Volunteer Lawyers Project of the Boston Bar Association thanks the attorneys who took pro bono cases or provided consultation during the third quarter of 2007:

Attorney at LawDavid W. AdamsMatthew FlindersJames G. Silva

Bingham McCutchen LLPAbby BoxerLiz A. CarcanoJoanne D.C. FoleyJoyce HsiehPhilip G. JordanJames C. Stokes

Brown Rudnick Berlack Israels LLPOris T. BryantChristopher DunhamTimothy C. MaguireEdwin C. PeaseBenjamin M. WelchKristen A. Young

Dechert LLPLewis A. BurleighSusan M. Camillo

DLA Piper US LLPZachary N. CosegliaDaina I. GroskaufmanisBrett L. HendricksonDavid G. HigginsAnthony T. Panebianco

Edwards Angell Palmer & Dodge LLPScott John EriksenMatthew R. Frascella

M. Machua Millett

Foley & Lardner LLPJames F. EwingJames A. Manzi

Goodwin Proctor LLPSusan L. AbbottStephanie F. Pare

Klein Hornig LLPTeresa M. SantaluciaRita M. Schwantes

Lynch, DeSimone & Nylen LLPFredrick S. Gilman

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. Anthony E. HubbardAgnes Lee Sym

Nicolai Law Group, P.C.Caroline E. NicolaiPaul P. Nicolai

Nixon Peabody LLPBrian M. BuschJuan A. ConcepciónDavid R. GluckLee HarringtonKevin P. JoyceChristopher P. KeefeRobert L. KirbyMatthew R. Lynch

Amy L. PuglianoJeffrey W. SacksRichard H. Santoro IIJoshua D. SkolnickSteven L. Smith

Nutter McClennen & Fish LLPRobert V. KanapkaMelissa Sampson McMorrowMarie-Armide E. Storey

Roddy Klein & RyanGary Klein

Ropes & Gray LLPDarren BrahamBrad E. MoyerYaacov P. SilbermanJennifer K. SantosHeather A. Walsh

Sheehan Phinney Bass + Green PAMark J. Ventola

Sherin and Lodgen LLPKurt A. James

Skadden, Arps, Slate, Meagher & Flom LLP John E. AlessiCarolyn Brenner

Verrill Dana LLPJames F. Coffey

Keith E. Glidden

Weil, Gotshal & Manges LLPScott S. Mazur Kevin J. Sullivan

Wilmer Cutler Pickering Hale and Dorr LLPMichael A DienerJeremy E. GauldHenry H. GuTimothy F. Silva

Additional thanks to the following people who helped us recruit volunteers:Anne Bowie, Wilmer Cutler Pickering Hale and Dorr LLP; Steven Cowley and Tom Schnorr, Edward Angell Palmer & Dodge LLP; George Field, Verrill Dana LLP; Susan Finegan, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; Claire Laporte, Foley Hoag LLP; James Manzi, Foley & Lardner LLP; Matthew Lynch and Cornelius Moynihan, Nixon Peabody LLP;

Kristy Nardone, Ropes & Gray LLP; Neal Rosen, Robert McDonnell and Linda Groves, Bingham McCutchen LLP; Carolyn Rosenthal, Goodwin Procter LLP; Mary Ryan and Kenneth Berman, Nutter McClennen & Fish LLP; Dylan Sanders, DLA Piper US LLP; Rita Schwantes, Klein Hornig LLP; Suzanne Turner, Dechert LLP; Al Wallis, Brown Rudnick Berlack Israels LLP.

Finally, thank you to Goodwin Procter LLP for continuing to host the Nonprofit Formation Seminars, a joint effort of the Lawyers Clearinghouse and Volunteer Lawyers for the Arts, and to Boston Private Bank & Trust Company to host additional legal workshops for nonprofits.

Fullfilling the Pro Bono Commitment

The Lawyers Clearinghouse on Affordable Housing and Homelessness thanks the volunteers who have recently accepted pro bono cases from the Boston Bar Association Business Law Pro Bono Project and the LCAHH Community Legal Referral Program.

Pro Bono Update

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