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Courting Change

Eric Gouvin

Eric Gouvin says law students, like the customers of any business, want return on their investment.

Enrollment was already declining at law schools nationwide when the Great Recession hit, drying up the legal job market and driving the applicant count even lower. That forced a mass contraction at institutions across the U.S., including Western New England University School of Law. But its dean says the strategies undertaken to provide more return on investment for students has brought stability, and the future looks brighter than it has in years.

Few law-school leaders are surprised that enrollment is slightly higher nationally than it was a few years ago — if only because it couldn’t get much lower.

In fact, said Eric Gouvin, dean of Western New England University (WNEU) School of Law, 100,600 individuals applied to law schools during the 2003-04 cycle. In 2014-15, the number was 55,700.

That’s a stark decline, but the numbers are starting to tick up — slowly. Still, no one expects them to soar anytime soon, meaning this has become a new normal across the country — with a few exceptions, like Harvard, which will always have its pick of top applicants.

One reason for the enrollment drop was a declining job market for lawyers, one that began before the Great Recession but accelerated quickly after the 2008 financial crisis. By 2012 or 2013, graduates were finding it very difficult to secure positions right out of school.

To be honest, we were probably making too many lawyers for too long. In the good old days, we just kept saying, ‘we’ll take you; we’ll teach you law,’ but there weren’t necessarily enough jobs for those people. Then, in the Great Recession, people were graduating into an economy that was close to failing. Not only were there no jobs, but existing jobs were being eliminated. Those new graduates were devastated.”

“To be honest, we were probably making too many lawyers for too long,” Gouvin said. “In the good old days, we just kept saying, ‘we’ll take you; we’ll teach you law,’ but there weren’t necessarily enough jobs for those people. Then, in the Great Recession, people were graduating into an economy that was close to failing. Not only were there no jobs, but existing jobs were being eliminated. Those new graduates were devastated.”

That job-market crisis has alleviated significantly, if only because fewer students are seeking a career in the legal field, and law schools — again, with a few, high-profile exceptions — have been forced to contract.

“We can engage in magical thinking, wanting to bring back the good old days, or we can be realistic,” Gouvin told BusinessWest. “The market is saying fewer people want to go to law school. If you’re not Harvard or Georgetown, you have to take that reality into account.”

Just before Gouvin became dean in 2013, the school launched a strategic plan to assess its current situation amid the national enrollment crisis, and where it needed to be given that environment. Part of WNEU’s strategy focused on giving students more return on investment, including a tuition freeze, instituted during the 2013-14 school year and extending through 2017-18.

“A lot of our competitors didn’t do that, so we have essentially cut tuition by not raising it,” he said. “We’re 15% to 20% lower than Quinnipiac, Suffolk, and New England Law, so we’re producing on that end of return on investment.”

The school has been generous with scholarships, too, he said, so its $39,400 annual tuition actually translates to an average of $21,000 per student. “That’s is a pretty darn good deal today.”

With the lowered revenues, of course, WNEU had to keep a close eye on expenses, and it was able to shrink staff through retirements, so that the school, staffed for 550 students when Gouvin arrived, is now staffed for 300 — a notable contraction, he said, but typical of what’s happening across the country.

“With some smart planning on the expense side, we figured out how to offer the same programs with fewer people,” Gouvin said. “As the student body contracted, we needed fewer teachers. One concern some alums might have had was replacing tenured faculty with adjuncts, but that’s not true; since I’ve been here, we’ve had 32 adjuncts a year, all teaching upper-level electives. The core programs are taught by full-time, tenured faculty members.”

The school has also tried hard to avoid unnecessary debt to keep overhead down, he added. “There’s a lot of competition out there to build these incredibly beautiful, palatial buildings, but I don’t have that hanging over my head. I have staff and program expenses, but I don’t have huge debt service.”

Still, keeping tuition down by reducing expenses is only one way to provide that much-discussed ROI that today’s law students crave. The other is to give them more of what they need to secure employment, and on that front, WNEU hasn’t let them down.

Case Studies

For instance, the school has added new programs, some of them to attract students who aren’t necessarily looking to pursue a career practicing law. Such initiatives include a master of laws and letters (LLM) degree in estate planning and elder law, introduced in 2004. More recently, the school added a master’s-degree track in the same discipline.

“We identified that need early on, with the population aging, and a lot of wealth still to be transferred from Baby Boomers to their kids,” Gouvin explained. “We’ve been in a good spot with the elder-law and estate-planning programs we’ve offered, and have expanded them.”

Another focus has been on what Gouvin calls student-centered professional education.

“Student-centeredness is in the water here. I think the students care about each other and have the chance to get to know their professors pretty well. They have an incredible support system, very customer-friendly, problem-solving-oriented,” he explained. “I can’t take credit for that; it was already part of the culture. It’s a real selling point for Western New England.”

But he has led efforts to “up our game” in that area, particularly through the use of clinics — in areas such as criminal defense, criminal prosecution, elder law, and immigration (the latter in cooperation with Community Legal Aid), in which students blend classroom instruction with work on real cases, under the guidance of local attorneys.

The newest clinic centers on family-law mediation. “We’re the only school in the Commonwealth working with the family courts. It’s groundbreaking, and we’re quite proud of it.”

In fact, Gouvin said, about 88% of all students get involved in clinics and externships, understanding the value of developing not only real-world legal knowledge, but the soft skills that will make them more employable.

WNEU School of Law

Eric Gouvin says WNEU School of Law has raised its game by adding new programs and clinics aimed at giving students real-world experience.

In making these community connections, Western New England benefits from its position as the only accredited law school in the Commonwealth west of Greater Boston, Gouvin noted. This uniqueness ensures a broad range of opportunities in the form of internships and clerkships.

“That’s one of our strengths; we have many quality placements with federal judges, state courts, law firms, nonprofits. It’s not like we’re competing with six other law schools to get those spots. And it’s the kind of experience employers find valuable and relevant. For a small school, we nail that.”

I’ve got a police officer, an HR person, a computer tech person, an insurance guy who does construction litigation … none of those want to be practicing lawyers, but they see they can be more effective in their roles by knowing more about the law. A lot of people out there realize law is handy, even if they don’t want to be lawyers.”

WNEU School of Law has also expanded its appeal by launching a master’s degree in law for students who have no intention of becoming lawyers, but who take classes alongside juris doctor students to develop an expertise in legal matters to bring to their chosen career, be it accounting, insurance, banking, journalism, fund-raising, or any number of other disciplines.

“I’ve got a police officer, an HR person, a computer tech person, an insurance guy who does construction litigation … none of those want to be practicing lawyers, but they see they can be more effective in their roles by knowing more about the law,” Gouvin said. “A lot of people out there realize law is handy, even if they don’t want to be lawyers.”

Meanwhile, dual-degree programs like WNEU’s JD/MBA aim for the same type of cross-disciplinary expertise. “It’s never just law; it’s always law and something,” he said. “For students to gain knowledge in their fields and marry that with a law degree, I think that can give them a boost.”

After all, he added, “it’s hard to imagine any aspect of human activity that doesn’t have a legal component to it. We’ve never made less law; we’re always making more.”

Making an Appeal

That simple truth will always provide a stream of young people interested in practicing law, even if that stream has weakened in the new millennium.

“The market four years ago was in shambles, and we’re seeing that it has come back — not to where it was prior to the Great Recession, but it’s probably more sustainable now,” Gouvin told BusinessWest. “The good news is that Western New England and just about every other law school have contracted; instead of pumping 200 graduates a year into a market that can’t absorb them, we’re now graduating 100 into a market that can absorb them.”

Academically, the school must be doing something right, he added, noting that, despite a recent preference for applicants with high GPAs over high LSAT scores, WNEU ranks fifth in the state on percent of students passing the bar, behind only Northeastern, Harvard, Boston University, and Boston College. “That’s with students whose LSATs would have predicted they’d have trouble with the bar.”

Furthermore, Gouvin expects graduates’ job prospects — and, as a result, interest in a law degree — to increase as older lawyers, whose assets were battered by the Great Recession and may have postponed retirement because of it, start seriously considering life after law.

“Many waited until housing and the stock market recovered,” he said, “but now, it may be that more folks see their way clear to retiring.”

At the same time, he was quick to add, the industry is changing, and retiring lawyers won’t be replaced by the same number of newcomers. Technology has reduced some of the workload for attorneys, while paraprofessionals are performing many of the duties lawyers handled a generation ago.

“That being said, there should be a net outflow from the profession,” he went on. “The median age of lawyers has been increasing for the past two decades.”

In other words, the future seems bright for WNEU, which started in 1919 as the Springfield branch of Northeastern, holding classes at the YMCA on Chestnut Street.

“Like I tell alums, we’ve been here 100 years, and we’ll be here another 100 years,” he said, and that’s plenty of time to cultivate new relationships between students and the legal community they one day hope to work in.

He cited a survey UCLA conducts each fall with its incoming freshmen, asking them what they want to do with their lives. Since 2000, the percentage saying they wanted to practice law has been on the decline, from 5.2% in 2000 to a recent low of 3.2%. But in the past two years, the number shot back up. It’s just another data point, Gouvin noted, to encourage those, like him, who are invested in the legal profession.

“Again,” he said, “these are hopefully signs not only that people think going to law school is a good idea, but that going to law school actually is a good idea.”

Joseph Bednar can be reached at [email protected]

Law Sections

Foreign Affairs

By Marylou Fabbo, Esq.

Marylou Fabbo

Marylou Fabbo

Although a new version of the Form I-9 became mandatory only earlier this year, on July 17, 2017, the U.S. Citizenship and Immigration Services issued yet another revised Form I-9. On Sept. 18, 2017, use of the new Form I-9 will be mandatory, but employers who want to do so can start using it now.

For many companies, a new I-9 presents a new opportunity to make an I-9 error, and those errors can be costly. Just using the wrong version of the Form I-9 can subject an organization to fines or penalties. On top of that, U.S. Immigration and Customs Enforcement (ICE) interprets its regulations to allow a fine for every single error on an I-9, and it may fine a company based on the percentage of I-9s that have errors.

I-9 Audits Are on the Rise

Form I-9 audits often begin with ICE’s unexpected visit to the workplace with a demand to see the company’s I-9 file. Along with increased focus on immigration enforcement, it is anticipated that ICE will increase Form I-9 administrative audits, making it more likely that a wide variety of employers will be subjected to an audit.

The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.”

Fines for knowingly hiring an unauthorized alien can be more than $20,000 per person, and fines for improper completion of the form can range between approximately $200 and $2,100. The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.

Buffalo Transportation Co. made copies of employees’ identifying documents required to complete their I-9s but did not actually complete the I-9s in a timely manner, resulting in a $75,000 fine. Panda Express recently paid $600,000 to settle claims that it discriminated against immigrant workers when verifying them for employment. Panda Express is alleged to have required immigrant workers to provide documents that they were not legally obligated to provide and also made some immigrant employees re-verify their work eligibility even though they were not required to do so.

The use of the newest Form I-9 is designed to help employers eliminate errors, but will provide employers with fewer reasons to complete it incorrectly.

Should Your Company Conduct a Form I-9 Audit?

I-9 errors are very common. It is not unusual for employers and employees to speed through the hiring paperwork. Companies should take a look at a few of its I-9s. Errors that might be discovered may be as simple as an employee reversing his or her first and last name or forgetting to date the form. An employer may neglect to insert the first day of employment, which, prior to the newly revised form, was easy to do because the request for the date was among other text, making it easy to miss. It is also not uncommon for the company’s authorized representative to sign but not enter his or her title, name, or the date.

More serious (yet just as easy to make) errors relate to verification documentation. Frequently, employers do not enter an acceptable List A document or acceptable List B and List C documents. On the other hand, some companies have both A and B or C documents, which is also an error. Something as simple as not entering the document title, issuing authority, number(s), or expiration date for the documentation presented can be costly.

So, take a look at your audit files. Is every section that needs to be completed fully and accurately completed? Is Section 1, the section the employee is required to fill out, complete, dated, and signed? Does your authorized representative know the difference between a lawful permanent resident and an alien authorized to work? Is the Employer’s Section, Section 2, completely filled out? Does the List A document or the List B and C documents section contain all information, including the Issuing Authority? Are photocopies of the documents the employee presented attached, and, if so, why?

If you find even a few incorrect I-9s, you should conduct a full Form I-9 audit. If you are not knowledgeable about I-9 requirements, you should consider working with an attorney to conduct the audit and provide confidential legal guidance on how to correct them.

An employer could also get into trouble for incorrectly fixing the error. ‘Correcting’ an I-9 incorrectly defeats the purpose of an audit. While an internal audit does not insulate companies from penalties for violations, an audit that accurately identifies problems can provide guidance for employers going forward.

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]

Law Sections

Winning Attitude

Raipher Pellegrino

Raipher Pellegrino

Its marketing materials are emblazoned with the phrase ‘for the win.’ But at Raipher, P.C. — the law firm Raipher Pellegrino founded in 1994 and put on the map with a series of high-profile victories — the end result is only part of a successful case. Just as important, Pellegrino notes, is helping clients, who are often suffering through the worst crisis of their lives, navigate the legal system and get back to some semblance of normalcy. That, in itself, he says, is also a win.

Raipher Pellegrino may be best-known for winning a handful of high-profile court cases. There was his defense in 2002 of a man accused of breaking into a UMass dorm room with attempt to rape, arguing — successfully — that the defendant was sleepwalking. Then, as a plaintiff’s attorney, he secured a $6 million settlement for the family of a woman killed when a Big Dig tunnel collapsed on her car in 2006.

Such cases may not represent the day-to-day work of Pellegrino and his team of attorneys at Raipher, P.C. in Springfield, but they did help raise his profile, which is why he works on cases for clients nationally.

“It’s a matter of being able to prove results year in and year out, on complex, oftentimes high-profile cases, which can be more difficult to handle because you’re worried about not just the legal aspect, but the public-relations aspect of the case,” Pellegrino told BusinessWest.

Perhaps most recognized as a personal-injury firm, Raipher also focuses on criminal defense, family law, and general business law, from commercial transactions to business litigation and everything in between. Pellegrino also has a special interest in charter schools, a model he supports, and has represented them in matters ranging from financing to litigation.

When he launched his firm in 1994, “the original concept was personal injury and criminal litigation, but not so much on the transactional side. We’ve evolved since then,” he said, noting that the firm currently boasts 12 attorneys.

In any case, success isn’t measured only in decisions and settlements, he explained, but in meeting the myriad needs of clients who are often dealing with life-changing situations.

“When someone is in a circumstance where they need a lawyer, it’s a moment of anxiety. Our goal here is that they should feel less anxious after they contact us,” said Sean O’Connor, who joined the firm 18 months ago in a management capacity, overseeing the case loads of each attorney and handling marketing and other non-legal aspects of the business, in an effort to modernize the practice.

SEE: List of Law Firms

“We go up against some of the largest forms in the U.S. and the world, with over 1,000 attorneys,” Pellegrino added. “They’ll attempt to bury you with process, putting five or six lawyers on the case and sending documents 24/7. The modernization of the practice on the intellectual side and also in workflow is important; it allows us to take on large firms from right here in Western Mass.”

For this issue’s focus on law, BusinessWest sat down for a candid chat with Pellegrino and O’Connor about how they take on those challenges — and why the process of resolving each case is as important as the end result.

Sean O’Connor

Sean O’Connor says much of the firm’s business comes from client referrals, which he considers “a real compliment to an attorney.”

Sweet Relief

Personal injury is a broad field in itself, encompassing car accidents, product liability, medical malpractice, slip-and-fall injuries, and workplace injuries, just to name a few. Pellegrino cited a recent, complex case with multiple defendants, in which the plaintiff was killed in a manufacturing plant.

“We brought suit against the company that designed the machine and the employer, and we were able to settle that for several million dollars despite having serious legal obstacles which could have precluded an award to the plaintiff,” Pellegrino said, including a state workers’ compensation statute that throws up barriers to suing employers. “We were able to navigate around those issues and resolve that case.”

The defendant was a Boston-based company, and his sole heir lived in Puerto Rico, but despite the presence of many large personal-injury firms in the Boston area, the plaintiff sought out Raipher, an example of the firm’s reputation for handling difficult cases — work that begins with the first meeting with the client.

“We don’t try to sell the firm; we try to educate people. We believe education is the building block of what we do,” he explained, likening it to a different kind of major life event. “If you’re going in for surgery and have no concept what the surgery is about, what the process is, it can be frightening to go through it because of the fear of the unknown. Well, nobody prepares for an accident; you don’t wake up and say, ‘I might have an accident today.’ But if you have a law firm in mind, and you know they’ve been through it time and time again, and they can walk you through the process, it takes some of the fear away.”

The firm uses the motto ‘for the win,’ but Raipher Pellegrino emphasizes that the process of finding relief, restitution, or justice is as important as the end result.

The firm uses the motto ‘for the win,’ but Raipher Pellegrino emphasizes that the process of finding relief, restitution, or justice is as important as the end result.

And monetary restitution isn’t the sole goal, he added. “We also want to let them get on with their lives. They may be out of work, have loss of income, physical pain; that’s what they should be focused on, getting better and back to life as quickly as they can. We routinely tell clients, ‘let us do our job and make your life easier.’ And if we can make the process more understandable, that’s part of our job — not just getting a monetary settlement.”

Pellegrino said his firm has built its client base organically. “We have generational clients, we’ve been referred by clients’ family and friends, and we’ve had referrals from attorneys, not just in Western Mass., but around the country. I’ve had jurors hire me.”

That makes sense, he added, since jurors have a front-row seat to how an attorney works. If one is impressed and, down the road, has a need for a lawyer, they’ll remember what they saw in court. “That feels good, when people appreciate you and want to hire you. We take pride in our work and in delivering a good product.”

Added O’Connor, “the greatest complement we get here is client referrals. Raipher has clients he’s known for 20 years who still refer people to us. That’s a real compliment to an attorney, to have the confidence of past and current clients.”

To earn that confidence, Pellegrino said, his team is dedicated to staying educated on all facets of the law they handle. “A doctor doesn’t stop reading about new surgeries. We’re constantly adapting to changes in the law, whether regulatory or statutory.”

When asked whether the regulatory landscape has become more burdensome over the past decade or so, he said many lawyers would say yes. “And that certainly requires a broader spectrum of knowledge to litigate a claim.”

But some changes have been beneficial for attorneys, he added. For instance, only recently have lawyers in Massachusetts been allowed to ask potential jurors specific questions during the voir dire process, allowing them to dig into biases — whether conscious or subconscious — and establish their best opportunity to ensure a level playing field. In addition, lawyers can now demand a specific award amount at trial, which can make it easier to demonstrate the value of an injury, loss, and suffering to a jury.

And jurors take these matters seriously, Pellegrino said, noting that, while people often feel hesitant when summoned to jury duty, once they’re empaneled, they tend to embrace their responsibility. In fact, he noted, jurors are often frustrated they can’t get more information, though there are good reasons behind the rules for which pieces of evidence can be entered into the record and which can’t.

He recalled one criminal-defense case that fell apart for the prosecution during cross-examination and was quickly settled. “The jury waited for me outside the court to talk to me; they wanted to ask about more underlying facts of the case. It shows how they’re engaged, and they take it seriously.”

For the Win

Pellegrino certainly takes his work seriously, even though personal-injury law often suffers from negative perceptions in society.

“The only way our society knows how to compensate someone for a civil loss is monetarily,” he said. “One of the best mediators in the country likes to ask, ‘if I could give you your leg back or offer you $100 million, which would you take?’ Inevitably, the person says, ‘I’d want my leg back.’ So it’s clear no amount of money can adequately compensate for your leg.”

I tell everyone, ‘don’t go into the practice of law for money. It serves society in many ways, and if you put your heart and soul into it, it’s one of the most gratifying professions you can have.”

As a result, he went on, it can be difficult to put the value of a death, injury, or physical loss in financial terms. “It’s constantly evolving, and so many factors go into it. In every case, those factors change. There are different ways to value it and monetize it. It’s not simply, someone gets in an accident and makes a demand, and you give them that money. It’s far more complex.”

O’Connor said he often finds himself explaining this concept at dinner parties. “People often don’t want to bring a lawsuit because there’s a stigma. But there is literally no other way to compensate you for someone else’s wrong. It’s not your stigma. Someone else’s negligence caused you harm. So the stigma is unfortunate.”

But Pellegrino sees the value of his work in the lives of his clients, and doesn’t worry about public perception.

“I tell everyone, ‘don’t go into the practice of law for money,’” he told BusinessWest. “It serves society in many ways, and if you put your heart and soul into it, it’s one of the most gratifying professions you can have.”

The emotions cut deep in both wins and losses, he added. In the Big Dig case, he recalled being happy for the plaintiff, who wouldn’t get his wife back, but could at least move on with his life having received some compensation and an assurance that it wouldn’t happen to someone else.

Then, in a criminal-defense case, “you can lose the case, and the client is going away to be incarcerated for 10 years, and they’re thanking you and hugging you and telling you how appreciative they are of your effort,” he said. “That’s an odd feeling. But at the end of the day, you’re not going to win every case, but if you put your heart and soul into it, the client knows that. They know you can’t guarantee an outcome.”

O’Connor agreed, adding, “you feel like you disappointed them, even though they’re clearly expressing gratitude. Clients can tell whether you’re phoning it in or doing the best you can for them.”

Still, every lawyer wants to win — which is why Raipher, P.C. uses the phrase ‘for the win’ in its marketing materials.

“I tell people, ‘you almost have to hate losing more than you like winning,’” Pellegrino said. “And if I lose, I’ve got to know that I did everything I could for the client.”

Joseph Bednar can be reached at [email protected]

Law Sections

Tiny Homes, Big Questions

By Jeffrey L. Adams

Jeffrey Adams

Jeffrey Adams

Tiny homes are efficient, cost-effective, and environmentally friendly. Generally speaking, tiny homes are defined as residential dwelling units measuring 400 square feet or smaller. As a result of their benefits, tiny homes are soaring in popularity both locally and nationally.

With a blossoming tiny-house market, however, comes increasing uncertainty due to the vast landscape of complicated legal issues facing prospective owners of such homes. This article is not designed to be an exhaustive list of every imaginable legal issue facing a prospective tiny-home owner. As outlined below, there are a wide array of potential issues facing the building or purchasing of a tiny home. Some of those issues may apply to the building of a tiny home, some to the purchasing of a tiny home, and many others to both construction and sale.

The first concern prospective tiny-home owners must contemplate is whether the purchase and sale of their tiny home is governed by common contract law or the Uniform Commercial Code. Tiny homes are commonly built on either a foundation or a trailer. This distinction dictates which law applies. Article two of the Uniform Commercial Code governs the sale of “goods” that includes “all things … which are movable at the time of identification to the contract of sale.” Accordingly, if your tiny home is built on a trailer, it is “movable” at the time of identification of the contract and governed by the Uniform Commercial Code. Any tiny home, however, built on a foundation will be governed by common contract law, similar to most residential homes. It is imperative to determine which law applies prior to entering into a contract to ensure a smooth purchase or sale of your tiny home.

The next issue for prospective owners is whether the land on which you intend to place your tiny home is zoned for such use. Massachusetts General Laws c. 40A permits local governments to enact zoning ordinances and bylaws which regulate how landowners may use their lands. Currently, Nantucket is the only municipality in the Commonwealth that has permitted tiny homes to be placed legally on land that already includes one residential dwelling. Unfortunately, most municipalities are likely to restrict residentially zoned plots to one dwelling, which will present significant legal issues for tiny-home owners seeking to place their homes legally.

One way tiny-home owners nationally are trying to circumvent such zoning restrictions is through a request to their local government permitting a tiny home as an accessory dwelling unit (ADU). This is a clever mechanism that permits a second dwelling on a zoned plot; however, municipalities tend to enact such bylaws only where the second dwelling is attached to the primary residence. The legislative purpose of permitting ADUs is to create a cost-effective alternative for the elderly. Therefore, many municipalities may be hesitant to allow tiny homes as ADUs where such homes are not connected to the principal residence.

In addition to the Zoning Act, tiny-home owners must be cognizant of the building code, which regulates how one may build their tiny home. See 780 Code Mass. Regs 1.00, et. seq., and model regulations cited. The building code is enforced by the state, and any local zoning ordinance or bylaw may not interfere with the implementation of the building code.

The building code poses yet another challenge for prospective owners. The state requires that the code govern the building of any residential dwelling used for the permanent provisions of living, sleeping, eating, cooking, and sanitation. Accordingly, prospective owners, especially those building their own home, must comply with the building code.

Finally, prospective owners must adhere to the Department of Public Health’s regulations regarding dwellings that are fit for human habitation. See 105 Code Mass. Regs. 410.000, et. seq. For example, the regulations require that every dwelling unit must contain at least 150 square feet of floor space for one occupant, and 100 square feet of floor space for each additional occupant. These numbers may be difficult to achieve for prospective owners, especially families with the intent of going tiny.

The laws and regulations governing tiny homes, as currently constituted, were written and implemented by principally considering the purchase and sale of residential dwellings that were affixed to a foundation and were large enough to comply with all of the state’s building and health requirements. Tiny homes pose a challenge, not only to the prospective owners of such homes, but also to our local and state governments.

Ultimately, a primary tiny-home market will erupt once a secondary market forms for such homes; however, this impending growth will not occur if our local and state governments do not adapt. Perhaps the proper method to govern tiny homes is by subjecting such homes to the same laws and regulations in place for recreational vehicles and mobile homes, rather than creating a new, complicated framework of laws specifically designed for tiny homes.

One thing is certain: tiny homes present enormous potential rewards for sustainable, economic living that can help ease the dearth for affordable housing. The question remains: will our laws dictate such an outcome?

Jeffrey L. Adams is an associate with Robinson Donovan, P.C., where he concentrates his practice on litigation; (413) 732-2301; [email protected]

Law Sections

Taking It Personally

By John S. Gannon, Esq.

John S. Gannon

John S. Gannon

As a management-side employment attorney, I know how frustrating it is for businesses to be sued by current or former employees. Employers who have been through the litigation process know it’s a stressful, time-consuming exercise that often requires their managers or supervisors to be deposed or called as a witness at trial.

Unfortunately, being a witness is not the worst outcome for managers and supervisors who get dragged into employment litigation. Many state and federal employment laws provide a path for litigious employees to individually sue their managers or supervisors, while at the same time suing the employer as a completely separate entity. These laws can put managers and supervisors in the dreadful position of having to personally defend themselves in a lawsuit, while exposing their personal assets (home, car, bank accounts, etc.) to risk if the plaintiff is successful. It also means having to pay defense costs and attorney’s fees regardless of how the case turns out. A recent Massachusetts federal court decision highlights the relative ease of bringing an individual liability claim against a supervisor in an employment lawsuit.

Elliott Eichenholz worked for Brink’s Inc. His supervisor was Gordon Campbell. According to Eichenholz, while he was out on a disability leave, Campbell issued him a performance-improvement plan (PIP) letter addressing Eichenholz’s performance deficiencies. The PIP letter also contained various demands Eichenholz would need to meet within a prescribed time frame.

Eichenholz returned to work about two months later. Upon his return, Campbell e-mailed Eichenholz, stating that he needed to develop a plan to address the issues raised in the PIP letter now that he was back to work.

From my perspective, Campbell’s approach appeared reasonable enough, but Eichenholz did not see it that way. He resigned a few days later and subsequently filed a lawsuit claiming that Brinks and Campbell discriminated and retaliated against him in violation of a host of federal and state employment laws, including the federal Family and Medical Leave Act (FMLA) and the Massachusetts Fair Employment Practices Law, which prohibits discrimination in employment (Chapter 151B). In his complaint, Eichenholz claimed he needed to resign “in order to ensure that he was no longer subjected to unlawful harassment, no longer subjected to a hostile work environment, and no longer in the precarious position that Campbell’s continuous violations and discriminatory behavior had caused.”

Campbell moved to dismiss the charges against him, raising two principal arguments. First, he argued the FMLA claim should be dismissed because that law does not allow for individual liability. Second, he contended Chapter 151B warranted dismissal because Eichenholz did not follow the proper procedural channels before filing that claim.

The court rejected both arguments. Although the FMLA does not expressly allow for individual liability against supervisors, courts have ruled that similar federal laws — including the Fair Labor Standards Act — permit personal liability against supervisors. This was enough to convince this court that FMLA liability could flow to Campbell. Also, because Campbell was on notice of the potential Chapter 151B claim early on, he could not rely on technical procedural errors to defeat the individual liability claim.

Because the Massachusetts anti-discrimination statute (Chapter 151B) allows for individual liability, supervisors can be personally sued in almost any lawsuit that alleges a violation of state anti-discrimination law. In addition, state and federal wage-payment laws, including the federal Fair Labor Standards Act and the Massachusetts Wage Act, can trigger individual unpaid-wage liability for certain executives, officers, and even managers within the organization.

In light of this vast potential for supervisor liability claims, we recommend litigation-avoidance training for managers and supervisors as a way to mitigate risk. Effective training is probably the single best way to combat individual liability exposure, as it puts managers and supervisors on notice of this very real threat. Training programs also highlight tips and strategies that managers and supervisors can use to avoid litigation crosshairs and keep the company out of expensive lawsuits.

If your manager or supervisor is sued individually, it may also be (somewhat) comforting to know that individual liability claims are often a strategic move meant to make the case more difficult to defend. It is rare — but not unheard of — that a manager or supervisor is left paying damages associated with an adverse judgment, rather than the business. Even so, adequate training can help prevent employment claims before litigation is filed, which is a win-win situation for both the supervisor and the company.

John S. Gannon is an associate attorney with Skoler, Abbott & Presser, P.C., a management-side labor and employment firm with offices in Springfield and Worcester.

Law Sections

Firm in Its Commitment

Ken Albano, Bacon Wilson’s new managing partner

Ken Albano, Bacon Wilson’s new managing partner

Ken Albano, the recently named managing partner at Bacon Wilson, said the firm has a simple yet quite complex challenge — to achieve growth and further stability simultaneously. It is addressing this assignment through a number of initiatives, including the opening of a new, larger facility in Northampton, creating a presence on Route 9 in Hadley, and continuing to pursue opportunities to bring the firm’s name and reputation to more communities.

Ken Albano has what would have to be described as a very diverse practice, one that covers a large amount of territory — geographically, within the broad realm of the law, and in societal matters as well.

To get his point across, he relays a story that one can surmise he’s told quite often over the years.

“One day, I was in a meeting concerning a multi-, multi-million-dollar acquisition in one of our largest conference rooms in Springfield,” he told BusinessWest, referring to the downtown headquarters of Bacon Wilson. “Back in those days, the accountants would show up, the insurance people would show up, the bankers would show up, and you’d have 15 people in a four- or five-hour closing trying to get a deal done. And at that particular closing, I had to leave early to go handle a dog-bite hearing in Monson.

“That was a reality check,” the Springfield native went on, adding that this happened not long after he was appointed town counsel for that small (population 8,700) town in the eastern corner of Hampden County. “I went from one end of the spectrum to the other, and quickly. But it’s been a blessing ever since; I really enjoy my municipal work, and we’ve grown that side of the business.”

Today, there are still dog-bite hearings, in Monson and also Southwick and Holland, the other communities he serves as counsel, but there are also contract negotiations, conservation matters, cell-phone-tower location hearings, and a host of other matters. And there are still multi-, multi-million-dollar deals to handle in the business and banking and finance practices at the firm — although there are fewer people in the room these days.

But now, there are still more matters on Albano’s plate vying for (and consuming) his time and attention. Indeed, he recently succeeded Steve Krevalin as managing partner of the 122-year-old firm, a role that comes with a number of responsibilities.

Such as finding a new, larger, and in all ways better location for the firm’s offices in Northampton. Which explains why he was on Center Street in that community, giving BusinessWest a tour of that work in progress, which will eventually house seven lawyers and represent a significant upgrade, facilities-wise, from the present quarters on Trumbull Road.

Also on his responsibilities list is forging a new affiliation — similar in many ways to the one struck with the firm Morse & Sacks in Northampton to give the firm a real presence there — with the Law Office of Alfred Albano (no relation to Ken) in Hadley. (More on that merger later.)

This initiative gives the firm a Route 9 address, and the visibility that comes with it, in a bustling town often overshadowed by the communities it borders — Northampton and Amherst (more on that later).

Beyond these strategic developments are the more day-to-day, but no less important matters involved with being managing partner, he said, noting these include everything from interviewing candidates for open positions (the firm has one at present) to coping with a changing legal landscape and constant pressures from a wave-riding economy.

Times are relatively good at the moment, he explained, but things can change in a hurry, and downturns, especially one like the one that started roughly a decade ago, can seriously impact a firm.

Overall, many firms have become smaller in recent years, said Albano, adding that Bacon Wilson has remained relatively steady while continuously exploring new opportunities for further growth and stability.

For this issue and its focus on law, BusinessWest talked at length with Albano about his practice, his expanded duties at Bacon Wilson, and the broad strokes within the firm’s business plan moving forward.

Building His Case

Albano said he finds municipal work quite intriguing, for a number of reasons, one of them being that he’s working with a constantly changing cast of leaders and different forms of government.

“I’ve grown accustomed to working with select-board members over the years; every three or four years they shuffle the deck, and someone new gets elected,” he explained. “And you’re serving under a different leadership form for each municipality, which has been interesting as well.

Ken Albano stands outside

Ken Albano stands outside the future home of the firm’s Northampton office on Center Street.

“I always say, and I tell the selectmen this as well, that there always seems to be one member who has common sense,” he went on, referring to what are generally three-member boards. “There’s one who’s kind of a hothead who doesn’t really think before he or she speaks, and there’s always one rookie who generally stays quiet and learns the ropes. That’s been the pattern, generally, and it’s always … always interesting.”

And it’s also a long way from downtown Hartford, which is where Albano essentially started his career, working in the tax division at Arthur Andersen, then one of the Big 8 accounting firms in the country, and the one that famously self-destructed through its involvement in the Enron scandal.

Albano said his work at the firm wasn’t really to his liking — “they were trying to convert their tax division into a team of tax attorneys, and I wasn’t doing as much legal work as I wanted to” — but there was more to his decision to return to his roots in 1988 than that.

“When I was working in Hartford in the Gold Building, I’d walk out in my navy-blue suit, white shirt, and red tie and feel like a robot,” he explained. “Everybody on the street had the same outfit on, and I didn’t know anyone; I didn’t get that hometown feeling working in Hartford.

“When I came back to Springfield in the late ’80s, I could walk to lunch from State Street and run into five or 10 people on the street who would say ‘how’s your mom and dad?’ or ‘how’s your brother or sister?’ or ‘say hello to this person or that person.’ There’s a real hometown feel to Springfield, and that’s a big reason why I’ve stayed at Bacon Wilson ever since.”

And over the past three decades or so, he has, as noted earlier, greatly expanded and diversified his practice to include work in a host of areas, including business/corporate, healthcare, banking and finance, and municipal.

With that last specialty, he started in Monson, where he settled after returning to the area, in 1993, and added Southwick in 2002, Holland in 2011, and Wales in 2015.

Albano said he was approached by Krevalin toward the end of 2015 about succeeding him in the role of managing partner, a transition agreed to by the other partners at the firm. The two essentially co-managed the firm in 2016, and Albano took the reins officially this past January.

“It’s been exciting — and challenging,” he said of the new role and the process of assimilating its various responsibilities into everything he was already doing. “I’m still practicing law 100%, which I’m expected to do, but I’m also getting pulled in a lot of different directions.”

By that, he meant both points on the compass and a host of management roles, many of which he was not really involved with, such as personnel.

The main direction he’s been pulled in geographically is north, where he’s essentially closing two deals that will give the firm a larger, stronger presence in Hampshire County.

Elaborating, he said many Springfield-based firms have what would essentially be called satellite offices in Northampton and maybe Amherst. These would be small facilities with a phone and conference room that would be used for closings and other meetings several times a month. But Bacon Wilson has gone further, establishing affiliations with existing practices with matching philosophies, and putting both names on the door and the letterhead.

It did this in 2005 with the firm Morse and Sacks in Northampton, and in 2006 with the firm Monsein and MacConnell in Amherst.

“With these affiliations, these lawyers came on as basically employees of the firm,” he said of the Amherst and Northampton mergers, as they’re called officially. “In time, their practices molded into the fabric of the firm, and to this day, you probably couldn’t remember when they started with us, because it feels like they’ve always been with us.”

In Northampton, he said, the firm will take its presence to a higher level with the new facility on Center Street, a building that was being built out for yet another new restaurant in a community known for its abundance of them. Those plans never materialized, so the blueprints were altered dramatically to accommodate a law firm instead.

Bacon Wilson’s lease was due to expire in Northampton, Albano went on, and was looking at a host of options, including staying put on Trumbull Road, when the Center Street opportunity unfolded.

“I looked at this [Trumbull Road] facility as a whole, and determined that the lawyers, paralegals, and staff that came here on a daily basis were in need of a better working environment,” he explained. “This Center Street location will be state-of-the-art, with all the bells and whistles.”

Meanwhile, the firm has finalized an affiliation agreement with Alfred Albano’s practice, giving the firm a presence starting this week, with the sign saying ‘Bacon Wilson, Al Albano.’

That practice is well-established, but a good bit of work that comes to it must be referred out to other lawyers with expertise in specific matters. “That work will now stay in house,” said Ken Albano, “because we have 40 other lawyers that can help out, and he won’t have to refer it any more.”

As for the bigger picture, Albano said the firm will continue to take steps to give it the size and flexibility needed to weather the various swings in the economy — the recent steps taken in Northampton and Hadley certainly fall into that category — while also looking at further territorial expansion through new affiliations.

“Our goals, simply put, are to achieve growth and stability at the same time,” he explained. “We’re always looking for opportunities to grow the firm; there may be new municipalities in the future that we would target to open a law practice, just as we have in the past.”

Greenfield might become one potential target, he said, noting the growth of small business there, and there might be others as well.

Final Arguments

Albano told BusinessWest he still handles the occasional dog-bite case in the municipalities he serves. They no longer provide a reality check, though, because he’s certainly adjusted to this new reality.

In many respects, he can the say the same about his new role as managing partner as he makes that adjustment as well. He said the many new responsibilities are quite a bit like the practice of law and the business of law themselves — compelling, but also challenging.

The biggest challenge facing Bacon Wilson, and any other firm, for that matter, is managing that task of simultaneously achieving growth and stability. It’s a work in progress, but, as they say in this business, he and the firm are building a solid case.

George O’Brien can be reached at [email protected]

Law Sections

Rule of Thumb

By Marylou Fabbo, Esq.

Last summer, the U.S. Occupational Safety and Health Administration (OSHA) announced a number of regulatory changes that are designed to improve employee safety. For organizations that have not yet taken a look at how the rule may impact their company’s policies and procedures, now is the time to do so.

Marylou Fabbo

Marylou Fabbo

The rule’s guiding principle is that an employer must have reasonable procedures by which employees can “promptly and accurately” report work-related injuries and illnesses without the fear of retaliation, and a policy or procedure that deters an employee from reporting an injury or illness that is not reasonable. Some policies that may discourage employees from coming forward with injury and illness information include drug-testing policies and employee-incentive programs.

Drug Testing and Accident-free Reward Policies Problematic

The rule prohibits non-discretionary, post-accident drug testing. Post-accident testing is not prohibited altogether, but employers’ drug-testing policies must be limited to situations in which the employer has reasonable suspicion that employee drug use likely contributed to the incident.

For example, it would not be reasonable for an employer to drug-test an employee who suffers a repetitive action injury from typing. Also, while not specifically required in the rule, employers who are making a determination as to whether to drug-test an employee should rely on objective evidence of suspected drug use rather than subjective suspicions. In situations where drug testing appears warranted, the testing itself must not be punitive or embarrassing.

For those employers who are required to test under certain federal laws, such as U.S. Department of Transportation regulations, continued automatic post-accident testing is likely permissible. Still, employers should check with counsel to confirm that their policies are in compliance with the new rule.

What about rewarding employees for accident-free days? Many employers believe rewards and recognition are strong employee motivators. While the new rule does not prohibit incentive programs altogether, employers cannot maintain incentive programs that might encourage an employee not to report an injury. For example, an employee who is eligible to receive a bonus when the organization reaches a set number of accident-free days might be deterred from reporting an injury that would bar the employee from receiving that compensation.

So what’s an employer to do? They should design incentive programs to encourage employee participation in making the workplace a safer environment rather than from discouraging employees from reporting accidents and injuries.

Required Written Reporting Procedures

The rule also imposes some affirmative duties upon employers. They are required to establish a reporting procedure that does not deter or discourage the reporting of a work-related injury or illness. The procedure cannot be unduly burdensome for the employee and should allow reporting through various means, such as phone, e-mail, or in person. It also must provide employees with a reasonable amount of time to report rather than immediately.

Additionally, employers must let their employees know that they have a right to be free from retaliation. Employers can meet the rule’s requirement that they provide notice to employees by posting OSHA’s “It’s The Law” employee-rights poster in the workplace or by drafting policies that include the required language.

What If We Violate the New Rule?

Companies that do not abide by the new rule’s requirements may face legal challenges on multiple fronts. Employers can violate the anti-retaliation provision by disciplining employees for reporting work-related accidents or illnesses, by subjecting them to drug testing when it is not reasonable to do so, or by engaging in a variety of other behaviors that may be retaliatory.

Although it is unlikely that OSHA will inspect your site solely to find out whether you are in compliance, employees can contact OSHA to report retaliatory practices, which may trigger a visit to the workplace and an inspection of hundreds of records. The OSHA Whistleblower Protection Program allows the agency to file complaints against employers suspected of retaliating against employees. Penalties for unlawful retaliation may include repayment for lost wages, compensation for emotional distress, reinstatement of the employee(s), and even punitive damages.

Employers should give careful review to their established procedures for reporting work-related injuries and illnesses and revamp them if necessary to ensure that they are reasonable. Employers who drug test after work-related accidents should adopt and enforce drug-testing policies that are consistent with the new rule’s anti-retaliation provisions. Requiring management, supervisors, and human-resource personnel to attend educational programs on how to detect the signs of drug impairment can support an employer’s position that it in fact had a reasonable basis upon which to believe drug use contributed to a particular accident.

Organizations should take a close look at their safety-incentive programs and remove any withholding of incentives based on the reporting of work-place injuries. Companies that are mindful when deciding whether to take an adverse action against an employee based on a work-related injury, and document a legitimate, non-retaliatory business reason for taking that action when they do, are likely to reduce their risk of OSHA citations and/or other legal action.

Marylou Fabbo, a partner in the Springfield office of Skoler, Abbott & Presser, joined the firm in 1995. As head of the firm’s litigation team, she practices in all areas of employment litigation. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employers.

Law Sections

In Defense of Employers

By Jennifer A. Rymarski

Every day, the news bombards us with articles about trends in business, including, but not limited to, the death of the organizational hierarchy, how to foster transparency, the fundamental differences between managing and leading, and in particular, Millennials: how to attract them, how to keep them, and why they are not being compensated enough. Some go so far as to harshly conclude why Baby Boomers and Gen-Xers hate them.

Jennifer A. Rymarski

Jennifer A. Rymarski

My summation is that, with every generational workforce, there are positives and negatives. Yet, the cultural shift that is upon us may feel like a tidal wave to many employers. Undeniably, people are living longer and working longer. A single organization can employ people ranging in age from their 20s to their 70s.

Companies need to innovate from both a mechanical and technical perspective as well as with their culture, and younger generations can help businesses usher in changes. However, businesses still need to be managed appropriately and must continue to operate reliably and dependably to deliver the products and services that generate the revenue needed to keep people employed with comparable benefit packages.

Millennials may be up and coming, but Baby Boomers and Gen-Xers still maintain the majority roles of management, hiring and firing. Employers need to be prepared for the new norms, such as:

• Analyzing if and how to staff your business with flex-time employees and how this may impact existing employees;

• Training and supervising;

• Managing incidents, grievances, discipline, and performance reviews;

• Deciding what benefits to offer and how to implement these benefits;

• Determining how to classify workers;

• Developing and maintaining leadership and team development across all cultures and generations;

• Updating and managing technology;

• Considering business outlooks and implementing change;

• Ensuring the business and its employment practices are in compliance with the law; and

• Mitigating risks and defending against contractual disputes, discrimination, and terminations.

Get It in Writing

Navigating all this can be challenging for all employers, regardless of size or industry. An employee handbook is a must for delineating a company’s expectations, policies, and practices. These handbooks outline the company’s mission statement and can address everything from dress codes and scents in the office to cell-phone and computer policies, vacation- and personal-time accrual, bereavement and other leave, and discipline policies.

While having a handbook is a great way to introduce an employee to the organization, management needs to also be aware of the policies therein and act consistently in accordance with it. This handbook should also be reviewed periodically to ensure it is current with changes in the law.

Another useful tip for employers is to have clearly defined job descriptions, both for advertising purposes and so the prospective employee has a clear definition of the duties and responsibilities of the job, including but not limited to hours, physical or travel demands, whom this individual will report to, and any benefits that may be available.

Establishing a firm training schedule and/or having a training manual can assist all employees (those newer and those more established). With all the new technology available and the demands of the consumer and business clientele, companies cannot continue to rely on the proverbial ‘way it was always done,’ and maintaining open communication about processes and projects on a daily, weekly, monthly, or quarterly basis will not only help the manager define expectations, but will give employees a sense of contribution to something larger than just their day-to-day job.

Benefit packages are typical, yet, given the diversity in the workplace, a one-size-fits-all model may no longer be relevant. Student debt, healthcare, fitness, daycare, and financial well-being are all considerations. The challenge for employers is not only the straight costs of these benefits and related perks, but how to measure the impact of the benefits on the lives of employees and the overall impact to company morale. Seeking the help of a financial advisor and evaluating multiple vendors for benefit packages are recommended. Soliciting feedback about how your employees feel about the organization’s culture can also be a useful and eye-opening exercise.

With respect to grievances and discipline, an established written process for dealing with grievances and investigations is recommended. Likewise, discipline policies — progressive or otherwise — should be well-defined and documented. Performance evaluations are best done on a continual and day-to-day basis, as opposed to stockpiling issues for a year-end review. Documentation and acknowledgement of issues contemporaneous with events is more useful from a legal perspective.

Career Defining

As to more technical legal issues, an organization needs to closely examine how it is classifying its workers — as an employee (who will receive a W-2) or an independent contractor (who will receive a 1099). There has been considerable scrutiny of independent contractors, and the law establishes a standard that presumes employee status and gives the employer an opportunity to rebut the presumption by examining whether the individual is free from the control and direction with the performance of the services, the service is performed outside the usual course of the business, and the individual is customarily engaged in an independently established trade or business of the same nature as that involved with the service performed.

Because of advances in technology, the trend appears to be for more flexible workers and freelancers. However, companies can and do unwittingly expose themselves by misclassifying workers and/or not properly paying wages in violation of the law. Staffing with flexible schedules or freelancers may also pose work-coverage issues, not to mention compensation issues and general frustrations for full-time employees.

Thus, the question of whether flex time can work for your organization and how it can be implemented need to be closely examined. Other legal issues include whether the employee is ‘at will’ or contracted. If an employment contract is necessary, employers need to be mindful of laws that impact contract provisions, such as non-competition, non-solicitation, contract renewal, and contract termination.

If a contract is drafted by the employer, it is construed against the drafter; therefore, having these contracts reviewed and prepared by legal counsel, as opposed to trying to utilize one that was used five years ago with the names changed, is risky. This is particularly important if the employee is exposed to confidential and proprietary information that the employer seeks to protect. Massachusetts recognizes an employer’s interest in protecting its legitimate business interests; however, any agreement containing restrictive covenants needs to be reasonable in scope, time, and geographic area.

In Compliance

When examining a company’s compliance with state and federal laws, employers need to be mindful of everything from the content of their employment application to accommodating workspaces, as well as ensuring there is no discrimination or harassment based on age, gender, sexual orientation, race, or disability. If a business is offering goods and services, it must also comply with laws ensuring access for the hearing- and sight-impaired.

One consideration for employers (including nonprofit entities who have volunteer boards) is for the company to purchase insurance that would cover employment-related matters. With employment-related litigation and jury verdicts on the rise, a policy of insurance may be a worthwhile investment.

The foregoing are just a few of the considerations from a legal perspective that can impact a business. While there are lawyers, organizations, and professional-services firms to help businesses structure and define these crucial aspects of an organization, satisfying the various generational divides that exist in organizations may pose a more amorphous challenge for company leadership. Addressing the legal and quasi-legal management issues on a thoughtful and prospective basis as opposed to a reactionary basis provides the best chance for success and better preparedness to defend against any legally related employment challenges.

Jennifer A. Rymarski is a civil-litigation attorney at Morrison Morrison, LLP who helps businesses navigate through employment-related matters; (413) 737-1131.

Law Sections

Value-added Proposition

Amy Royal

Amy Royal says her marketing strategy has long emphasized providing helpful resources through blogs, newsletters, and seminars.

There was a time when law firms simply didn’t advertise their services; it was considered unseemly. Those days are long gone, and marketing is now an accepted, even necessary part of the business. But for today’s practices, marketing goes well beyond print and radio ads. With the help of the Internet, firms are increasingly getting the word out by writing articles and blogs on important legal issues and connecting with the public through informational seminars — building credibility with the public and possibly creating clients down the road, but adding value for audiences in the meantime.

Generations ago, Michele Feinstein said, the legal profession’s code of ethics was simple when it came to promoting a law firm.

“It was, ‘thou shalt not advertise,’” said the shareholder attorney with Springfield-based Shatz, Schwartz & Fentin. “Then it changed, but it’s still a very regulated thing — the question of what constitutes appropriate advertising.”

To prove it, she dug out a thick volume of Massachusetts Supreme Judicial Court codes and eventually found the professional-conduct guidelines addressing marketing, or, to quote the section title, “Communications Concerning a Lawyer’s Services.”

This two-page-long rule governs appropriate outlets for advertising and what firms can and cannot promise in ads, among other minutiae. Feinstein is right: the rules are much more lenient today, with language conceding the importance of television and print media in reaching the public. But — aside from the more-strident messaging sometimes employed by personal-injury firms — it’s still an industry whose marketing echoes its restrained past.

Michele Feinstein

Michele Feinstein

When I started my practice, we never thought about marketing. Certainly, they never tell you about that in law school. But the practice has had to evolve with the modern-day realities of how people meet and connect, and how they find and talk with their lawyers.”

 

That’s not to say there aren’t other ways to stand out, however.

“When I started my practice, we never thought about marketing. Certainly, they never tell you about that in law school,” Feinstein said. “But the practice has had to evolve with the modern-day realities of how people meet and connect, and how they find and talk with their lawyers.

“Certainly, word of mouth is important, but these days, the modern equivalent is the Internet: search engines, blogs, newsletters, and other forms of Internet presence,” she went on. “That technology didn’t exist 20 years ago.”

Shatz, Schwartz & Fentin has employed the Internet like many other area firms have: not only to get its name out, but to do so in a way that provides value to clients and the public, she explained, such as an online newsletter that focuses on estate planning and elder law, and a blog that addresses issues in myriad areas of the law. Traditional print media is useful too, she said, as seen in the articles the firm writes for BusinessWest and other outlets.

Amy Royal also sees the benefits of a multi-pronged approach to marketing. Her Northampton-based employment-law firm, Royal, P.C., hosts a robust blog; the firm’s attorneys contribute articles to area press outlets (including, again, BusinessWest); and they also conduct seminars and trainings for the public and fellow lawyers alike.

“We stay abreast of developments in the law, both on the federal and state side, and we tailor our trainings as well as our blog posts to making sure our clients stay up to date,” she said. “There are a lot of moving parts, a lot of change happening on the federal side, going to an entirely different administration … on any issue, we want to demonstrate credibility for perspective clients, so hopefully people say, ‘they’re experts in that area.’”

That credibility and recognition often translates into more business, a philosophy shared by Michael Gove, who launched the Gove Law Office, LLC, in Northampton in 2013.

Michael Gove

Michael Gove

I think [our marketing efforts] ensure that we’re top of mind for people. Then, when someone has a legal issue, they may think of us, because they saw us recently in the paper, or online, or at a chamber event. We find we get referrals from those things.”

 

When it comes to marketing, he told BusinessWest, he has always focused on three areas: personal relationships with referral sources, trying to find reasons to be in the news as much as possible — for example, distributing press releases when the firm adds an attorney — and online marketing, which includes some paid advertising but more informational material, including a blog, providing resources to people who might then turn to Gove for legal services.

“I think it helps ensure that we’re top of mind for people,” he said. “Then, when someone has a legal issue, they may think of us, because they saw us recently in the paper, or online, or at a chamber event. We find we get referrals from those things.”

In a crowded market for law firms, those referrals and phone calls out of the blue are valuable, said the lawyers we spoke with about their marketing strategies. But laying the groundwork for that recognition doesn’t happen overnight.

Standing Out

Royal understands the importance of standing out in the Western Mass. legal community.

“There’s a lot of competition here in a small area; we’re saturated with lawyers in our region, and we have a law school here turning out new lawyers every year,” she said. “So what do you do to set yourself apart?”

The first step, she said, was focusing on a very specific niche — in her case, as a boutique firm that represents employers only — and building a brand around that niche in a number of ways.

“Our  niche provides a natural focus for our marketing strategies,” she explained. “Because of our defined services, we’re not everything to everyone, and maybe that’s a recipe for failure — to be too generalized. We’ve really focused on our marketplace and focused on developing a strong, recognized brand with targeted, consistent messaging.”

That messaging takes both active and passive forms, she added. Passive outreach includes the blog, newsletters, seminars, social-media outreach, trade shows, and anything that establishes the firm’s expertise in its field without being an actual, traditional advertisement — something Royal has largely eschewed, though both her firm and Shatz, Schwartz & Fentin utilize BusinessWest as part of their marketing efforts each year.

“We don’t do passive marketing thinking we’re going to have a direct sale from it, necessarily, but just to build brand awareness in the community,” Royal explained. “Then, of course, we do active marketing, direct relationship building. That happens in a variety of ways: through community involvement, business events, networking events, where we zero in on who our target is.”

Feinstein agrees that outreach that amounts to sharing information with the public brings marketing benefits that may not be realized right away.

“We write articles, we give seminars where we speak to the public, we do advanced trainings for lawyers — quite a bit of that. We feel that these sorts of marketing efforts, if they don’t immediately create a client — though they may — they certainly, at minimum, give us secondary recognition. People see our blogs, read our articles, hear our name when we’re giving a talk, and later on, if they need a lawyer and ask around and our name comes up, it’s familiar.”

In fact, it’s impossible to tell when such efforts will result in client work, she said. Sometimes it’s the next day, and sometimes it’s years down the road, when someone comes in with materials they’ve been saving since the event, and now they need help.

“The fact that they also see we’re doing trainings for other lawyers, which we do a lot of, I think confirms, or enhances, the fact that we are knowledgeable in a particular area and are recognized by our peers as such.”

While passive marketing has its benefits, Gove said, he’s not averse to paid ads as well. Most of his efforts in this area are targeted at avvo.com, a website with a national reach. “It’s a way for people who need answers to legal questions find lawyers. We’ve found a lot of success there.”

As for more traditional media advertising, Gove said he plans more narrowly targeted messaging. As a bilingual firm, he wants to expand more into Spanish-speaking communities, so he intends to approach media outlets that have inroads in that population.

“But, really, the three main pillars to our marketing are personal relationships, getting in the news, and being visible online. We’re definitely not advertising in the Republican or in the yellow pages. It’s not like it was 20 years ago.”

That said, the strategy has largely paid off for this growing firm, which expanded with a second office in Ludlow in 2014. “I think we’ve done a good job of growing, by making sure we’re visible and helpful.”

Word Up

Feinstein also considers her firm’s various passive marketing efforts to be a form of help, of public service.

“All we’ve ever done — writing articles, whether for legal journals or the Reminder or BusinessWest; lecturing and giving talks; that kind of stuff — gets our name out, gets the word out, but it also provides value, and we feel like that comes back to you in one way or another. It doesn’t have to be a one-to-one correlation. That’s fine with us; we have an obligation to serve the public by providing information, which we take seriously.

“People appreciate the difference between that kind of marketing and some general slogan, like ‘call us and we’ll fight for you,’ or ‘we’ll take your case seriously,’” she went on. “We provide real information and something to think about, and if people have concerns, we tell them to see their advisor. Whether that advisor is us or someone else, we’re still providing value.”

The Supreme Judicial Court’s rules on advertising state that “questions of effectiveness and taste in advertising are matters of speculation and subjective judgment,” which is a far cry from “thou shalt not advertise.” But lawyers should take their messaging seriously, Royal said.

“A lot of law firms maybe don’t think of themselves as a business first, which they are; they think of themselves as practitioners first,” she told BusinessWest. “But we treat this law firm as a business and attack our marketing that way. What we’ve done has been very strategic from the beginning.”

Joseph Bednar can be reached at [email protected]

Law Sections

Durational Alimony-award Limits

By Katherine E. McCarthy

Katherine E. McCarthy

Katherine E. McCarthy

The passage of the Alimony Reform Act of 2011 brought about sweeping changes to the alimony laws in Massachusetts. One major change was the implementation of durational limits on alimony awards. For marriages lasting fewer than 20 years, a formula is available to determine the length of time general term alimony may be required.
The statute, M.G.L. c. 208 §48-55, contains language that allows the durational limits to be applied to alimony orders that predate the reform act, providing many alimony payors with hope that their alimony obligation will be terminated. However, the statute also contains language that allows the probate and family court to deviate beyond the durational limits based on an ‘interests of justice’ standard.

Since the passage of alimony reform, attorneys and clients alike have been left wondering how and when the ‘interests of justice’ standard would be applied and what factors a court will consider in deviating from the durational limits. A recent decision by the Massachusetts Supreme Judicial Court provides some limited answers.

Deviation Beyond Durational Limits

Alimony reform states that “alimony awards which exceed the durational limits established in [the law] shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted.” The court must then look to whether deviation is “required in the interests of justice.”

In a case of first impression, in November 2016, the Supreme Judicial Court decided in George v. George two important aspects of the deviation standard. First, the alimony recipient bears the burden of proving that deviation beyond the presumptive termination date is required in the interests of justice. Second, the judge must look at the circumstances of the parties at the time the termination of alimony is sought, as opposed to the circumstances of the parties at the time of the initial award of alimony.

Additional factors that may be considered are the same statutory factors that judges must consider in making an initial alimony award. Those factors include:

• Advanced age, chronic illness, or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• Sources and amounts of unearned income, including capital gains, interest and dividends, annuity, and investment income from assets that were not allocated in the parties’ divorce;
• Significant pre-marital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor;
• A party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance, or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

 

The court also made clear in its decision that it would not consider an alimony recipient’s argument that, had they known that the alimony laws were going to change, or that durational limits would be applied, they would have negotiated for a larger property division in the original divorce. The SJC reasoned that, if this argument were to be accepted by the courts, it would effectively prohibit any payors with alimony awards that predate alimony reform from terminating their alimony obligation under the terms of the law. In sum, accepting such an argument would nullify that portion of alimony reform in direct contravention of the Legislature’s intent.

Takeaways

As in most cases in the probate and family court, the individual facts of the case are extremely important. However, the George case has provided some clarification of the statute that can be utilized to argue either for or against termination of alimony based on durational limits.

In sum, if a payor has paid alimony beyond the durational limits, it is wise to consider the alimony recipient’s present circumstances in predicting how successful they will be in attempting to terminate the alimony obligation. Conversely, an alimony recipient must be cognizant that he or she will have the burden of establishing that deviation beyond the durational limits is appropriate in his or her case.

Katherine E. McCarthy is an associate with Robinson Donovan, P.C., where she concentrates her practice on domestic relations; (413) 732-2301; [email protected]