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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]

Law Sections

OSHA’s Big Year

By John Gannon, Esq. and Susan Fentin, Esq.

John S. Gannon

John S. Gannon

SUSAN G. FENTIN

Susan G. Fentin

Over the past several months, the U.S. Occupational Safety and Health Administration (OSHA) has announced a number of regulatory changes that may have slipped under your radar during the summer season.

The changes are not favorable to the business community and may call for significant changes to your workplace practices.

Increased penalties

Effective August 1, 2016, OSHA’s maximum fines for safety violations went up a massive 78%.  Serious violations, which previously maxed out at $7,000 per violation, will now increase to maximum of $12,471 per violation.

Similarly, the failure-to-abate penalty will also max out at $12,471 per day, which is up from $7,000. Willful and repeat violations will cap at $124,709 per violation, which is up from $70,000. Given the dramatic increase, employers should consider auditing workplace safety practices to evaluate OSHA citation risk.

Electronic reporting data available to the public

OSHA also announced a final rule back in May 2016 that will require certain employers to electronically submit worker injury and illness data starting in 2017. Notably, OSHA intends to post this information on a website available to the public. This means the information will be instantaneously available to other interested parties, including customers, competitors, attorneys and union organizers.

Contractors reviewing project bids may consider this information as part of the bidding process. The agency explained that it will post the data on its public website so that “prospective employees [can] identify workplaces where their risk of injury is lowest.”

Employers that are not exempt from OSHA’s injury and illness record-keeping rules are already required to keep track of their workers’ injuries and illnesses in what is commonly called an “OSHA log.” However, only certain serious injuries currently require direct reporting to OSHA, such as work-related fatalities, amputations and inpatient hospitalizations.

The new rule will require non-exempt employers to directly report far more injury and illnesses data on an annual basis.

The reporting frequency and content will vary depending on the size and industry of the business. Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from all OSHA Forms 300 —including Form 300 (Log of Work-Related Injuries and Illnesses); Form 300A (Summary of Work-Related Injuries and Illnesses); and Form 301 (Injury and Illness Incident Report) — by July 1 each year.  However, in 2017, only information on the Form 300A will need to be submitted.  Establishments with 20-249 employees that are classified in a high-hazard industry with historically high rates of occupational injuries and illnesses only need to electronically submit information from OSHA Form 300A.

Employers can find out whether their industry is classified as high-hazard by visiting this website:  https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf

Reporting of workplace injuries

The electronic reporting rule also includes provisions aimed at improving safety without discouraging employee reporting of injuries.  The “anti-retaliation” language is meant to protect employees from being punished for reporting workplace injuries.

For example, the rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which many employers already do in a company handbook. However, the rule also states that several common practices may be deemed retaliatory, including:

• Automatically conducting post-accident drug testing of injured employees;

• Maintaining rules or policies that discipline employees who do not immediately report workplace injuries; and

• Maintaining incentive programs that reward employees for experiencing no recordable workplace injuries or illnesses.

The limitation on post-accident drug testing has caused the most concern within the business community. OSHA explained that post-accident testing is not prohibited outright.  Instead, according to the agency, testing should be limited to situations where drug use is likely to have contributed to the accident.

For example, if the employer has reasonable suspicion to suspect the accident is linked to drug use, testing would be permissible. Factual circumstances surrounding the accident, such as odor or bloodshot eyes, may give rise to reasonable suspicion of drug use. Employers should consider implementing a drug-testing policy into their handbook or policy manual that addresses reasonable suspicion testing.

Although the new rule has no impact on random testing, Massachusetts employers must remember that random drug testing is only permissible in limited circumstances.

The anti-retaliation provisions of the final rule were originally set to take effect in August 2016, but have been delayed until Nov. 1, 2016, so that OSHA can “conduct additional outreach and provide educational materials and guidance for employers.” Even so, employers that engage in any of the practices listed above should consult with employment counsel.

John S. Gannon is an associate at the firm of Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected] Attorney Susan G. Fentin has been a partner at Skoler, Abbott & Presser since 2004. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.  She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; [email protected]; (413) 737-4753.

Law Sections

Courting Change

Shareholders A Craig Brown, right, and Michael Sweet

Shareholders A Craig Brown, right, and Michael Sweet, like most of the attorneys at Doherty Wallace Pillsbury & Murphy have a number of practice areas.

When four respected attorneys came together 49 years ago to form Doherty, Wallace, Pillsbury & Murphy, they had solid ideas about where they would focus their practice. But in the decades since, this Springfield-based institution, while still true to its corporate and litigation roots, has become far more nimble, specialized, and adaptable to changes in the legal field driven by regulatory shifts, technological advances, and evolving client needs. In doing so, it has forged one of the region’s true local success stories.

Laws, as any attorney knows, are far from static. And a law firm that wants to not only survive, but thrive and grow over five decades must recognize how to pivot and adapt.

Take, for example, education law, an area where Doherty, Wallace, Pillsbury & Murphy has bolstered its roster of attorneys in recent years.

“The business of running a school or college is subject to more regulation than you would ever believe,” said shareholder Craig Brown, noting that the firm’s clients include American International College, Williston Northampton School, and Wilbraham & Monson Academy. “They have to sort through a lot of regulatory challenges, and they have a lot of employment-law issues right now. At AIC, they’re wrestling with the idea of shared governance; the faculty feels they have a voice in decision making that affects the academic side of the house. Where is the line drawn?”

Another recent challenge for educational institutions is making their websites accessible to people with disabilities, which is now required by law.

“Schools are a lot like businesses, but they have this regulatory climate,” Brown added. “It’s an emerging area of the law.”

Another example of an evolving area of the law is intellectual property. Shareholder Deborah Basile spearheads Doherty Wallace’s practice in this field, and enjoys the challenge.

“I love working with inventors and working with businesses that have new product lines,” she told BusinessWest. “They want to protect some intellectual property surrounding those, or have developed a new feature in a product line they’ve sold for a long time.”

The Internet has added new wrinkles as well.

“Everyone has a website now; that’s the way we do business, and using the Internet properly and carefully is another aspect of my practice,” she explained. “For example, a manufacturing company needs to be careful in terms of what to expose or disclose in terms of a unique business method or unique product.”

That said, recent modifications in patent law have made it easier for inventors to protect themselves, she added — the rare societal trend that may make her work easier, not thornier. In any case, “identifying what your intellectual property is and protecting it going forward is a critical growth area for us.”

Doherty Wallace, now boasting about two dozen attorneys, has been based in Springfield since its inception, when four attorneys with diverse strengths came together in 1967.

“Fred Pillsbury was generally recognized as the best litigator in the area,” Brown said. “He was named a judge just two years earlier, but it was too boring, so he came off the Superior Court bench. Lou Doherty was a well-regarded business and general corporate lawyer. Bob Murphy was a labor lawyer, and Dudley Wallace was a tax lawyer.”

The firm slowly built on that core — including Lou Doherty’s son, Paul, who led the firm for decades until his passing in January — and their commitment was evident to their younger associates.

“Fred Pillsbury was a magnet for business, and an engine that helped grow the firm,” Brown said, explaining that he had a nerve disorder that eventually took his life, but even when he could barely function, he still came in to practice as much as he could. “It was a remarkable thing.”

Today, the firm maintains — as it always has — strong roots in business law and litigation, but has become more specialized over time.

“The days of one lawyer with one assistant who types are fading,” said shareholder Michael Sweet. “Everyone here is focused on how to best staff projects in the most effective way for clients.”

Information Age

The key, as always, is smart change, Sweet said, even as the firm extends its lease at Monarch Place — where it has done business since the tower opened — for another 10 years.

“One of the key aspects of the decision to stay here long-term is recognizing we’re not done adapting,” he said. “We realize things are going to change, and when we planted our roots here, we knew we could be successful here, and have the capacity to grow and change.”

Computer technology has added layers of challenge to the practice of law, Sweet noted.

“The tech world in general has impacted this profession like it has everything else. The focus is on efficiency and specialization,” Sweet said, adding that the firm has continually recruited attorneys with expertise in growing specialty areas, from Basile, who launched the intellectual-property group, to a pending hire to bolster the firm’s depth in employment law, a field that is seeing plenty of change due to a constantly shifting regulatory landscape. “We continue to look at our clients and ask, ‘what kinds of services do our clients need?’ and then we go out and recruit in those areas.”

Shareholders Jeffrey Meehan, left, and Barry Ryan

Shareholders Jeffrey Meehan, left, and Barry Ryan, are among the players on the large and talented team at Doherty Wallace Pillsbury & Murphy.

Technology has also changed the way people behave, which also affects the practice of law, said shareholder Jeffrey Meehan. Take, for example, all the smartphone video being instantly recorded of … well, everything, from crimes in progress to protests gone awry. That has a major impact on the world of litigation, which is Meehan’s specialty.

The digital culture will even shape the firm’s upcoming renovation of its office, with a library used for decades to store bound books of information to be replaced by a finance and accounting department that needs more space.

But while so much data is at lawyers’ fingertips via computer these days, the information age has also made clients less patient, Brown noted. The past model of putting correspondence in the mail and waiting days or weeks for a response just doesn’t cut it anymore. “Instead, you’re e-mailing a document and expecting a review within a very short amount of time. Over the course of hours, literally, you can negotiate, make changes, and finalize the transaction documents. That puts an incredible amount of stress on a lawyer.”

Still, one key to being successful is to use the technology to benefit client relationships, not hinder them, Sweet said, stressing that relationships are still cultivated with care at the firm, not in haste. “We’re definitely not built on one quick hit with e-mails. We have not lost focus on the relationships, which, at the end of the day, are more important than those e-mails.”

Basile agreed. “We’re entrenched in the old-fashioned virtues of what it was like to be a lawyer back in the ’60s and ’70s, how you provided personal services on a slow and steady basis. But we also have to keep up with what we need to compete in this very responsive world we live in.”

Other changes at Doherty Wallace are being driven by retirements and new opportunities for veteran attorneys. The firm lost two long-time members recently to judgeships, as Michele Ouimet-Rooke was appointed a District Court judge earlier this year, and last week, Michael Callan was sworn in as a Superior Court judge.

“So we’ve been looking at the future and making investments in the future,” Brown said, “which we need to do to continue to be viable.”

Deep Roots

Brown has seen plenty of change in the city that has dominated his life. He was born in Springfield and has fond memories of a thriving downtown, and then, once the bustle of the peak years faded, of efforts to revitalize it, with redevelopment projects like Market Place, which Doherty Wallace was involved in.

“There was an ongoing attempt to pull Springfield up, and it never worked, and the effort stopped for a while,” he said. But now, he added, major economic-development pieces like MGM Springfield and Union Station, and a general sense of renewal downtown, has people excited again. “It’s an abundance of changes that create opportunities and bring Springfield to where we’d all like it to be — a thriving city.”

Doherty Wallace will enjoy the benefits of that renewed energy, Sweet said, at least for the next 10 years and, in all likelihood, much longer.

“The fact that we’re sitting here in downtown Springfield when other firms have left is telling,” he added. “At the end of the day, what you do as an organization is more important than what you say, and our firm has made a decision to stay here long-term. That’s more evidence of how we feel about the region. We’re hiring new lawyers, and we’re fortunate to have a lot of business, and interest from lawyers who want to come work here.”

Basile agreed. “There are a lot of great things about Springfield, and the people here at Doherty Wallace are really hopeful about the future,” she said. “We see the big picture, and we’re committed to the city.”

Brown told BusinessWest the region has never seen a project with as much transformative potential as the casino, due partly to the way it will be integrated with the entire downtown and have the ability to attract more business, which in turn may attract more residents, in a cycle of growth.

Meehan hopes so. He says the Pioneer Valley has always been a “poor cousin” to Boston as far as business growth, wealth, and opportunities, and noted that developments like the casino have run concurrent to backward steps as well, like Bank of America leaving the downtown area. “I’m scratching my head about that because they seemed to have some business here.”

One constant at Doherty Wallace, no matter the economic climate, has been a focus on volunteerism and community involvement, something Paul Doherty, famous for helping out with local organizations and initiatives, often without having to be asked.

“He set the example of how to be involved in the community,” Brown said. “It’s deeply part of the culture here, and everyone feels it, and everyone is encouraged to commit to the community.”

Sweet went even further, noting that this culture is one of the things that attracts people to work at Doherty Wallace. “It’s one of the reasons I chose to work here. We’re a significant part of the community in all ways.”

A Significant Loss

Brown recalls being hired to work alongside Doherty in 1977; in the interview, he was asked how he felt about working Saturdays. He immediately realized that this was a workplace that demanded much, but he learned the work was immensely rewarding as well.

“Paul was the leader of this law firm,” he said. “He set the tone in terms of the culture, the community involvement, the quality of lawyering. He was very focused on us providing the highest-quality service at all times.”

Basile agreed. “Paul was my mentor. He taught me how to be a lawyer,” she said. “The sad thing is, he wasn’t done. He had more to do. He was still committed to this city, to this law firm, and to inspiring those of us he left behind.”

Brown said Doherty knew everyone, and everyone knew him — and he valued those relationships far beyond his practice.

“Those relationships are what has endured over the decades, and those lessons on how to be a lawyer, how to give back to the community,” he told BusinessWest. “That’s all Paul Doherty. We were blessed to have him as long as we had him, and we still have him with us.”

That sentiment provides more than enough motivation for this half-century-old law firm that has experienced plenty of change, and welcomes whatever may come next.

Joseph Bednar can be reached at [email protected]

Law Sections

Firm in Its Resolve

five of Robinson Donovan’s partners

From left, five of Robinson Donovan’s partners: Jeffrey Trapani, Michael Simolo, Nancy Frankel Pelletier, Carla Newton, and Managing Partner Jeffrey Roberts.

Robinson Donovan has experienced plenty of changes in its 150-year history, from shifting economic cycles to constantly evolving laws, to the evolution of its home city of Springfield. But one thing has remained a priority since its founder, George Robinson — who was also a high-school principal, state legislator, and governor — hung out a shingle in 1866. That is a focus on community — not just in a business sense, but through charity and volunteerism. And that’s how the firm is choosing to mark this significant anniversary.

Attorneys who have been with Robinson Donovan for any amount of time are fluent in its history, which stretches back 150 years — an anniversary the firm chose to celebrate by giving back.

Specifically, the firm traces its roots back to former Gov. George Robinson, who began practicing law in the Springfield area prior to serving as a member of the state House of Representatives and then Senate.

His contributions to the Springfield region extended beyond his appointments to public office. He was also the principal of Chicopee High School and a founding member of Chicopee Savings Bank, in addition to his law practice, now known as Robinson Donovan.

As the anniversary approached, said Carla Newton, a partner with the firm, one topic of discussion was the importance of place — how Greater Springfield itself, and its network of residents, businesses, and nonprofits are critical to the Robinson Donovan story.

“George Robinson was a public servant himself, and certainly served the public in a very direct way, so we began thinking about how to give back, rather than just celebrate internally,” she told BusinessWest. “And we began looking around at all the different nonprofits, many of which have board members and volunteers within our office. We thought it was appropriate to go beyond our own personal commitments to the community, and be a little more demonstrative and provide actual contributions.”

We all live here. We all benefit from the nonprofits that operate here, whether it be Providence Ministries or an educational institution like Bay Path University. We’ve raised families in this community and benefit from the fact that these organizations exist and make our community a better place to live.”

In lieu of some grand party or other event, that’s precisely how the firm chose to celebrate its anniversary year — with a sizable donation each month to a local nonprofit.

“We solicited input from everyone at the firm,” said Partner Michael Simolo. “As Carla said, a lot of us are involved in these organizations, and we know very well the people involved in them. It was kind of a collective effort from everyone to choose the organizations we donated to.”

“We all live here,” Newton added. “We all benefit from the nonprofits that operate here, whether it be Providence Ministries or an educational institution like Bay Path University. We’ve raised families in this community and benefit from the fact that these organizations exist and make our community a better place to live.”

Besides those two organizations, the firm has also donated to Friends of the Homeless, the Food Bank of Western Massachusetts, Cutchins Center for Children, Big Brothers Big Sisters, Community Legal Aid, Dakin Humane Society, and the Gray House — with three more to be chosen before the calendar turns.

Looking Back

That calendar has turned 150 times since Robinson first set up shop, and Newton acknowledged that it’s difficult to determine all the reasons it has survived so long. But she had a few theories.

One is simply pride among the attorneys in how the firm does business. She recalled arriving at the firm — at the time much smaller than its roster of 17 lawyers — and getting the sense they cared about leaving the firm in good hands when they were gone — which involved not only treating clients with professionalism, but mentoring the younger lawyers. “There was a culture of continuation, and people like me ended up getting adopted into that culture.”

Nowadays, she added, growth comes from meeting specific needs. “We bring in someone to support a particular area, and we inculcate them into the culture, and it continues on. There’s no reason to believe this isn’t going to keep going, as the younger lawyers coming in here realize, ‘hey, someday this will be our firm.’”

Managing Partner Jeffrey Roberts added that longevity requires a strong reputation in the community as well. “Ultimately, there has to be some recognition of quality. People want service, they want value, and they want to feel they’re getting the best product available.”

That reputation translates into referrals, he added. “They say your clients come from your clients. Other lawyers say, ‘I don’t do that kind of work, but you should go to that lawyer.’ In the end, it’s a small community, and if you don’t carry your practice properly and honestly, word gets around. If people understand who we are, we’ll have no shortage of business.”

That culture, again, extends to its community outreach, Newton said. “We’re not a firm that says to people who come in, ‘you must find a place to volunteer.’ Everyone here, whether it’s administrative assistants, lawyers, paralegals, they all do volunteer work because it’s important to them. That just seems to be the type of individual who comes to work at Robinson Donovan. Our people are really committed to doing volunteer work.”

Service Network, receives a check from Carla Newton

Karen Blanchard, left, executive director at Providence Ministries Service Network, receives a check from Carla Newton, partner at Robinson Donovan, earlier this year as part of the law firm’s year-long series of donations to mark its 150th anniversary.

Partner Nancy Frankel Pelletier agreed. “It’s definitely part of the culture of the firm,” she said. “We encourage people to be active in things they have an interest in or a passion for. It’s never imposed on anyone or done out of obligation, but it’s what everyone does.”

Roberts noted that community involvement isn’t a one-way street, and firm members reap benefits beyond feeling good about themselves. “If you contribute to an organization, they benefit; on the other hand, you benefit because you learn about what the organization does, and you meet a lot of different people, and you get invested more in the community, rather than just getting in your car, going to work, taking care of your client matters, and going home. There’s a networking component that can lead you to other organizations.”

New hires, especially those coming from outside the area, are encouraged to find organizations that speak to them, as a way to get a real sense of what’s happening outside the walls and glass windows high above Main Street in Tower Square.

“Then it tends to build,” Roberts said, “because you’re recognized, and then someone else might ask you to help out at a function or support a cause or go to a dinner, and it builds on itself. It’s part of your education in the community.”

Looking Ahead

A general-practice firm, Robinson Donovan specializes in a number of legal niches, including corporate and business law, commercial real estate, estate planning and administration, divorce and family law, employment law, and litigation. After a period of rapid contraction — more than 30 lawyers worked there as recently as 15 years ago, when it was known as Robinson Donovan Madden & Barry — business has been steadily growing in virtually all those specialties, and the practice is on the rise again, hiring eight attorneys over the past several years, bringing the current roster to 16, with plans to possibly expand further.

“The firm is very dynamic and forward-thinking,” Simolo said. “We are celebrating our 150th, but at the same time, the firm is making some big investments in the future.”

Partner Jeffrey Trapani said the fact that economic development has been on the rise in Springfield, and the surrounding region is a quality-of-life draw, are added enticements when hiring.

“People get down on Springfield, but this region, I think, attracts people,” he told BusinessWest. “People enjoy coming to this area. We have city centers, things to do, you can see art, hear music, get outside, and still be close to Boston and New York.”

Trapani and Simolo count themselves among the former newcomers mentored by Roberts and his peers, but are now part of a middle generation rising to leadership and taking on much of that mentoring responsibility for new attorneys. That perpetuates the firm’s constant evolution, with some of the more recent hires chosen to match growth fields, including trusts and estates, corporate transaction law, labor and employment, domestic relations, and subspecialties like green energy.

“There’s such a broad scope of experience in this office,” Newton said. “So I can go to one of the associates and talk to them about something. They’ll learn from me, but I’ll also learn from them. When I sit in Jeff’s office or Nancy’s office, cross-learning takes place. Every single day, there are opportunities to sit down and talk about an issue with someone else. Not a day goes by that I don’t learn some new nuance that’s helpful to something I’m working on.”

It’s an environment some find unusual at first, Frankel Pelletier said, “but it’s the only environment I’ve ever known my entire career. We are just an open-door, collaborative community of lawyers.”

In short, Robinson Donovan has come a long way since its early days, when it was best known for George Robinson’s successful defense of Lizzie Borden on double murder charges in 1892. These days, the firm is recognized in a host of ways, such as the citations many of its attorneys have received from organizations like Best Lawyers, Super Lawyers, and Martindale-Hubbell.

“Unlike some other firms from the area, we really maintain a statewide presence,” said Frankel Pelletier, who was the firm’s first-ever female attorney. “We have always maintained that statewide presence and attained regional and, in some senses, national recognition. Our attorneys are constantly being recognized by organizations they belong to. That is who we are.”

Well, that and a law firm with a strong commitment to the community that has helped it thrive for 150 years.

Joseph Bednar can be reached at [email protected]

Law Sections

2016 or 1984?

By Stefanie M. Renaud

 

Stefanie Renaud

Stefanie Renaud

Imagine a piece of technology, so small it could be mistaken for a credit card, that tracks every movement an employee makes, analyzes every conversation that employee has, and could tell an employer when that employee was in need of a day off. What if that technology could identify patterns and traits that you could use to increase productivity by 23%? Would employers want to use this technology? Of course!

But what about the employees? Isn’t using technology like this an invasion of their privacy? We were shocked to learn, and we bet you are too, that, because of the way this technology is currently being used, employers actually can monitor every word and movement an employee makes without running afoul of the law.

Boston-based company Humanyze recently made headlines when it announced the success it has had analyzing data collected by employee ID badges, developed at the Massachusetts Institute of Technology, that track employees’ movements and analyze their voices during conversations. Contained within each badge are Bluetooth, radio frequency identification (RFID), and infrared technologies, as well as two microphones.

Each of these particular technologies has a different function and gives Humanyze different information that it can use to identify trends or patterns. Bluetooth and RFID technology are used to monitor the employee’s physical movements and location within the office. The microphones allow Humanyze to conduct real-time analysis of the speaker’s voice, including the frequency of speaking and interrupting, and how the tone and pitch of the voice change, which can be indicator of stress, although the badge does not record the content of the employee’s conversations. Finally, infrared technology monitors the wearer’s physiology for signs of stress.

Humanyze analyzes all of the collected data and identifies patterns or trends common to a specified group, such as top performers. Humanyze then works with companies to explore these trends and use them to the business’ advantage. For example, Humanyze helped Bank of America save millions of dollars by suggesting that they restructure employee breaks, which increased social interaction between employees and led to a 23% increase in employee productivity.

So, given how invasive this level of employee monitoring is, how could it not be an invasion of privacy? First of all, this isn’t an invasion of privacy because Humanyze only gathers data from employees who voluntarily offer to be tracked. Second, the individual’s data is their own; employers cannot see individual data and only receive information about aggregate data trends. According to Massachusetts General Laws, employees are protected by statute from “unreasonable, substantial, or serious interference” with their privacy.

However, in order to prove an invasion-of-privacy claim, the employee must show that the employer gathered and then disclosed information “of a highly personal or intimate nature.” While it is arguable that the data collected by these badges could be deemed highly personal in nature, in this case it’s Humanyze, and not the employee’s employer, who collects and analyzes the information.

For this same reason, Massachusetts employers do not need to worry about personnel-records law violations, because the employer is neither creating the records, nor is it the owner of the data. And, because the badges do not record audio, there is no concern about violating the Massachusetts wiretapping statute.

So are there any legal hurdles stopping an employer from implementing this type of employee monitoring? Only one: a workforce governed by a collective bargaining agreement. Employers with unionized workplaces will almost certainly need to bargain with the union before implementing a new employee tracking system.

Indeed, in another, related circumstance, the Boston Police Department engaged in negotiations with the union representing its police officers over whether or not the officers would be required to wear body cameras, ultimately agreeing with the union that, at least initially, the department would ask for volunteers. When no one volunteered, the BPD was allowed to assign the cameras to police officers, but that was after months of negotiations and subsequent litigation. So, if you have a unionized workforce, you can expect both union negotiations and substantial pushback on any requirement that members of the collective-bargaining unit wear these badges.

Employers in or with locations outside of Massachusetts that are inclined to experiment with this new employee-tracking system should check with labor and employment counsel in those jurisdictions, because state privacy laws can vary widely. Meanwhile, we’ll keep an eye on this new technology and let you know if there are any new developments.

Stefanie M. Renaud is an associate with Skoler, Abbott & Presser; (413) 737-4753; [email protected]

Law Sections

Priming the Pump

Summer Legal Institute

From left, Summer Legal Institute student Zachary Fernandes consults with MassMutual attorneys David Allen and Bernadette Harrigan.

Bullying and cyberbullying are pertinent issues for teens today, and this summer 40 students in the Summer Legal Institute at MassMutual played the role of an attorney and presented arguments for clients during a mock court trial. Some won awards, but they all gained valuable insights into the law as they worked with local attorneys and were given opportunities to hone their networking, critical-thinking, and public-speaking skills.

Nia Major used to get really nervous when she met someone new and had to talk with them.

But after completing a week-long Summer Legal Institute session (SLI) at MassMutual last month, the 15-year-old from Sabis International Charter School in Springfield gained so much confidence that she was named a grand-prize winner in an oral-argument competition, where she played the role of a lawyer in a mock case that involved name-calling and cyberbullying.

“Now I can look new people in the eye and discuss things,” she told BusinessWest, adding that she was surprised at how well she did in the competition.

Major’s opinion of careers in the law field also expanded as a result of her participation in SLI, and although she wants to become a pediatrician, she now finds the legal profession an appealing option.

The teen was one of 40 students recruited from local schools to take part in the program last month, which is in its fourth year.

Since its inception, MassMutual has provided more than $100,000 to fund the SLI, which is free to all students. In addition, its attorneys have given more than 250 hours of their time to educate participants about the legal profession and help them hone their arguments for the annual competition.

Major and three winning peers will travel to Washington, D.C. this fall to take part in a national program held by Just the Beginning Foundation (JTB), a nonprofit that offers students free educational programming in hopes of increasing diversity in the legal profession and inspiring underrepresented, underserved, and at-risk students to attend college.

Mark Roelling told BusinessWest he decided to establish the Springfield branch five years ago after he met with Judge Ann Williams from the Fifth Circuit Court of Appeals in Chicago during a meeting of the National Bar Assoc.

Roelling is executive vice president and chief legal counsel at MassMutual, and Williams told him about the JTB, which she helped create in response to a speech by former President Jimmy Carter that celebrated the integration of the federal judiciary. Its programming includes summer sessions where students work with volunteers from the legal community in partnership with a university to introduce them to the practice of law.

The discussion led to the birth of the five-day MassMutual Summer Legal Institute. JTB provides the curriculum, which changes annually, and Western New England University and local law firms and judges help the students learn valuable information about the profession.

“I believe this program adds value to the community because it provides opportunities for young adults to see the benefits of going to college as well as the benefits of pursuing a career in the legal profession,” Roelling said. “It also adds value to the legal profession because people of color are underrepresented in the field of law, and it’s good for the volunteers as it gives them the opportunity to give back.”

SLI is open to students who will be high-school freshmen, sophomores, juniors, or seniors, and so far, 125 students from schools with diverse backgrounds have participated in the local program: 51% have been African-American, 20% have been Hispanic, 16% have been white, 8% have been Asian/Pacific Islanders, and 5% have multiple ethnicities.

Multi-faceted Curriculum

MassMutual Assistant Vice President and Counselor Patrice Sayach said the five-day SLI curriculum is intense and requires students to work at home in the evenings.

This year it began on Monday, July 11, and during the morning, students were introduced to the legal system and learned about a Supreme Court decision before they were presented with a fictional case and the facts that went along with it.

oral-argument competition

Patrice Sabach (far left) and Mark Roellig (far right) congratulate Nia Major, Jada Ficarra, Karissa Coleman, and Jerry Moore III on winning the oral-argument competition.

The case was important because each student was assigned to serve as a defense or prosecuting attorney and had to craft convincing arguments that they presented at the end of the week before mock judges in an oral-argument competition.

MassMutual attorneys served as coaches and met with them in small groups to help them understand what facts were relevant and how and why they could be used in the courtroom.

“We showed them this is the kind of thing lawyers do on a day-to-day basis, that they need to understand the law and how it applies to world situations,” Sayach said.

After lunch, they met with a panel of MassMutual attorneys who talked about their backgrounds and allowed the students to ask questions.

Tuesday was spent at Western New England University, where members of the Law department taught the group networking skills that included how to give an elevator pitch, how to introduce oneself, how to enter and leave a group in an appropriate manner, and how to follow up with people they met. There was also a session on financial literacy that focused on the college-admissions process and financial-aid resources.

In addition, the students traveled to the Bulkley, Richardson and Gelinas, LLC law firm, had lunch with the attorneys, and took part in oral-argument reviews.

The day included a seminar on professional etiquette, and each student was given their own business cards, which they used later during a networking session with seven judges, attorneys from local law firms, and top MassMutual executives and lawyers.

“The idea is for the legal community to work together to form a pipeline of diverse candidates who are underrepresented in the legal profession,” Roellig explained.

Wednesday began at the state courthouse in Springfield, where students observed a legal proceeding that dealt with juvenile abuse, which was followed by a panel discussion with three judges, facilitated by MassMutual attorney Dorothy Varon.

In the afternoon, they visited the federal courthouse, where Judge Mark Mastroianni presided over a mock trial. The students had prepared for it in advance, and some students served as members of the jury, one acted as the bailiff, while others played the role of witnesses or were assigned to teams of mock attorneys.

Sayach noted that all members of the jury agreed that the defendant was guilty, except for one student who was able to convince his peers that reasonable doubt existed.

“The students took the case very seriously,” she told BusinessWest.

jury as a hypothetical case

Students act as members of the jury as a hypothetical case is tried before them.

The day ended with a presentation by a U.S. marshal and additional small-group oral-presentation preparations and reviews.

On Thursday, the students went to Hartford, Conn., where they continued to work on their final oral arguments. After lunch, they visited Day Pitney LLC, where they met with attorneys who helped them polish and perfect their presentations and told them about the schooling required to pursue a career in law.

The oral-argument competition was held Friday at WNEU School of Law in a mock courtroom, and MassMutual attorneys served as judges. After the competition, the students toured the law school and attended a negotiating session before being divided into pairs and given a problem to negotiate.

At the end of the day, a graduation ceremony was held, and awards were presented, including a trip that four students won to fly to Washington, D.C. and participate in a day-long JTB event that will include a tour of the Supreme Court, lunch with a Supreme Court justice, a visit to a local law firm where they will network with lawyers in the D.C. area, additional programming, and some sightseeing.

Life Lessons

BusinessWest recently met with the winners of the oral-argument competition, who had high praise for the program.

“It was fun,” said Karissa Coleman, an incoming 10th-grader at Springfield Central High School, who noted that, although she has always been interested in a law career, the program made it even more appealing.

“This helped me come out of my shell, and I found that oral arguments came naturally to me. I didn’t know how much work lawyers put in before they went to court, and I learned they really try to look for little details that can make a big difference to help their client,” said the 14-year-old. And although she called the experience in the courtroom “nerve-wracking,” her rebuttal was so refined, it helped her win the award.

Jada Ficarra, who will enter 10th grade next month at Sabis International Charter School in Springfield, enrolled in the program because she took part in a model Congress at her school and likes to debate issues.

“It taught me a lot about law. It’s really a broad field, and I found out there are many different careers in the field to choose from,” she said, noting that she talked to real-estate, divorce, and corporate attorneys, as well as some who specialize in litigation.

The teen hopes to get a summer job next year from contacts she made, and although she wants to become an obstetrician, a legal career has become her second choice.

Fourteen-year-old Jerry Moore III took part in the program with his sister Simone last year, and returned this year to get more experience.

“I hope to go to law school after college,” said the Hampden Charter School of Science student. “Litigation appeals to me; it’s really interesting, and it gives you a thrill to get all of the evidence, present it to the jury, and try to convince them that your side is right.”

He was nervous about the networking session, but the experience made him comfortable with it as well as with public speaking.

“I did a lot of work at home, refining my arguments, reading about the law, and researching what it says. It was hard, but it was also a lot of fun,” he reported, adding that, although the side of the case he had to argue was not the side he would have chosen on his own, it taught him that, “by preparing a good argument, it’s possible to win a case.”

Tinsae Erkailo took part in the program two years ago. He won the annual trip to Washington D.C. and is working as an intern at MassMutual this summer.

The 17-year-old moved to the U.S. from South Africa several years ago and said he never would have had the opportunity to meet lawyers in top law firms and make contacts that may help him get into Stanford University if he hadn’t participated in the Summer Legal Institute.

“The program made me realize that I needed to become a good speaker so I can get across what I want to say,” said the incoming senior at Springfield Renaissance School, adding that honing that skill helped him secure his current internship.

“The program also helps people identify careers they want to pursue,” he added. “Right now I am exploring what I want to do in the future, but confidence is really important no matter what you choose.”

Sayach agreed. “Students in the program improve their critical thinking, public-speaking, and networking skills, which will help them to become successful in any profession they choose to enter.”

Law Sections

The ‘Tuition Claw Back’

By L. Alexandra Hogan, Esq.

L. Alexandra Hogan

L. Alexandra Hogan

If you find yourself financially struggling while you are paying for your child’s college education, filing for bankruptcy protection may have a greater impact than you might expect. The concern is a newer trend that may be employed by bankruptcy trustees called the ‘tuition claw back.’

The tuition-claw-back scenario looks something like this: you have an adult child in college, and you have paid some or all of your child’s tuition and other costs and expenses for a few years.  As time passes, you find yourself struggling financially because you have accrued a great deal of unsecured credit-card debt trying to make ends meet. You file for Chapter 7 bankruptcy protection to discharge your credit-card debt. As a bankruptcy debtor, your financial transactions within the recent years become a matter of public record, and the bankruptcy trustee appointed to administer your case learns that you have been paying tuition and related college costs, but not other creditors.

The trustee files a lawsuit against your child’s college demanding that the payments made over the last few years be returned to the bankruptcy estate to be distributed to creditors of the bankruptcy estate in accordance with the priority prescribed by the Bankruptcy Code. Your child still has one year of college left.

Concerns immediately come to your mind as a parent. Will the college allow your child to finish college if the college must pay the bankruptcy estate the tuition and cost payments it previously received? Will the college sue your child for the tuition and costs?

The concept of a tuition claw back is quite alarming and worthy of serious consideration if you are contemplating bankruptcy and have paid college tuition for a child in the past few years. This certainly does not seem fair to the innocent child or college.

While some commentators are critical of the seemingly unsavory actions of the bankruptcy trustee, the reality is that the bankruptcy trustee is required by law to pursue transfers that may result in recovery of assets for the benefit creditors of the bankruptcy estate. The public-policy argument in support of the tuition claw back is that it would be unfair for the adult child’s college to receive the parent’s payments to the detriment of the parent’s creditors, given that the parent is not legally obligated to pay for the child’s college and the parent does not receive any benefit from the child’s education.

The next logical question is, what is the legal basis of the tuition claw back? The theory is based upon a state’s ‘fraudulent transfer’ laws, utilized in conjunction with the Bankruptcy Code to avoid the monetary transfers and recover them for the bankruptcy estate.

The word ‘fraudulent’ can be a bit of a misnomer. Clearly, the parent in this scenario is simply attempting to act in the best interest of the child and not to defraud anyone. Nevertheless, when a debtor has transferred money at a time when the debtor is financially insolvent, or rendered insolvent as a result of the transfer, and the debtor has not received consideration for the transfer — as an example, reasonably equivalent value in the form of a personal benefit — the transfer falls under the scope of the statute and has been called ‘constructive fraud.’

Under the Massachusetts fraudulent-transfer laws, the trustee may avoid and recover transfers going back four years from the date of the bankruptcy filing. This could amount to significant recovery for the bankruptcy estate’s creditors.

Currently, the issues presented here have not been reported in any published decisions in Massachusetts. However, there is at least one case pending in Massachusetts against Sacred Heart University, and several other claims have been made by trustees but ended in a settlement prior to trial. There are numerous reported decisions from other states’ bankruptcy courts. However, there is a split in authority as to whether tuition payments may be avoided and recovered on the basis of non-economic consideration. For example, might love and affection or family obligation satisfy the consideration issue?

The question as to what constitutes ‘reasonable equivalent value’ has been the focus of these cases. In Pennsylvania, two bankruptcy courts have ruled that non-economic benefits are satisfactory consideration, and therefore the trustees could not recover the payments. In one case, the court held that payments were “reasonable and necessary for the maintenance of the debtor’s family.”

In the other case, the court held that the “payments were made out of a reasonable sense of parental obligation,” noting that “there is something of a societal expectation that parents will assist with such expense if they are able to do so.” Conversely, in Michigan, a court noted that the parents had no legal obligation to provide their adult child with a college education and allowed the trustee to recover the college payments because any value received by the parents must be a concrete and quantifiable economic benefit.

Many trustees, lawyers, debtors, and colleges are eagerly awaiting a Massachusetts bankruptcy-court decision to settle the law in Massachusetts and provide guidance. Until then, suffice it to say, those who find themselves in a similar situation should discuss the matter with qualified bankruptcy counsel, as strategic options or defenses may be available. u

Attorney L. Alexandra (Alex) Hogan is an associate with the Springfield-based firm Shatz, Schwartz and Fentin, P.C., and concentrates her practice primarily in business, litigation, and bankruptcy law;  (413) 737-1131; [email protected]

Law Sections

By Jennifer Butler

Jennifer Butler

Jennifer Butler

Nonprofit organizations face a multitude of compliance issues every day, and keeping up with them can be a challenge. Because compliance failures may result in the loss of funding, organizations need to know what the current applicable regulations are and make sure their programs conform to them.

For providers of home and community-based services, that means understanding the Centers for Medicare and Medicaid Services’ (CMS) updated regulations and ensuring their programs comply with them. Referred to collectively as the ‘community rule,’ the CMS regulations are intended to provide individuals receiving long-term services and supports with full access to the benefits of community living and the opportunity to receive services in the most integrated settings possible.

All providers who operate home and community-based services (HCBS) programs under sections 1915(c), 1915(i), and 1915(k) of the Medicaid statute, in both residential and non-residential settings, are subject to the rule.

While much of the community rule focuses on states’ responsibilities, providers are responsible for bringing their programs into compliance with the regulations in two key areas: settings requirements and person-centered planning. Providers who operate residential programs must also ensure that their programs satisfy the additional requirements specific to provider-owned or -controlled residential settings.

Home and Community-based Settings Requirements

All HCBS providers must ensure their programs meet certain settings requirements outlined in the community rule. The goal of the rule’s settings requirements is to maximize participants’ access to the benefits of community living and enable them to receive services in the most integrated setting. Per the rule, HCBS settings must:

• Be integrated in and support full access to the greater community;
• Allow the individual to select the setting from among setting options, including non-disability specific settings and an option for a private unit in a residential setting;
• Provide individuals with opportunities to seek employment and work in competitive integrated settings, engage in community life, and control personal resources;
• Ensure the individual receives services in the community to the same degree of access as individuals not receiving Medicaid home and community-based services;
• Ensure the individual’s rights of privacy, dignity, respect, and freedom from coercion and restraint;
• Optimize individual initiative, autonomy, and independence in making life choices; and
• Facilitate individual choices regarding services and supports, and who provides them.

Additional Requirements for Provider-owned Residential Settings

In addition to the general settings requirements, the community rule imposes further requirements on providers operating programs in provider-owned or -controlled residential settings. Per the rule, residential settings must:

• Provide the individual with a lease or other legally enforceable agreement providing similar protections;
• Ensure the individual has privacy in their unit, including lockable doors, choice of roommates, and freedom to furnish or decorate the unit;
• Allow the individual to control his or her own schedule, including access to food at any time;
• Provide that the individual can have visitors at any time; and
• Be physically accessible.

Any modification of the additional requirements for residential settings must be supported by a specific assessed need and justified in a person-centered service plan. For example, if the provider determines that it would be unsafe for a particular individual in its care to have lockable doors, the provider must document that need in the service plan.

Person-centered Planning

Finally, the community rule requires that service plans be developed for all program participants through a person-centered planning process which results in a plan that reflects his or her unique goals and preferences.  The person-centered planning process must:

• Be driven by the individual;
• Include people chosen by the individual;
• Reflect cultural considerations and use plain language;
• Offer choices to the individual regarding services and supports the individual receives and from whom;
• Include strategies for solving disagreement;
• Provide a method to request updates;
• Identify the strengths, preferences, needs (clinical and support), and desired outcomes of the individual; and
• Include individually identified goals and preferences related to relationships, community participation, employment, income and savings, healthcare and wellness, and education.

Additional planning-process requirements, as well as specific requirements for person-centered service plans, are also outlined in the rule.

All providers of community-based programs should carefully review them to make certain they fully comply with the community rule. Some requirements of the rule, such as the provision regarding leases, may raise complex legal issues that are best addressed by an attorney. Providers are encouraged to consult with counsel if they have any questions about bringing their HCBS programs into compliance with the community rule.

Jennifer Butler, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Law Sections

Left to Their Own Devices

Whether or not a company explicitly allows it, employees in all fields are increasingly using their own laptops, tablets, and smartphones as part of their jobs. This practice, known as ‘bring your own device,’ or BYOD, certainly has its benefits, from flexibility to employee satisfaction to decreased IT costs. But it also brings risks — data security is a major one — and potentially thorny legal questions concerning company information being stored on private equipment. There may be no one right answer for all businesses, but well-written, clearly communicated policies are a good start.Whether or not a company explicitly allows it, employees in all fields are increasingly using their own laptops, tablets, and smartphones as part of their jobs. This practice, known as ‘bring your own device,’ or BYOD, certainly has its benefits, from flexibility to employee satisfaction to decreased IT costs. But it also brings risks — data security is a major one — and potentially thorny legal questions concerning company information being stored on private equipment. There may be no one right answer for all businesses, but well-written, clearly communicated policies are a good start.

Jeffrey Trapani understands the appeal of personal devices like laptops, tablets, and smartphones.

“Everyone’s grown accustomed to having these devices; it’s sort of an expectation,” said the partner with the the Springfield-based law firm Robinson Donovan, while pointing to his own phone. “I find myself sometimes looking at that instead of the giant screen next to me.”

In fact, in an ever-more mobile society, the lines defining the workspace are blurring, and more Americans find themselves using their personal devices, rather than — or in addition to — company-owned equipment, so they can access their work no matter where they are.

All good, right? Well, yes and no.

Certainly, the bring-your-own-device (BYOD) movement offers real benefits, from increased employee satisfaction — they can work more flexibly and tend to be more comfortable and productive on their own devices — to cost savings for employers, who don’t have to spend as much money on hardware, software, and maintenance.

“There are two competing schools of thought whether this would be a good practice,” said Amy Royal, founding partner of employment-law firm Royal, P.C. “Proponents point to the ease and comfort of using your own personal device. And I understand the convenience. If I have employees who are comfortable with their own device, smartphone, laptop, or tablet, they’re more productive, it’s easier for them to navigate their device, and it creates more employee satisfaction.

Amy Royal

Amy Royal says it may be wise for a company to require personal devices used for work to be checked by IT staff periodically.

“Plus, it’s kind of annoying if I have duplicative devices — a work phone and a personal phone — and there’s cost savings to the company if they’re not responsible for furnishing those devices. Those are good things,” she went on.

However, the concerns the BYOD trend raises for employers are serious ones, she told BusinessWest. “You want to delve into the different considerations. Opponents would say it creates potential legal and security risks, and confidentiality and security issues.”

The key issue is not necessarily employees using their personal devices at work, said John Gannon, an associate attorney with employment-law firm Skoler, Abbott and Presser — it’s allowing employees to access the company’s secure network and sensitive data with those devices.

“It’s a broad area of concern,” he noted. “If employees want to do it, an employer will want to have specific policies geared toward people’s personal devices and accessing the employer’s network from those personal device, whether it’s a mobile phone, tablet, or laptop.”

The reason the BYOD question is so pervasive, said those who spoke with BusinessWest, is that even companies that forbid the use of personal devices for work purposes often find employees are doing it anyway. By establishing and clearly communicating policies surrounding personal devices, employers have a better chance of avoiding disputes, legal trouble, and security issues down the line.

Safe and Secure

It wasn’t difficult for Royal to quickly tick off a number of pitfalls made possible by transferring workplace data to a laptop or tablet.

“It poses significant risks to confidentiality when we have somebody using a personal device to access work on the company network and store information — proprietary information — on that personal device,” she said. “What if there’s a data breach? Or the employee could lose it, and the device could end up in someone else’s hands. Or, they could share their device with family members, and that could be a problem.”

Furthermore, she suggested, what happens when an employee leaves the company, which doesn’t always happen on the happiest of terms? They’re obligated to leave company-owned equipment at work, but what is the terminated employee’s responsibility when it comes to client or customer data left on their own device?


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One solution is crafting policies — agreed to as a term of employment — that either forbid the storage of proprietary information on a personal device, or allow the company access to the device to wipe it clean, Trapani said, courses of action that touch on sensitive issues of balancing data security and employee privacy.

“The concern with these personal devices is what kind of data winds up on these things, and are you enabling the employee, if they’re leaving, to take it with them,” Gannon added. “Another big concern is if they lose the device. So, if you’re going to allow employees access to the network through their personal devices, you should have some way to log into those devices and wipe them clean if they’re lost or not returned after employment.”

With all the concern around what employees can take off the company network, perhaps equally important is what they can put on it.

“If you have a personal device you’re connecting to the company network, there’s a risk with that. It might not be supported with updated malware protection,” Royal said, noting that businesses backed by a strong IT department typically don’t have to worry about that on company-owned equipment.

“It’s important to iron out these considerations before allowing people to use their devices in the course of the job,” she added. “You want to develop a clear policy. Maybe personal devices need to go to IT periodically. You can set some kind of timetable in that regard, as well as who can access the device.”

John Gannon

John Gannon says storing sensitive company data on personal devices can be cause for concern — especially if they lose the device or leave the firm.

Gannon agreed. “The primary concern is data security, and personal computers that are in the office, that don’t go anywhere, typically have antivirus software that’s regularly updated by either internal IT people or IT management companies that come in and remotely monitor what’s going on the computers.

“If someone has their own device, they could be using it at home, where they may not have the same level of antivirus protection that networked computers have, and they may install something unknowingly, some virus or malware,” he went on. “Malware is a big one — something inadvertently downloaded to your computer that stays dormant, then, say, when you access a banking website, tries to steal your login credentials. It’s pretty dangerous stuff, and if you install that on your laptop, bring that to work, and connect to the network, there’s a chance of infecting the systems on the network.”

Where Does the Time Go?

Security issues are only one piece of the BYOD puzzle, however. Another piece involves wage-and-hour issues, particularly for non-exempt employees getting paid by the hour. Say an employer e-mails workers after hours, Trapani suggested, and an hourly employee responds to that e-mail at home, rather than opening it the following morning.

“Is there an expectation that’s something you have to compensate them for? You can lock yourself into a claim if you don’t.”

Gannon agreed, recalling a study claiming the average American checks their phone 150 times a day, and many of those checks come after work hours, but could involve work issues.

“If you do have non-exempt employees, you have to pay them for all their working time. And if they’re going home and accessing the network to check e-mails or take phone calls, technically that is working time,” he explained. “If that’s a couple e-mails a day over the course of a week, we’re talking about potentially a half-hour, 45 minutes of work. Over a year, that could cause problems. Employers find it difficult to track that time, so it’s a significant challenge for employers who want to give employees freedom to do things from home.”

Gannon said companies can address this challenge in one of several ways: Not allowing non-exempt employees to connect to the network remotely, or allowing only exempt employees to use their personal devices for work purposes, or allowing employees to work from home, but clearly delineating in the company handbook how to accurately report that time, or allowing overtime only with prior approval from a supervisor.

“It gives the employer some protection if the employee leaves, then claims to have worked all these hours, and you didn’t know about it. If you have a policy that requires them to seek approval beforehand, you may not have to pay for that time.”

Then there’s the question of reimbursing employees who use their own device — and, if companies choose to go this route, what legal ramifications it raises, Trapani said. For instance, is the business liable if an employee gets into a motor-vehicle accident while texting? Or, if a company is involved in a lawsuit, what is the employee’s obligation to surrender data on their phone or laptop in the discovery phase?

“Sometimes employers can get dragged into a lawsuit and want to see information on various devices,” Gannon noted. “You’ll want to have some kind of language in your bring-your-own-device policy that the information on that device could belong to the employer.”

In that circumstance, it would actually benefit an employer to reimburse the employee, or pay for a device that can be used for work and personal time, he went on. “If the employer pays for and provides these devices to the employee, it’s less of a privacy issue. If employees are using their own device, mostly for personal use, but for some work use, getting that information can be more challenging.”

Finally, Trapani said, there’s the age-old concern — updated for this high-tech era — of employees killing time while on the clock, and whether using their personal devices at work makes it easier. “There are performance issues. If you have a handheld device in front of you instead of a giant screen, are you looking at Facebook, or doing what you should be doing?”

Clear Communication

In the end, Royal told BusinessWest, the BYOD trend has been a net positive at many companies, but there’s risk in allowing it — risk that nonetheless can be managed with well-constructed, clearly communicated guidelines.

“It’s a collaborative effort involving a number of people, like IT, HR, your legal team, and also accountants — are you reimbursing your employees a certain amount for using personal devices, and what are the tax implications of that? You want to have a team looking at this practice before you roll it out.”

Trapani agreed. “Communication is important, not only so employees know what’s expected of them, but also so the people in charge understand the implications of new technology.

That said, Gannon noted, it’s difficult to craft a general BYOD policy, as a lot of it depends on the industry. For example, medical businesses bound by HIPAA from disseminating health information need to be more vigilant than some other industries about which employees can access sensitive data, and on what devices. But there are some universal recommendations.

“Certainly, you want to have a policy that sets out authorized and unauthorized use. And sometimes, the policy lets employees use their own device only if the IT people install software updates and an antivirus program, and gives them remote access if they need to clean out the device.”

A strong BYOD policy, at the very least, puts all employees on the same page, knowing exactly how their devices can be used and what happens when they leave the firm.

“Even if you don’t want to replace company devices by allowing the use of personal devices, you still want to tackle these kinds of issues,” she said. “Employees are probably using their personal laptop or smartphone for some business. That’s the reality.”

Joseph Bednar can be reached at [email protected]

Law Sections

Work to Do

By Susan G. Fentin, Esq.

SUSAN G. FENTIN

Susan G. Fentin

On May 18, the Department of Labor (DOL) finally released its highly anticipated revisions to regulations governing the Fair Labor Standards Act (FLSA). Under the FLSA, employees who are considered exempt under one of the so-called ‘white-collar’ exemptions are not entitled to be paid overtime if they work more than 40 hours in a workweek.

The threshold salary level for exempt status is currently $455 per week, which is equivalent to an annual salary of $23,660. However, under the revised regulations, on Dec. 1, the new minimum salary threshold will go up to $913 per week, annualized at $47,476. Any employee who is not making the minimum salary threshold will automatically lose their exempt status and be entitled to overtime pay. It’s estimated that 86,000 Massachusetts workers would then become entitled to overtime pay.

Fortunately, employers have time to decide how to handle this huge change. The first step is to conduct a wage/hour audit by identifying those employees whose minimum salary level falls below the new threshold. Employers should ask those employees to begin tracking their hours of work. Decisions about how to handle these workers will depend, in part, on whether the employee currently works more than 40 hours in a workweek and, if so, how many hours the employee generally works.

At the same time, companies should be reviewing their exempt employees’ job responsibilities to determine whether the job descriptions for these workers truly qualify them for exempt status.

In a recent case, Marzuq v. Cadete Enterprises, the U.S. Court of Appeals for the First Circuit ruled that store managers’ claims for unpaid overtime could proceed to trial. In that case, one of the store managers, Gassan Marzuq, earned $825 per week, or $42,900 per year, in 2012, only slightly less than the new minimum salary level. So in Marzuq’s case, Dunkin’ Donuts might have sought to preserve his exempt status by raising his salary to the new minimum threshold.

But even if the manager’s salary meets the new minimum, that does not mean that he will pass the test for exempt status. Dunkin’ Donuts store managers spend a substantial amount of time substituting for crew members who miss their scheduled shifts, serving customers, and cleaning, in addition their other responsibilities, which include calibrating equipment, handling cash, training and supervising employees, and substantial paperwork. In his lawsuit, Marzuq claimed he had been misclassified as exempt and was therefore entitled to overtime pay whenever he worked more than 40 hours in a workweek.

Under the DOL regulations, a manager can be considered exempt even if he is serving customers at the same time that he is supervising employees. The issue is whether the manager’s exempt duties are his primary duty. Marzuq claimed that he spent most of the time, perhaps as much as 90%, performing non-exempt work. Courts reviewing exempt status will look at a number of factors, including the amount of time spent performing exempt work. Time alone, however, is not the determinative test; it is the ‘overall character’ of the employee’s position that determines whether exempt or non-exempt work is the employee’s primary duty.

The court found that, since the managers spent a large portion of their days performing manual labor normally assigned to a non-exempt worker, it was questionable how much time was actually spent in management roles.  The court concluded that a jury should decide whether the managers’ work was truly exempt. It noted that, in addition to their work in non-exempt roles, administrative tasks were a relatively small portion of the workweek, store managers’ authority to problem solve or terminate an employee was apparently limited, and taking into consideration the number of hours worked by each manager each week and the fact that the non-exempt employees could receive tips, the non-exempt staff might actually make more per hour than their managers.

Looking at the overall character of the managers’ primary duty, the First Circuit determined that a jury should decide how many hours the managers regularly worked, how much time they spent in non-exempt work, and the portion of that non-exempt time in which they were performing both exempt and non-exempt duties. In addition, the court found there might be a jury question as to whether the managers had a substantial role in decisions affecting their crew members.

The bottom line here is that, even for those employees whose salaries are close to the new minimum, raising their wages to meet the new threshold won’t solve the problem if their job duties do not qualify for the exemption. So the court’s analysis here is significant for all exempt workers, even for those whose salary level may not need to change after the DOL’s final regulations are issued.

As a result, the time is ripe for employers to re-evaluate their exempt/non-exempt classifications. If you are concerned that some of your exempt workers may be misclassified, the new regulations will give you a reason to revise the classification without necessarily creating liability for past wages. Consult experienced labor and employment counsel if you need guidance on how to properly classify your exempt workers.

Attorney Susan G. Fentin has been a partner at Skoler, Abbott & Presser since 2004. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court. She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; (413) 737-4753; [email protected]

Law Sections

Stop, Collaborate, and Listen

Lauran Thompson

Lauran Thompson says the practice of law, especially for solo practitioners, lends itself to co-working spaces.

Co-working spaces — where solo practitioners ply their trade in a common area to share expenses and collaborate with other business owners — is not a new concept, but it has been slow to catch on in the Western Mass. legal arena. That’s surprising, says Lauran Thompson, considering how many lawyers work alone but could benefit from the dynamics of co-working. That’s why she launched Dockit in January, hoping the downtown Springfield space attracts a mix of new and experienced lawyers intrigued by the benefits of collaboration, idea sharing, and simple convenience.

 

Joan Williams is a well-established defense attorney, having maintained a solo practice in the region since since 2005.

She worked from an office in Northampton, but after she and her family moved to Connecticut, she found she didn’t relish the hour-long commute, so she opened a new office in Springfield. But she found the space bland and was looking for a change. That’s when she heard about — and became quite intrigued by — a new venture called Dockit.

“It’s the complete package,” Williams said of the new co-working space for lawyers that opened in January in downtown Springfield, a five-minute walk to the Hampden County Hall of Justice. “It’s a nice space. I don’t have to go out and buy furniture or pay for Internet service, and I don’t have to worry about finding conference space.”

Lauran Thompson — a paralegal who had managed her family’s law office, Thompson & Thompson, for 15 years — recognized the value of co-working as well, and saw opportunity in a model popular among law professionals out west and in Boston, but sorely lacking in Western Mass.

“Managing a law office, I’ve seen first-hand how important collaboration is,” she said, adding that her firm was looking for ways to be more collaborative with other attorneys. “I started looking into finding a workspace where we could do more collaborating, and I happened upon this new co-working movement. My research showed there’s a movement in the legal community toward shared space.”

The business she started, Dockit — located just off Main Street, in the pedestrian walkway between Harrison Street and the MassMutual Center known as Market Place — provides exactly that, with plenty of amenities to boot. Members don’t have their own desks or offices, but can work or meet with clients in a number of shared spaces, from open seating areas in the central area to three small, private conference rooms. The modern layout contrasts with the dark wood and exposed brick of the renovated building, creating a vibe that seems to suit the Millennials that will likely comprise the bulk of the facility’s ever-changing membership.

“We’re reaching out to solo practitioners spread out all over the county, offering a space to come and meet with people and share ideas,” she told BusinessWest. “We have WiFi, desktop computers, printing, faxing, scanning, videoconferencing, and a nice kitchen area where we keep lunches.”


Go HERE to download a chart of Law Firms in Western Mass.


Co-working is not a new concept in the Pioneer Valley; business incubators in particular are known for their use of shared space and collaboration. But in legal circles, Dockit is filling a gap regionally. Although lawyers of all types are welcome at Dockit, Thompson said defense attorneys will comprise the majority of members, in part because of a quirk in the system.

“It’s particularly important for people who are working as bar advocates,” she explained. “There’s a requirement for them, if they want to be on the list for Hampden County, if they want to be assigned a case, to have an address in Springfield. That’s for the benefit of the client, so the client doesn’t have to trek around to meet them.”

A quiet space near, but separate from, the courthouse makes sense in other ways, Thompson went on, noting that the courthouse is packed with district attorney’s office staff, judges, clerks, criminal defense lawyers, bar advocates, and others in close proximity, and there’s not much room to discuss matters privately. “Imagine putting both football teams in the same locker room. We give them space to come and collaborate.”

Suiting Their Needs

Dockit offers several tiers of membership with different price points, depending on how often a member needs the space, ranging from five days a month to five days a week. That flexibility is valuable, Thompson said, for lawyers who use the space for an array of reasons, from everyday work to an occasional need for collaboration with fellow attorneys.

“A cornerstone of co-working is co-workers,” Erin Sperger, a legal research and writing attorney in Seattle, wrote in the New Yorker recently. “For single-lawyer firms, it is great to be able to discuss ideas and cultivate relationships with attorney co-workers. When compared to a traditional law office environment, the kind of conviviality found in a co-working space can be a breath of fresh air.”

She warned of privacy issues that can arise by using shared equipment and speaking to clients in an open area, but said common sense and caution eliminates most of those.

“For me, the advantages of co-working far outweigh any possible risk,” she wrote. “It is more than just office space; it’s a rich source of mentoring, referrals, and an opportunity to collaborate by co-counseling with other attorneys. Co-working spaces attract people who like the idea of collaborating and sharing resources — generally a pretty great batch of people.”

Dockit’s location

Dockit’s location along Market Place in downtown Springfield gives it easy access to the Hampden County Hall of Justice.

Thompson said Dockit isn’t likely to be anyone’s permanent home, and the membership model — it’s renewed monthly, with no long-term leases — means lawyers can come as long as the facility benefits them. Some members, she added, are established attorneys with separate offices seeking the collaboration, continuing legal education (CLE) programs, and convenience offered through co-working — all summed up by Dockit’s slogan, “the firm alternative.”

“A lot of attorneys come out of law school, and to take appointments from the the court, they have to have a mailing address in town. But it can be difficult signing a two- or three-year lease, so we provide a place where they can meet with clients without that lease.”

Thompson would like to see Dockit expand its offerings as well.

“We’ve started doing some e-mail surveys to see where there’s interest in social events after hours — showing movies or doing docket discussions,” she explained, adding that events could center around current hot topics in the legal world, such as the current controversy over a Supreme Court nomination, or some new ruling that may be impactful to the Greater Springfield legal community. “We might talk about it, what kinds of motions we need to draft, what we need to do.”

Others who maintain home offices far away from the courthouse may use Dockit to help their work-life balance, she added. “They’re not going to close their home office, but this gives them an element of professionalism, where they can put their name on the door and have a place where they can meet clients that isn’t Dunkin’ Donuts or Barnes & Noble. There are a lot of benefits.”

Williams appreciates all of them, but came back to one in particular.

“For me, the biggest thing is having people I can bounce things off of. As solo practitioners, we sometimes don’t get that back-and- forth around issues. It’s good to have this space where people can come in and ask questions.”

Case Study

While bringing in more CLE opportunities and expanding awareness of Dockit, Thompson hopes the idea expands in Western Mass., just as co-working has in other industries.

“Within the co-working movement, the legal community is certainly a niche group,” she said. “I’d say we cater mostly to the defense community. We’re open to other types of lawyers, but we cater our CLE events to the defense community, which tends to be a community that doesn’t get a lot of these resources. We want like-minded people to be able to share information, while, at the same time, we’re really conscious of client confidentiality.”

It’s a balance, just like the work-life balance that Millennials — a generation known for not only collaboration, but a mobile lifestyle — crave. “They don’t want to carry the anchor of a five-year lease commitment. If you make that kind of commitment, you feel like you have to be in that space.”

On the other hand, because of its tiered plans, lawyers can make Dockit a space that works for them, not the other way around.

“What’s going to happen with the co-working movement is exactly what we’re doing — it’s starting to branch into niche groups,” Thompson said. “This is the wave of the future with Millennials. They don’t want to sit in the office all the time. Here at Dockit, we cater to that.”

Joseph Bednar can be reached at  [email protected]

Law Sections

Employers, Prepare Now

By KARINA SCHRENGOHST

This year, the Department of Labor (DOL) is making some significant changes to the regulations governing which executive, administrative, and professional employees (white-collar workers) are exempt from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay protections — and employers need to be ready.

Karina L. Schrengohst

Karina L. Schrengohst

Under FLSA, ‘non-exempt’ employees are entitled to overtime pay while ‘exempt’ employees are not. The largest category of exempt employees is white-collar workers, who generally fall within the exemption only if the following three requirements are met:

• The employee is paid a predetermined, regular, fixed amount, without regard to the number of days or hours he or she works;
• The employee earns a minimum salary of $455 per week, or $23,660 per year; and
• The employee’s duties involve certain tasks, authority, or training.

With respect to the third requirement (duties), the regulations provide some specific guidance. ‘Professional’ employees generally include those in the learned professions. An ‘executive’ employee regularly supervises others, is primarily involved in management duties, and has the authority to hire or fire. Finally, the ‘administrative’ exemption includes employees who exercise independent judgment, and whose primary duty involves office or non-manual work that is directly related to management or business operations.

The new DOL rule, which is anticipated in the spring or summer, increases the current salary threshold for exemption from $455 per week ($23,660 per year) to $970 a week ($50,440 a year), and will also implement automatic annual increases to the salary threshold, tied to certain economic indices.

In order to remain compliant with the regulations and avoid potential litigation, employers must identify those employees whose status may be affected by the anticipated salary-threshold revisions. Now is the time to conduct an internal wage-and-hour audit to assess your employees’ FLSA classifications. This assessment should become an annual practice.

When evaluating your employees’ status, keep in mind that not every employee who receives a salary is automatically exempt — they must also perform exempt duties. You should assess an employee’s day-to-day duties in order to determine whether or not those duties fall within the parameters of the regulations. You may find that a few employees fall into the gray area between exempt and non-exempt status. In such cases, it is prudent to err on the side of non-exempt status, bearing in mind that the employer bears the heavy burden of proving that an employee clearly falls within the terms of an exemption.

With careful review and early preparation, your company can be equipped to act when these sweeping changes to the law go into effect. If you have any questions about the FLSA or the white-collar exemptions, contact any of the attorneys at Royal, P.C.

Karina L. Schrengohst, Esq. is an attorney at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm. Royal, P.C. is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Law Sections

Mapping Out a Strategy

Anthony Gulluni

Hampden County District Attorney Anthony Gulluni

Hampden County District Attorney Anthony Gulluni says the ongoing opioid crisis is a function of supply and demand. In short, there is no shortage of either. And the situation won’t improve until that changes dramatically. Reducing both is the broad goal, and he says the key is partnerships — between law enforcement, the medical community, lawmakers, and other constituencies.

Hampden County District Attorney Anthony Gulluni is rather proud of the large map of the region he represents that now dominates one wall of his office in the Hall of Justice on State Street.

He found the item, circa 1857, on eBay, paid $40 for it — it’s a replica, not an original — and then plunked down more than 30 times that amount (his own money) to have it matted and framed.

“It’s sort of a gift to myself,” said Gulluni, who said he often finds himself looking at the map and noting the many forms of progress that have visited the region over the past 159 years.

But that term certainly wouldn’t be applied to the opioid crisis facing his territory — and the other 13 counties in the Bay State, and the entire country, for that matter.

In fact, it likely represents the biggest law-enforcement issue — and one of the deepest healthcare crises — in the Commonwealth and this region since his map was drawn.

“Historically, this is as bad as it’s ever been,” he said, referring to drugs and the many different tolls they take on society. “We had the crack epidemic in the late ’80s, but this is far worse, on many levels. Drugs have always been an issue, but it’s now reached a fever pitch.”

To map out strategies to address the crisis, Gulluni’s office is forming a task force comprised of law enforcement personnel, healthcare providers, elected officials, and others. These are the parties that will have to work together to not only conceptualize a strategy and its specific components, but secure the money to pay for them and then carry them out.

As he talked about the task force and this crisis in general, Gulluni acknowledged what many have said in various forums across the nation — that this is not a problem that the country or his county can arrest its way out of. But arrests can, and must, be a part of that equation. A big part.

Arrests like the one made in Springfield’s South End in early January that took more than 8,000 bags of lethal ‘Hollywood’ heroin off the street, probably saving many lives in the process (officials attribute at least six fatal overdoses to heroin bearing that stamp). And arrests like the one of Ludlow doctor Fernando Jayma, who was indicted late last year on 41 charges, including illegally prescribing oxycodone and other drugs and also making false Medicaid claims.

“We can’t arrest our way to a resolution of this problem, but we have to keep making arrests to take heroin off the streets and keep it from the people who are addicted,” Gulluni noted.

But the DA noted that this fight will have a number of fronts, including treatment of those currently addicted to opioids and educational efforts aimed at keeping others from becoming addicted.

And while saving lives and stemming addiction are the overriding goals of this initiative, the opioid crisis is a quality-of-life issue for everyone living in this county, said Gulluni, adding that, by his estimation, roughly 50% of the crimes committed in his jurisdiction are related in some way to drugs and, quite often, opioids.

This includes crimes related directly to those distributing and selling those drugs, but also those committed by individuals who will seemingly do anything to obtain the money needed to acquire them. And those committed by individuals impacted mentally, emotionally, and physically by those drugs.

“Addiction drives a lot of people’s crimes in terms of breaking and entering charges, trespassing, shoplifting, all those things,” he explained. “But there’s also domestic violence and other crimes that relate to the breakdown in people’s ability to deal with other people, the stress that addiction causes, and how it affects people’s well-being and their relationships with spouses and others.”

For this issue and its focus on law, BusinessWest talked at length with Gulluni about his ‘all hands on deck’ campaign against opioid abuse, and how it exemplifies the battle being waged across the region and across the country.

A Bitter Pill

When asked if he thought the opioid crisis in this region had peaked, Gulluni offered a contemplative “I really hope so” that spoke volumes about this crisis, how far it extends, and, yes, the uncertainty about whether any kind of corner has been turned despite a mountain of press on the subject and calls for action at the local, state, and national levels.

And when queried about when and how it will become evident that real progress has been made, he said this will be borne out by numbers — such as those concerning everything from arrests to fatal overdoses — but perhaps more importantly by fewer uses of phrases too often heard in cities and towns today.

“We’ll know when there are fewer mothers, fewer brothers, and fewer friends coming to me and saying, ‘I can’t believe it was my son,’ or ‘I can’t believe it was me who’s become addicted and it started with a prescription from my doctor,’” he said. “When we hear fewer stories like that, fewer stories of woe, tragedy, and death, that will be a clear indication of progress, and it’s one I look forward to.”

Getting to that day — and he didn’t want to speculate on how far away it is — will require a concentrated, collaborative effort, Gulluni told BusinessWest, one that will involve law-enforcement agencies, the healthcare community, the court system, community activists, and government leaders, who will be called upon to provide the legislation and financial resources to get the job done.

PillsSpillingFromBottleStockAnd, as mentioned, it will be a multi-faceted initiative, one focused on everything from curbing the supplies of lethal heroin to providing adequate numbers of beds for those trying to recover from addiction, to changing the way doctors prescribe narcotic painkillers.

Adding to the challenge in Hampden County is the fact that Gulluni’s office is already the busiest in the state by most measures, but has a fraction of the staffing that other DA’s offices have secured.

“We dispose of, in many years, the most Superior Court indictments, our District Court is extraordinarily busy — if you aggregate our numbers, we’re the busiest district, inclusive of Boston, Worcester, and Middlesex County, in the Commonwealth,” he explained. “We have 63 assistant district attorneys, Boston has about 140, Middlesex has 130, Worcester has about 95. So, with about half the staff of some districts, we have the same case load, or a bigger one.”

Gullini is lobbying state officials to enlarge his staff, and, in the meantime, he’s deploying the troops he has in ways that might bring the region closer to that day he described earlier.

These broad efforts might be described as efforts to dramatically curb both supply and demand for opioids.

Indeed, as he returned to the subject of arrests and convictions when it comes to those distributing and selling heroin, like that aforementioned batch with the ‘Hollywood’ stamp, Gulluni said that, while the supply of such drugs is seemingly inexhaustible, the seizures do make a difference.

“In terms of the overall supply of heroin in Western Mass. and Hampden County, those 8,200 packets were a drop in the bucket,” he said of the South End seizure, adding quickly that Western Mass. has become a kind of distribution hub for the drug. “And it has practically no effect on people’s access to heroin. But it’s significant nonetheless.

“And to understand that significance, you have to look at it from the context of how that particular heroin was killing people,” he went on. “Taking 8,200 bags of the ‘Hollywood’-stamped heroin out of circulation is significant; through the hard work of the Springfield Police Department and its narcotics group, in that case, a number of lives were saved as a result of that bust. Those bags would have found their way into any number of people’s hands — people suffering from addiction — and they would have used it, with possibly fatal consequences.”

While the South End bust certainly saved lives, the supply of heroin remains a huge issue, he said, adding that untold amounts of the almost ridiculously cheap drug flow into the region every day.

And by cheap, he means $3 or $4 a bag, with most users needing perhaps three of four a day to satisfy their cravings (at the extreme end, it could be a dozen or more). In Vermont, though, the price is much higher ($10 to $12 a bag due to supply-and-demand issues), which is in turn fueling a surge in cases where entrepreneurial criminals buy heroin at low prices in this state and then try to profit by crossing the border and selling it there. But that’s another story — or at least another disturbing aspect of this one.

“It’s a cheap habit, and that’s why we’re seeing this crisis reach this level,” said Gulluni, adding that heroin has become a very affordable alternative to the much-higher-priced prescription painkillers that many addicts began their unfortunate journeys with.

Prescription for Progress

And this brings us to another front in this campaign — stemming the tide in the number of prescriptions of addictive pain killers.

The arrest of Jayma was one manifestation of this effort, said Gulluni, adding that this was the first such arrest during his administration, which began just over a year ago, and likely not the last. Indeed, while he’s not sure how widespread such abuse is, he knows this is not exactly an isolated incident.

“The so-called pill mills — they’re out there,” he explained, adding that he hopes Jayma’s arrest sends a strong message and becomes an actual deterrent.

“I hope it was a strong statement to everybody, including the prescribing community, that there are certain limits by which you have to abide, based on both your professional ethics and the laws of this Commonwealth and the federal government,” he said. “If you’re doing things that are irresponsible or unlawful, whether you’re a doctor or not, you’re going to be arrested.”


Go HERE to view a PDF chart of the region’s law firms


That arrest is part of the ‘curbing demand’ aspect of this fight, said the DA, adding that it is as important as the supply side, and perhaps even moreso, because without demand, there is no need for supply.

And it’s an example of how those involved with stemming this crisis must deal with the present and the future at the same time.

Regarding the former, efforts are focused on educating and treating those currently addicted, and not incarcerating them, said Gulluni, adding that jail time is generally for those who sell or traffic in drugs or those who profit from their use.

Elaborating, he said those arrested for possession of such drugs are, in most cases, given probation. And there is additional focus now on making sure this probation involves a setting where there is treatment for the addiction.

As for the latter, the future, Gulluni said attention must be directed toward the young people that might someday become addicted if they’re not encouraged to start down and stay on a different path.

“We’ve got to engage with young people; we have to engage with people who are at the stage where they’re beginning to use drugs,” he explained. “In terms of prevention and education, we need to get out in front on this issue for the future.”

Already, the DA’s office is engaged with programs to get opioid addicts and those who treat addiction in front of different types of audiences to “tell the stories,” as Gulluni put it, concerning what happened to them — and what could happen to others.

“We’re presenting groups of people — young people, parents, educators — with the information concerning how this affects people’s lives, how it starts,” he told BusinessWest. “We need people to say, ‘no, thank you; I don’t want 100 oxycodone pills because I had a tooth pulled.’ This is how this stuff starts.

“We need to get some of this out of the stream of commerce,” he went on, adding that legislation is being considered that would limit the numbers of potentially addictive painkillers that may be prescribed and the conditions they may be prescribed for.

Such efforts will require partnerships, he continued, adding that steps to limit prescriptions of this nature require the cooperation of the medical community, and represent just one example of how that constituency must work with law enforcement to stem the tide.

Many such partnerships will be needed, he said in conclusion, because of the deep-rooted nature of this problem and the simple yet indisputable laws of supply and demand.

Challenging Road

A quick look at Gulluni’s prized map reveals just how much Hampden County has changed since 1857.

Missing from this snapshot are countless roads, bridges, dams, reservoirs, colleges, airports, and parks — all of which have contributed mightily to the current landscape.

As has the ongoing opioid crisis, which, of course, doesn’t show up on any map or limit itself to any borders — real or imagined.

It represents history, and not the kind that society will look back fondly on, like a map drawn 159 years ago. And it will take an historic effort to relegate it to the past tense.

The state’s youngest and newest district attorney is ready and willing to make such history, and he’s not wasting any time in that effort.

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

Law Sections

Two Steps Behind

By KATHERINE E. McCARTHY

Katherine E. McCarthy

Katherine E. McCarthy

While not a new development, it is clear that the law can rarely keep up with rapidly changing technology.

Increased surveillance technology, a host of mobile applications (including a popular rideshare app, Uber), GPS technology, and spyware, just to name a few, all present significant legal issues that most of us have never considered.

In this article, we’ll discuss this new technology and what it could mean for employees, business owners, the general public, and municipalities.

Body Cameras

In the wake of civilian unrest in places like Ferguson and Baltimore, there has been an outpouring of support for police departments to adopt the use of body cameras. In theory, body cameras appear to be a great idea, and technology is available to implement the practice. Recording a police officer’s interaction with a civilian not only helps protect the civilian and hold police officers accountable for their actions, but also helps to protect the police officer against false claims of misconduct.

So what’s the problem? There are several, not the least of which is the financial strain on cities and towns. Next, audio-recording individuals without their consent can run afoul of the Commonwealth’s wiretap statute. Violation of the wiretap statute is a crime.

There are also privacy concerns. Members of the public may be inadvertently recorded, and those recordings could be disseminated under public-record-disclosure laws. Some additional issues to consider include whether a police officer is required to turn off the camera when interviewing a victim or witness of a crime, and, if not, what is the result if a police officer receives private medical information related to a suspect or victim? Is the video recording of such information a potential violation of medical privacy laws?

Still more issues are presented once video is recorded on a body camera. Like any other evidence used in a legal proceeding, the footage must be stored in such a manner that the chain of custody is not disturbed. If the chain of custody is in some way tainted, the admissibility of the evidence gathered on a body camera may be excluded from a legal proceeding, thus eliminating the purpose of the camera. Storing daily video footage is very costly and requires specific procedures and practices, many of which are cost-prohibitive.

It is clear that the law as it stands today does not adequately address the issues presented by the use of body cameras. Legislation is pending, but it will be some time before the stage is set for the proper, and legal, implementation of this practice.

Rideshare and Homeshare Services

Another hot topic in the realm of law and technology is the soaring popularity of the rideshare company Uber. Uber is a mobile application (commonly referred to as an ‘app’) that allows consumers to request a ride from drivers who use their own vehicles. The request is made via the Uber app and sent to Uber drivers located in the same geographical area as the consumer. Uber is growing in popularity at such a rate that taxi drivers and even some cities and towns are seeking to limit or even eliminate its presence.

To many of us, Uber seems to have come upon the scene without any forewarning. So it is perhaps not surprising that regulations have not yet been passed which address rideshare businesses. Again, the law has not caught up with technology. This leaves cities, towns, and the courts with little guidance as to how to treat these newly evolving businesses.

Airbnb is another popular service that allows customers to rent an entire house, apartment, or room from private individuals advertising on the website. While this is seemingly a win/win for both parties, liability is a serious concern. It is unlikely that a homeowner’s insurance policy would cover intermittent renters. Even most renter’s policies would not cover such a scenario. Like Uber, there is an absence of regulation that would exist for other similar services, such as hotels, inns, and bed and breakfasts.

By taking advantage of our ability to quickly and efficiently communicate with individuals all over the world, enterprising homeowners may be putting themselves at financial and legal risk they never considered.

Spyware

Yet more issues are presented by the use of technology to surreptitiously monitor someone’s online activity. Commonly referred to as spyware, it is not infrequent in the realm of domestic relations for a spouse to use this technology to monitor the other spouse’s online activity. Unfortunately, using spyware in this manner could run afoul of Massachusetts privacy and wiretap laws, despite the fact that this technology can be purchased from many large retailers.

Undiscerning customers rarely consider such ramifications when purchasing software that is available at their local retail store. Because ignorance of the law is not a defense, individuals who misuse this software expose themselves to potential liability.

Keeping up with technology is no easy task. It seems every day there is a new app or gadget that seemingly nullifies all technology that came before. Therefore, it should come as no surprise that the law has a difficult time keeping up with changes in technology. The consequence is that cities, towns, and private individuals do not always know what is permitted under the law and what is not when it comes to evolving technologies.

The issue transcends every area of the law, from domestic relations to employment to civil rights. While the Legislature and courts continue their efforts to keep up with technology, that large gaps will inevitably remain. Caution, however, dictates that consumers at least educate themselves on the potential impact of the use of often-unregulated technology.

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

Law Sections

Avoiding Probate Litigation

By TALIA K. LANDRY, Esq.

 

Talia K. Landry

Talia K. Landry

Many of our parents and grandparents are members of generations that value hard work and family above and beyond possessions. When times were tough, they counted their blessings rather than their money. Members of this generation know the true value of a dollar and often made significant sacrifices, all to provide better futures for their children and grandchildren.

These values and frugality often extend into individuals’ elder years, and many continue to live modest lifestyles so they can leave a legacy for their loved ones. While it is not hard to imagine these generous parents and grandparents, it is hard to imagine being tangled up in a heart-wrenching and protracted legal battle with family, all over grandma’s last wishes.

Probate litigation is emotionally charged and extremely difficult on all parties. These matters involve frustration, pain, and grief, as families are torn apart over money or even the personal possessions of a deceased loved one. These situations can even begin prior to a loved one’s passing, and are just as hard to navigate during life as they are after death.

In 2016, for example, the Massachusetts Appeals Court held in Vitale v. Koen that a deed where an individual gave her daughter a house was indeed valid — despite her own testimony that she lacked capacity and was subject to undue influence on the part of her daughter. While this snapshot is not a full picture of the matter, it does illustrate how emotionally charged this type of litigation can be.

How can you help your family avoid situations like this? While there is no foolproof way to prevent probate litigation, there are some suggested precautions that can ensure both quality of life for your parent or grandparent, and that their final wishes are followed.

First and foremost, take an active role. This is important not only to maintain a meaningful, happy, and loving relationship with your elderly parent or grandparent, but also so that you have regular opportunities to observe how effectively they are managing their affairs, and if it appears that someone may be taking advantage of them.

Maintaining an active role in their lives will also allow you to help them with making necessary arrangements for care or a companion, in the event they need assistance. Where possible, work together with other family members to ensure transparency and harmony for everyone.

Next, encourage your parent or grandparent to be open regarding the arrangements they have made for themselves and the reasons behind them. It is true that many elders tend to be private about their personal and financial matters, but encouraging conversations with family after arrangements are in place makes it clear what the true intentions are.

This may help discourage litigation after the elder’s passing. Additionally, if the matter does progress to the unfortunate point of litigation, past conversations could assist in proving the elder’s true intent. Most importantly, remember that, while you may disagree with the arrangements, it is ultimately the elder’s decision as to how to dispose of their assets. Unless there is reason to believe that an elder has been victimized by undue influence, their decisions should be respected.

Finally, if you are concerned that an elder is being mistreated in any way, do not wait to address the situation. Document your concerns. If you are uncomfortable addressing the issues yourself, contact your local elder-services provider to make a report. Many elders are unaware they are victims. Do not let your loved one suffer in silence or ignorance.

There are, of course, instances where litigation may be necessary, especially in circumstances where a family member or friend may have participated in isolating or influencing the elder. But as a general rule, litigation should always be a last resort. In the event that you are involved in a situation like this, it is crucial to seek advice and representation from qualified counsel. A well-versed probate-litigation attorney will not only assist with navigating legal issues, but can also be a resource to help alleviate the stress and emotional toll of probate litigation.

Attorney Talia K. Landry is an associate attorney with Bacon Wilson, P.C. and is a member of the firm’s litigation department. She assists clients in all areas of litigation, with a specialized focus in probate litigation, including will contests, trust disputes, and other contested estate and probate matters; (413) 781-0560; [email protected]

Law Sections

Law and Disorder

StressDPartLaw2Many lawyers say they entered the legal field to help people with their problems — often very difficult, serious problems. The danger is internalizing those problems and making client stress a permanent part of one’s psyche. That pitfall, and other stressors common to lawyers, from time pressures to sometimes-adversarial work relationships, contribute to unusually high levels of burnout, depression, substance abuse, and even suicide in the legal field. One challenge, experts say, is to recognize those dangers before they take root.

To many who aspire to the field, being a lawyer is a job to die for.

Unfortunately, many do, far too young. According to the Centers for Disease Control, lawyers are more likely than almost any other type of professional to commit suicide —  ranking behind only doctors and dentists — and are 3.6 times more likely to suffer from depression, a common trigger for suicide. Others deal with poor health due to overwhelming stress.

“A lot of lawyers are dissatisfied with their work, for reasons including long hours, conflicting demands on their time and energy, and the exacting and confrontational nature of the work,” said Linda Benoit, a licensed clinical social worker with Lawyers Concerned for Lawyers (LCL), an organization dedicated to helping legal professionals navigate the pitfalls of career stress — and worse. “Many lawyers are leaving the profession, and it appears job burnout is implicated in the exodus.”

Benoit spoke at a recent seminar at Western New England University School of Law titled “Stress Management for Lawyers: Building Resilience and Avoiding Burnout,” talking with lawyers and law students alike about the health problems, physical and emotional, common to their field, and how to tackle — or, better, avoid — them.

“Realistically, you could plug a lot of occupations in — you could say the same thing about elementary-school teachers or social workers — so take it with a grain of salt,” she said about the general topic of job stress. “Yes, some things are unique to each profession, but there are more likely to be commonalities.”

Still, an American Bar Assoc. survey suggests that more than one-third of lawyers are dissatisfied and would choose another profession if they could, and 15% to 18% suffer from some measure of substance abuse, compared to 10% of the general population, so something is clearly going on.

“If these things are particular to the legal field, why is that?” Benoit asked. “There’s something called an addictive personality … is there a legal personality?”

She cited several common characteristics of lawyers, including a need for achievement, extroverted and sociable — yet competitive and aggressive — personalities, a focus on the economic bottom line and material concerns, and, perhaps as a result, a higher incidence of psychological distress and substance abuse.

According to CNN, at least seven state bar associations have become so concerned about suicides that they took measures to stop the pattern, adding a mental-health component to mandatory legal continuing education.

“One of the things we have to guard against is unhealthy ways to alleviate stress,” said Eric Gouvin, dean of the WNEU School of Law. “It’s easy to get caught up in short-term alleviation of stress through drugs and alcohol, which only makes things worse in the long run.

“This has always been an issue in the legal profession,” he went on. “The only profession with a higher rate of alcoholism is the clergy, which has the same dynamic of folks trying to help people deal with their problems. Those problems are not trivial; they can get to you. And if you find a release with a drink at the bar, that could easily become three, four five drinks.”

“You have to learn how to talk yourself off the ledge,” said Barbara Bowe, another licensed clinical social worker with LCL. “And if you can’t do that, you had better have some people in your life you can call to help talk you off.”

A Question of Empathy

Benoit pointed out that most stress is psychological; while many people think of stress as something that attacks them, they bring their own beliefs to it. She cited the famous Anais Nin quote, “we don’t see things as they are; we see them as we are.”

As an example, she recalled a client who was upset that his wife frequently yelled at him. But he wasn’t responding to her only; he had been severely ridiculed and yelled at growing up, “and he was responding and filtering and exaggerating it based on his own history.”

How does that apply to lawyers? Basically, Gouvin told BusinessWest, they are constantly saddling themselves with the feelings and concerns — often negative — of others, which warps the way they see the world.

“People generally come to lawyers because they’ve got problems, and lawyers tend to get into this line of work because they want to help people solve their problems. It’s easy for lawyers to take on clients’ problems as if they were their own, and that’s where the stress comes in,” he explained.

Linda Benoit, left, and Barbara Bowe

Linda Benoit, left, and Barbara Bowe say Lawyers Concerned for Lawyers is a response to a very real tendency for attorneys to succumb to stress, depression, substance abuse, and even suicide.

“Most successful lawyers, over the long term, are able to get a little professional distance between their clients’ problems and their own individual life,” he added. “But sometimes folks need to be reminded of ways to take care of themselves and their mental health. They get so wrapped up in these issues, and if they don’t take a minute to step back every now and then and find a way to center themselves, the stress will accumulate over time and cause psychological and physical damage.”

Indeed, Benoit said, chronic, unmanaged stress is implicated in 50% of all illnesses, contributing to atherosclerosis, hypertension, weight gain, memory impairment, decreased immune-system functioning, increased blood-glucose levels, and mental-health and substance-abuse problems.

“In spite of all this,” she noted, “almost half of all adults say they’re not sure they’re doing enough to manage stress, and one in five Americans say they do nothing to manage stress.”

And managing the stress of others makes it even worse, Bowe said. She spoke about one of her past clients, a lawyer on the cusp of retiring from decades of solo practice. His wife, a teacher, had recently retired herself, so they planned on getting a boat and setting sail into their leisure years. “But he presented with a lot of anxiety, a lot of panic. He lost sleep, he lost weight, he couldn’t swallow. He had talked to his doctor about his blood pressure and cardiac levels.”

And then, she discovered the core issue. It turned out her client’s father had “gone down the rabbit hole” after retirement, dealing with issues that landed him in a psychiatric hospital. He ended up killing himself when her client, the one now approaching retirement, was 18 years old.

“He was afraid he would wind up like his old man, even though that wasn’t his story at all,” she said. “So whenever his wife talked about retirement, he broke into a panicked sweat, sweaty palms, wondering, ‘if I retire, what will become of me?’ He had the sense, because of what happened to his father, that would be his future, too.”

While that’s not the same as empathizing with a client, Bowe sees some similarities between that man and lawyers so emotionally involved with their clients that they bury their own needs, and make their clients’ worries their own.

“You need to have the ability to step outside of that,” she explained. “Maybe you put your best case together and things don’t go as planned. So many things are out of your control. How do you manage that?

“As a laywer,” she went on, “you can always do more, and clients expect you to do more. At some point, internally, you have to say, ‘I’ve dotted my Is, I’ve crossed my Ts. I’ve done what I can do, although someone thinks I could have done more.’”

Though attorneys see themselves as problem solvers, Bowe said, there have to be limits. “You have to figure out your own level of stress. If your satisfaction is based on what the client says, you’re in trouble. It’s never going to be perfect, so you have to decide for yourself what is good enough. It’s never going to be 100%. That’s not the nature of law.”

Change the Tapes

Benoit was quick to point out that not all stress is negative; sometimes, it can serve as a motivator. “Any kind of stress can have beneficial benefits, depending on the strength of the stressor and how an individual deals with it.”

She pointed out the difference between ‘eustress’ — stress that provokes a positive response, from enhanced performance to improved mood to sharper memory — and ‘distress,’ which produces a negative cognitive response, like nervousness, anxiety, fatigue, and depression.

Most jobs have stress triggers, she added, from lack of communication in the office to unrealistic expectations and time demands; from lack of appreciation to job insecurity. Lawyers have specific stresses on top of those, including billable-hour pressures, the sometimes-adversarial nature of their working relationships, perfectionist tendencies, student-loan debt, and a sometimes-poor public image of the profession.

It’s important, she said, to take control of one’s thoughts when those pressures start to overwhelm. “What is your cognitive response? Are you able to visualize a positive outcome, or do you dwell on catastrophic, worst-case thinking?”

Bowe referred to the importance of “changing the tapes” that play in one’s head.

Eric Gouvin

Eric Gouvin says people often become lawyers to help others, but tend to make those problems their own.

“You have that power. It doesn’t mean the cognitive fairy will come to your house and change everything, but you can work to develop a pattern of visualizing and assessing a situation from a more positive standpoint, and ask, ‘what kinds of resources do I need to draw in to do better on this?’” she explained. “Some lawyers put their head down and keep moving, even though it’s not necessarily in a positive direction.

“You can definitely bring a different mindset to a situation to influence an outcome,” she went on. “But you have to have the desire and want to do it.”

Benoit agreed. “The stress isn’t going to go away,” she said, “but it doesn’t have to be this constant negative thinking. When you do that, you’re doing violence to yourself. Why would you want to participate in that?”

Building resilience against factors that trigger stress can come in many forms, she went on. “If you’re in a toxic or hostile work environment, you may have to cut your losses and leave. If you’re in a solo practice, maybe hire someone to help you develop or redesign career goals.”

Other tips include taking firmer control of one’s schedule by rigidly prioritizing tasks, getting away from the desk once in a while by taking short breaks, avoiding unpleasant colleagues as much as possible, educating clients about the process of law (to counter unrealistic expectations), and avoiding workaholism.

“Set limits, and don’t put all your well-being eggs — how you feel about yourself — in your work basket,” Benoit said. “You’re more than your occupation. Make time for yourself and your relationships every day.”

And, overall, be realistic. “You don’t have to be perfect, or read every journal article,” she said. “Remind yourself that you can’t solve all your clients’ problems, even though they will want you to. Remind yourself that you can’t save everybody.”

Finding Purpose

Obviously, clinical depression, substance abuse, and suicidal thoughts aren’t issues people can defeat through positive thinking, and LCL offers resources to lawyers struggling with those demons.

But for everyday stresses, a little mindfulness doesn’t hurt. Some of Benoit’s stress-reduction tips are applicable to many fields, such as finding humor in situations, setting aside time for rest and leisure, avoiding drugs and alcohol, maintaining good nutrition and sleep habits, setting small, achievable goals, and having two specific friends: “one friend you can vent with, and one you can’t.”

It also helps, she said, for lawyers to remember their purpose and passion. She cited a mission statement from the American Bar Assoc. that touches on concepts like defending liberty and pursuing justice, and said lawyers should step back once in a while and reassess why they chose the career to begin with.

“Is it being a defender of rights? A commitment to social justice? Being a protector of human dignity, or a crusader against discrimination? Maybe there are some bigger things that will re-energize you. You can change the system.”

Joseph Bednar can be reached at [email protected]

Law Sections

Knowing the Answer Can Save Employers Much Aggravation

Hunter S. Keil

Hunter S. Keil

Patricia M. Rapinchuk

Patricia M. Rapinchuk

By HUNTER S. KEIL and PATRICIA M. RAPINCHUK

Whether an employer is obligated to pay its employee overtime should be a simple question to answer. A recent decision in the federal courts in Massachusetts, however, illustrates that this is not always the case.

A quick primer on certain aspects of wage-and-hour laws may be helpful. First, under Massachusetts wage laws, failure to pay wages, including overtime, on a timely basis leads to an automatic trebling of damages regardless of the employer’s knowledge or intent. Under federal wage laws, there is no automatic trebling of damages.

Second, under both federal and Massachusetts wage laws, employees must be paid at a rate of 1.5 times their normal hourly rate for all hours worked over 40 hours per week. There are, however, a number of exemptions to the overtime laws under both Massachusetts and federal wage laws.

While the Massachusetts and federal exemptions often overlap, they are not always identical. The most common exemptions are the ‘white-collar exemptions’ for executive, administrative, and professional employees, which exist under both Massachusetts and federal laws. There are also a wide range of less-common exemptions. For example, there are exemptions from federal overtime laws for farm implement salespeople, railroad employees and taxi drivers.

Under Massachusetts overtime laws, there are exemptions for employees employed in a gasoline station, as seamen, and in nonprofit schools or colleges.

A recent case involved one of these less-common exemptions. In Lambirth v. Advanced Auto Inc., the plaintiff was an automotive technician. He routinely worked more than 40 hours per week. Although he was paid his regular hourly rate for all hours worked, he was never paid 1.5 times his regular rate of pay for his hours which exceeded 40 hours.

After he was terminated, the employee brought suit in federal court alleging that the failure to pay time and a half for his overtime over a period of approximately a year and a half violated federal wage laws, and that he was entitled to treble damages for that unpaid overtime under Massachusetts wage laws because he was not paid all wages owed to him on a timely basis. The employee did not bring a claim for overtime violations under Massachusetts wage laws, presumably because the Massachusetts overtime law contains an overtime exemption for ‘garagemen,’ which arguably applied to the employee.

The employer filed a motion to dismiss the Massachusetts claim, arguing that Massachusetts wage laws, and particularly its automatic treble-damages provision, could not apply to claims alleging a violation of federal wage laws.

The judge denied the employer’s motion to dismiss, ultimately holding that Massachusetts wage laws, including the treble-damages provisions, applied to the untimely payment of all wages to which an employee is entitled whether under Massachusetts or federal law. While the judge declined to rule on the viability of the employee’s claimed right to overtime under the federal wage laws, and noted a federal exemption similar to the garagemen exemption found in the Massachusetts wage laws, the judge nonetheless allowed the claim to proceed.

The full impact of this decision, and others that preceded it, remains to be seen. As a practical matter, however, employers need to be sure that they are in compliance with both Massachusetts and federal wage laws concerning payment of overtime in order to be protected from judgments requiring mandatory treble damages for failure to pay overtime.

Because treble damages are mandatory for any violation, employers cannot defend a claim by arguing that they were in compliance with Massachusetts wage laws and did not know about the differences in federal wage laws.  Presumably, the employer in the Lambirth case believed that it was in full compliance with Massachusetts laws when it determined that the plaintiff fell within the garagemen exemption and was entitled not to time and a half, but only to straight time, for hours worked over 40.

The real takeaway from the decision is that all wages, regardless of their source, are covered by the Massachusetts wage act and subject to treble damages if they are not paid on a timely basis.

Hunter S. Keil is an associate with Springfield-based Robinson Donovan specializing in employment law and litigation; Patricia M. Rapinchuk is a partner with the firm who specializes in employment law and litigation.

Law Sections

The Ultimate Role Reversal

By HYMAN G. DARLING, Esq.

Hyman G. Darling

Hyman G. Darling

One of the most challenging aspects of aging can be the role reversal that often occurs as aging parents need care from their adult children.

This dynamic can be very unsettling for all involved; it is difficult for some parents to admit they need help, and then to accept that help, and it is difficult for some children to provide the care and support an elderly parent may require. Where possible, it is always best to address these situations as a family group, and as far in advance as possible.

If you see a situation arising in which your parent will need care, you should begin planning to assess their needs and wants. If a parent has multiple children, this planning should include them all. Sadly, siblings often perceive each other as taking advantage of parents for financial gain. Even more sadly, some children do indeed take financial advantage of elders. A family group working together can benefit both parents and children, with the hope that the joys and hardships of caring for parents will be shared between siblings.

Seeking Help

It is often a good idea to enlist the services of a geriatric care manager. These professionals generally possess a wealth of information about available services and programs, and can provide support to elders and children alike. A care manager can also assist with admission to an assisted-living or nursing facility, if and when that becomes necessary. They will have ideas and strategies to share about every aspect of elder care, from financial considerations to mental health resources; from medication management to respite for caregivers.

The plan must focus on parents’ needs. These will almost always include transportation, medical care, dietary needs, hygiene, assistance with finances or record keeping, and household duties. The plan should also include possible avenues to recognize and adapt to parents’ changing needs, because medical issues may increase, and additional services may become required. Some ideas or services that families find helpful include adult day-care facilities, permanent or temporary institutionalization, or perhaps even moving parents between siblings.

The needs of parents, however, are not the only consideration. Children caring for aging parents may become depressed or overwhelmed, so any well-thought-out care plan must also include support for caregivers.

These caregivers often need counseling, particularly those caring for a parent with dementia, which comes with its own unique set of demands and challenges. There are many counselors and support groups that can help caregivers realize they are not alone, help to deal with ongoing or changing issues at home, and preserve their own mental and physical health. Additionally, paid home care may be a good supplement to care from family members, when the primary caregivers need respite.

Financial Matters

Financial planning is also a crucially important part of the considerations. Often, caregiver children may need to use the Family Medical Leave Act to take a leave of absence from employment. Some may even stop working in order to stay home and provide care for the aging parent. The family may wish to meet with an attorney and draw up a written agreement where parents will financially compensate children for care. These ‘parental-care agreements’ can be an important tool to use when an elder is staying at home.

Finally, be ready to recognize that in-home care from children may not be possible or appropriate for every family. In some cases, it is simply not possible to avoid a nursing home. This may be due to financial considerations, extensive care needs that a child cannot provide, or some combination thereof. Institutionalization in a nursing home is generally quite expensive, and can cost upwards of $10,000 per month in some cases.

It is heartbreaking to realize that a lifetime of savings may be wiped out by long-term-care expenses. There are, however, strategies that families may use to cope with the expense.

Faced with a health crisis and the possibility of nursing-home care, many families are tempted to transfer money from parents to children as soon as illness strikes. Such a transfer is not an effective way of securing family assets. In many cases, any transfer of funds from the elder will commence a five-year waiting period for federal and/or state long-term-care benefits. With very rare exceptions, this five-year waiting period applies to all elders who have made a transfer, regardless of the value of the gift or the intention behind it.

Long-term-care insurance is becoming more and more appealing as a means to protect assets in the event of institutionalization. Generally, this insurance may be used to cover or defer the cost of a nursing-home, or even to pay for in-home care. Some insurance companies may even combine life insurance, annuity, and long-term-care benefits within a single policy.

Those considering purchasing a long-term-care insurance policy should consider all the risks and benefits. Those will be determined by income, ability to pay premiums, and the value of other assets that the family wishes to preserve. The need for long-term-care insurance has become so prevalent that it should likely be considered a ‘required’ policy, similar to life, homeowner’s, and disability insurance. It is very important to have a trusted agent review elders’ financial situation carefully to ensure the proper amount of insurance coverage is purchased. A policy with at least five years of coverage may make it possible for elders to gift away some assets upon entering a nursing home.

Their care would then be covered by the insurance policy for the next five years, and upon termination of that insurance coverage, the elders will then potentially qualify for Medicaid. This type of planning must be done very carefully, preferably with the advice of a trusted elder-law attorney possessing specific knowledge and experience.

Plan Ahead

If you foresee a situation arising in which your parent will need your care, begin planning as soon as possible to assess the needs of all parties, hopefully before a crisis demands immediate action. This will bring peace of mind to you and your parents, and will assure the best possible chance of successful planning, health, and happiness for parents and children alike.

Attorney Hyman Darling is chair of Bacon Wilson’s Estate Planning and Elder Law departments. His areas of expertise include all areas of estate planning, probate, and elder law. He is a frequent lecturer on various estate-planning and elder-law topics at the local and national levels; (413) 781-0560; [email protected]

Law Sections

Let’s Talk

WeddingDivorceARTdp

Couples who decide to end their marriage are often dealing with the most upsetting, stressful time of their lives, and the prospect of fighting tooth and nail in court to decide issues like child custody, visitation, and finances only piles on the emotional trauma. That’s why divorce mediation — a less costly, less stressful alternative to a contested divorce — is gaining in popularity. It’s a process that doesn’t deal in who’s right or wrong, but allows two people to take control of a bad situation and talk it out — often for the first time in years.

Divorce is difficult — perhaps the roughest, most emotionally draining experience of a person’s life.

So why, Michael Frazee asks, would a couple want to make it even harder?

“The court system already struggles to problem-solve in divorce, and then they add regulations, they add rules, and they add requirements to each divorce without regard for the actual needs of the parties, and especially the needs of the children,” said Frazee, a family-law attorney who practices with Divorce Mediation Group in Springfield.

“Mediation doesn’t impose any template on any case because every family situation is different,” he went on. “We help them navigate the divorce process by applying creative problem solving. Really, we help people come to their own solutions, as opposed to imposing a boilerplate approach on them, which is what the court system does.”

In other words, he told BusinessWest, while the litigated divorce process has only become thornier to people already going through a tough time, “we live in solutions; we don’t live in problems.”

Increasingly, divorcing couples are taking notice, and the field of mediation has experienced an uptick in recent years even as the divorce rate has quietly crept down.

“The goal is to have a more respectful, less expensive process — both emotionally and financially — while trying to resolve issues of divorce or dissolution of marriage,” said attorney Julie Dialessi-Lafley, who counts divorce mediation among her practice areas at Bacon Wilson in Springfield. “That can include child-custody issues, who pays for college education, uninsured medical expenses … anything the parties might disagree on. In mediation, it’s supposed to be a non-litigious setting with a neutral mediator, who tries to help the parties come to their own agreements and resolution.”

At its heart, the process is all about control, she explained.

“Mediation differs from litigation in the sense that the parties craft their own settlement; they’re advocating for themselves,” she said, noting that, while the couple may occasionally retain attorneys, they don’t control the process for the two parties. “The mediator’s role is really as a facilitator. The goal is to get them to an agreement. Judges don’t want to make this decision. A judge will say, ‘I’ll decide this, but at the end of the day, you’re in the best place to know what’s in your best interest and your children’s best interest; you know more about your life than I do.’”

For this issue’s focus on law, BusinessWest examines the process of divorce mediation, and — considering the financial and emotional benefits — asks the question, why would a couple not choose mediation?

Give and Take

As it turns out, there are several answers to that question.

“I think some people have the perception that their spouse will not engage in a cooperative process, and some feel like they need the additional strength of having a laywer to rely upon,” said Bruce Clarkin, who launched Divorce Mediation Group in 1989. “But the people we see are so relieved to have a solution to the biggest problem they ever face in their life; I think it motivates them to work really hard to get a solution.”

And they’re doing so at a much lower cost than paying two attorneys to fight out every issue in court.

Julie Dialessi-Lafley

Julie Dialessi-Lafley says the cost of mediation — both financial and emotional — is typically far less than in a litigated divorce.

“At a time when the legal cost of divorce is exploding exponentially, the costs of a mediated divorce remain pretty stable and predictable,” Clarkin said. “We can predict at the outset what mediation is going to cost about 80% of the time, and the typical cost is between $1,500 and $2,000.

“The reason the cost is so low is the process is so efficient,” he went on. “It’s very problem-solving-oriented. You learn how your clients see the future and try to help them achieve that goal. Meanwhile, litigation has only become more expensive and is often so unsatisfactory.”

Frazee agreed, adding that it’s mainly a lack of awareness about the mediation process that holds some couples back. “It’s a cooperative, collaborative process. And, again, when you consider the expense of litigated divorce versus the expense of a contested divorce, why wouldn’t someone at least try it? We do a free consultation, and the vast majority of people who meet with us come to understand what the process is, and want to engage in the process right away.”

He added that some 80% of all litigated divorces wind up back in court for some tangential issue. “Whereas, with a mediated divorce, you’re rarely back in court. You’ve already set yourself, as a divorcing couple, on a path to better parenting and better communication, as opposed to being adversaries in the court system.”

Dialessi-Lafley says the overwhelming majority of clients are positive about forging an agreement they can both live with. One exception would be couples with serious, closeted issues involving each other or their children that need to be worked out in therapy before they can work on their divorce agreement.

“We’re definitely not therapists,” Dialessi-Lafley said, but the training necessary to be certified as a divorce mediator emphasizes getting divorcing couples to communicate more effectively — perhaps more than they have in years.

“In all these years,” she said, thinking back over 19 years in practice, “the common thread in every divorce is lack of communication. They don’t communicate about intimate issues, child issues, financial issues … whatever the issue is, communication is the problem.”

Agreeing to mediation, she went on, is basically an agreement to communicate — to be willing to talk and listen in equal measure.

“There’s no blame here. It’s more, ‘let’s see if you can actually hear each other,’” she told BusinessWest. “I have had parties who would run each other over in the street if given the chance. When they come in, they’re angry and tense and negative about the process. But if they’re willing to try it, and you can get them to open up, it’s a start.”

Some couples require what she called ‘shuttling’ at first, putting them in separate rooms initially and talking with them one on one. Often, they eventually wind up in the same room, talking.

As for couples who choose litigation, “they may not know about mediation or understand it,” Dialessi-Lafley went on. “Or, very commonly, one party may have a stronger personality, and the other thinks, ‘I won’t be able to advocate for myself and say what I need to say.’ One party may be worried they’ll give up more than they should.”

However, she added, “the goal is to get to a resolution, and the process itself is designed to keep the parties respectful of each other — I wouldn’t use the word ‘amicable,’ but at least able to have less tension and less consternation between them.”

Building Trust

Alison Patton, a family lawyer and mediator who blogs at lemonadedivorce.com, said the ideal mediator, first and foremost, listens intently and asks questions not for the purpose of deciding who’s right or wrong, but to better understand two people who are seeking to resolve some very challenging issues.

“When your mediator is listening, validating, and empathizing with your spouse, this is a good thing,” Patton writes. “It may not feel good; it may bring up the ‘not true! What about me!’ feelings typical of what one feels in mediation when the other person is getting to talk.

“But know that your mediator’s focus on your spouse is intentional and necessary to get your case to a settlement,” she continues. “It doesn’t mean your mediator is taking sides or agreeing with what your spouse is saying. It doesn’t mean your mediator likes your spouse more or that he doesn’t believe your version of the facts. You have a good mediator if he is intently listening and nodding his head and asking your spouse clarifying questions and summarizing what your spouse said (as long as you get your turn too).”

Frazee agreed. “Being an active listener is imperative as a mediator, and guiding the discussion — and note that I didn’t say controlling the discussion.”

Clarkin went a step beyond that and said the mediator’s role is one of leadership, which includes getting both parties to totally buy into the process and have confidence that he is neutral. “Some people come here and fight like cats and dogs, and we’re trained to deal with that. But even then, when clients have confidence in the process, it most often works out in their favor.”

Bruce Clarkin, left, and Michael Frazee

Bruce Clarkin, left, and Michael Frazee say a good mediator shows the kind of leadership that breeds confidence in his or her neutrality.

It helps, Frazee added, that anything said to a mediator is completely private and confidential and, importantly, inadmissible in court on the rare occasions the couple can’t work out their own solution and opt for litigation. Those who come to recognize the mediation room as a safe space often surprise themselves, and their partners, with their candor.

“Honestly, a lot of people say things to each other that could have been said — and should have been said — years before they sat down with us,” he went on. “That sort of openness — especially between parents — is critical to the success of the process. I agree that the mediator leads in the sense of guiding the dialogue between the parties, but the goal is always working toward a resolution of the issue.”

That said, Clarkin added, “I don’t inquire about what went wrong in the marriage. I always see that as information that belongs to clients, and most of the time, it’s not helpful for me to hear it.”

A Few Clicks Away

What has been helpful for practitioners of divorce mediation, Clarkin told BusinessWest, has been the tendency of consumers to research what they plan to purchase on the Internet — a trend that affects everything from car sales to travel bookings to … divorce.

“Mediation is coming of age at the same time the Internet is becoming the default resource for the middle-class consumer,” Clarkin said. “Years ago, when someone was on the cusp of divorce, they asked their brother-in-law what lawyer they should call; now, when a divorce is on the horizon, they go to the Internet. It’s self-determination; people are making decisions before they even call. And by the time people get through using the Internet to research this, they’ve already made a decision whether mediation is likely to work for them. It’s really changed the landscape in a huge way.”

In some cases, Frazee said, “we see people who have already started charting an agreement and want to make sure their agreement will be approved by the court. They’re not coming to us for verification, necessarily, but a lot of them understand what the process is and have already started framing some areas of agreement and disagreement.”

In other words, they’re taking control. “If the same people go to the court system, they have a template and expenses imposed on them.”

That matter of control, for couples who can bring themselves to talk rationally with each other, is a major benefit of mediation, Dialessi-Lafley said. After all, the issues involved in divorce are wide-ranging and can impact families for decades. “And you can’t quantify the emotional impact of a litigated divorce.”

A contested divorce is also subject to the scheduling whims of the court, whereas a couple in mediation agrees to their own schedule and timeline, which peels back another layer of stress, Dialessi-Lafley added.

For an increasing number of divorcing couples, just stepping back from the stress of constant fighting and actually trying to communicate makes a lot of sense.

“When I see one spouse listening, validating, asking questions, and empathizing, I don’t assume he or she is agreeing with what is being said or backing down. It means to me that this person is mature and kind enough to honor and respect their spouse’s feelings, in spite of it all,” Patton writes. “Truly, the real secret of divorce mediation is that simple — feeling heard, honored, and respected by the person you loved enough to marry.”

Joseph Bednar can be reached at [email protected]

Law Sections

Do I Need Both Documents to Ensure My Wishes Are Carried Out?

By VALERIE VIGNAUX, Esq.

Remember the Obamacare ‘death panels?’

Valerie Vignaux

Valerie Vignaux

In the months leading to the passage of the Affordable Care Act, Sarah Palin coined that term to describe a provision that allowed Medicare to reimburse doctors for end-of-life discussions with their patients. It was a successful public-relations ploy to turn the American public against the act, painting it as the work of a nefarious bureaucracy out to kill off the old and sick to save a buck.

The offending provision was removed before Congress passed the Affordable Care Act.

The tides have changed. Medicare is soon to announce that end-of-life, or ‘advance-planning,’ conversations will be reimbursed. The proposed regulation was introduced in July of this year by the Centers for Medicare and Medicaid Services and, with little to no opposition, is expected to take effect in January 2016.

What does an advance-planning conversation sound like?

A doctor (or nurse practitioner or physician’s assistant) should get a sense of what her patient’s wishes are regarding resuscitation, intubation, life support, and palliative care. These wishes can then be documented in a medical orders for life-sustaining treatment (MOLST) form. In addition, the medical professional should encourage her patient to consider who can be trusted to make medical decisions in the event the patient is incapacitated.

That trusted individual can be named in a healthcare proxy. Both the MOLST and the healthcare proxy are vital documents, but each involve different aspects of advance planning. Here’s what you need to know.

MOLST

The Massachusetts medical orders for life-sustaining treatment form is a medical document, signed by the patient and a medical professional. This document is similar to a prescription and contains medical orders to withhold or provide various treatments, such as CPR, intubation, and sustained ventilation.

Many people are familiar with DNRs, or do-nor-resuscitate orders. The MOLST is similar but broader, and can include a DNR order. One can have both a DNR and a MOLST, but if a situation calls for resuscitation, the most recently signed form will take precedence. If the emergency requires consideration of other treatments, the MOLST will apply.

This document is often printed on bright pink paper and kept near the individual — on a bedside table or refrigerator, for example — and travels with her, as an alert to emergency responders to follow the medical orders outlined. The MOLST form is not recommended for everyone, but for individuals who have a serious illness or injury, it can offer important protections. Anyone can sign a MOLST; for those patients under age 18, a guardian’s signature is valid.

Healthcare Proxy

A healthcare proxy, by contrast, is a legal document signed by the individual, witnessed, and notarized. This document appoints a healthcare agent — someone the individual trusts to make medical decisions if (and only if) she is incapacitated and unable to make decisions herself.

Many hospitals have basic healthcare proxy forms available for individuals admitted for care. While they can be helpful in some short-term cases, these forms are usually not comprehensive. Very often there is space to name only one agent. In the event that the named agent is unwilling or unavailable to make decisions in a crisis, such forms do not provide a backup proxy.

Additionally, these basic healthcare proxy forms usually do not include guidance for the healthcare agent. While there is no living-will statute in Massachusetts, some attorneys integrate living-will language into the healthcare proxy. This allows the individual to express her wishes regarding end-of-life care.

Some decisions to be addressed may include a desire not to be kept alive artificially if there is no chance for recovery, to donate organs, or to be cremated. Even if the individual has had this conversation with her named agent, in a highly emotional medical crisis, written wishes serve as a powerful and comforting guide.

Healthcare proxies are a good idea for all individuals, healthy and ailing, but can be signed only by those over age 18. Without a healthcare proxy, family or friends may be forced to petition the court for guardianship in order to receive medical information and make medical decisions for a loved one.

How are the MOLST and healthcare proxy different, and are they both necessary?
 For those who are not suffering from a serious illness or injury, a healthcare proxy alone should be sufficient. A document naming a trusted agent and a backup (or two), with language expressing the individual’s end-of-life wishes, is valuable for all.

The healthcare proxy is a legal form, and while it provides the necessary appointment of an agent and expression of wishes, it carries little weight with emergency responders. In a life-threatening emergency, responders will not abide by a healthcare proxy, but will treat and transport the patient to the hospital. It is there in the hospital that the healthcare proxy can be invoked if the patient is incapacitated. In contrast, emergency responders will almost always abide by the directions in a MOLST, provided they are aware of the document when answering a call.

For those who have been seriously injured or diagnosed with a life-threatening condition, both a healthcare proxy and a MOLST are recommended.

Valerie Vignaux is an associate attorney with Bacon Wilson and a member of the firm’s Estate Planning and Elder Law team. She assists clients with all manner of estate planning. She also spent a year serving as Superior Court clerk to the justices of the Massachusetts Trial Court; (413) 781-0560; [email protected]

Law Sections

Adjustment Bureau

U.S. District Court Judge Mark Mastroianni

U.S. District Court Judge Mark Mastroianni

A federal judgeship is, by almost any measure, the proverbial opportunity of a lifetime for those in the legal profession — figuratively and quite literally; one has the job for life. So it is with Mark Mastroianni, although he admits that he became a candidate for the post in Springfield almost reluctantly because he was, at the time, “hitting his stride” as Hampden County district attorney. In fact, he admits feeling relieved in some ways when he missed the deadline for applying. But that deadline was extended, and, well, the rest is history — and a serious period of adjustment that is still ongoing.

Mark Mastroianni was talking about the start of the process that eventually led to him being named a federal judge in Springfield.

To describe it, he used the phrases “completely unexpected” and “perhaps even unwelcome.”

He said it was the former mostly because at that time, early 2014, he was more than halfway through his first four-year term as Hampden County district attorney and thinking about the next one, not a new career challenge.

As for the latter, he chose it because he wasn’t simply serving as DA. He was, as he put it, “just hitting my stride,” and in many ways he actually resented what the ensuing search process represented — an extremely difficult decision he would have to make about his career, or another difficult decision, to be more precise.

“I was three years in the district attorney’s office; I was getting my feet under me and really developing my sense of confidence,” he explained. “And it’s really at the point when you develop a sense of confidence doing anything that you become your most effective. I had things to do — I had things I knew I could do in the district attorney’s office that were important for me as professional accomplishments and for the people I was serving.

“I really took to that, and was serious about what I wanted to do,” he went on. “And when I say ‘unwelcome,’ I say that because that search came about right when I got moving.”

But there was more to this than the opening on the federal bench coming at what Mastroianni would consider the wrong time career-wise. Indeed, he possessed vast experience as both a prosecutor and defense lawyer at that time, and frankly couldn’t imagine himself spending at least the next 15 years (a federal judgeship is a lifetime appointment) being neither.

To get that point across, he put his passion for such work in perspective that only people who have been there could appreciate.

“There will be nothing like — at least, I haven’t experienced anything that looks like it will be the same as — the adrenaline rush in a capital murder case in the minute or two minutes when you’re waiting for the verdict,” he said while comparing his current job to his previous ones. “The jury comes in, the jury stands up, and the verdict form is handed to the clerk … I can’t explain to you what that’s like, really. Every trial I’ve taken, it’s been remarkable to me that I’ve been able to even stay on my feet; your heart is beating so fast, you just think that physically you’re not going to hold up.”

One doesn’t reach that state, emotionally or physically, as a judge, he went on, adding quickly, though, that adrenaline comes in many forms, and he experiences it now — granted, on a much lower level — when one of his rulings is cited by a lawyer when making an argument.

Adapting to this new standard for adrenaline rush is part of an adjustment period Mastroianni says is still ongoing, although overall, he says he’s quite comfortable in his new skin, or robe, as the case may be. He acknowledges that reaching this state wasn’t easy, but in most ways easier than he anticipated.

“I have been so happy and relieved at how I’ve adjusted, because I thought that I was going to really struggle with not being in the courtroom,” he said, referring, obviously, to the seats in front of the bench, not the one behind it. “I have really enjoyed and adjusted to still being part of the trial-litigation criminal process; I take a different seat now than the one I’m used to sitting in, and my decisions are from a different perspective, but I’ve adjusted, and continue to adjust.”

For this issue and its focus on law, BusinessWest looks at that adjustment period, and how it represents one of many career gambles Mastroianni has not only taken, but embraced.

Opening Statements

When asked about whether he had any regrets about taking the federal judgeship, Mastroianni answered in a way one might not expect from someone in such a lofty, respected, and sought-after position.

“Of course I have regrets,” he said, implying that some of his earlier comments would have made that clear. But he went further, and in a manner that once again suggested just how much he liked being DA — and a defense lawyer, for that matter.

“I’ve had regrets from every job I’ve left,” he explained. “If you don’t have regrets from the last job you’ve left, that means that didn’t love your job and didn’t do it with everything you had.”

Mastroianni has left a few positions in his career knowing that there would be not only regrets, but serious doubts from colleagues, friends, and relatives about whether he was doing the right thing, career-wise and otherwise.

There were such sentiments expressed when he left a position as assistant district attorney under William Bennett to go into private practice. He had started a family and purchased his first house, and while prosecutors were poorly paid at the time (and still are today), the job represented a safety net.

He heard them again when he launched a bid to succeed Bennett as DA running as an independent, a campaign for which for which the adjective ‘long shot’ would be considered a serious understatement.

And they were uttered again when Mastroianni became a candidate for the federal court, a position usually placed in that category of ‘opportunity of a lifetime.’

“Every friend and family member expressed the concern that it would be something I might not enjoy or become frustrated with,” he noted. “I had that same concern.”

Mastroianni said he made these various career moves after careful consideration of those expressed concerns, but also what the next challenge would mean for him personally and professionally.

“These were not reckless decisions,” he explained, using that phrase repeatedly with his latest change especially. And as he talked about them, he would reference a need to continually seek new challenges because “there was more for me to do.”

Our story begins at Cathedral High School in the early ’80s, where Mastroanni was mostly unmotivated and anything but a standout student and rising star. In fact, he would say that American International College “took a chance on me when they accepted me.”

"I’m adjusting, I very much like what I’m doing, and the forecast looks good.” – U.S. District Court Judge Mark Mastroianni

“I’m adjusting, I very much like what I’m doing, and the forecast looks good.” – U.S. District Court Judge Mark Mastroianni

He made the most of that opportunity, though, majoring in English and political science and contemplating careers as a writer or journalist while doing so. But he chose a different tack — one encouraged by his grandfather — and enrolled at Western New England University School of Law.

Upon graduation from WNEU in 1989, he found himself in a tough job market as a recession that would last the better part of half a decade settled in on the region. He borrowed money from some family members and opened a private practice in the same building in Springfield’s Court Square that his grandfather practiced from.

But the phone didn’t ring much, and he eventually sought to fill an opening on the staff of then-Hampden County District Attorney Matty Ryan. That assignment lasted only six months, as Ryan’s eventual successor, Bennett, did not keep him on after assuming office.

However, Bennett later rehired him, and he worked five years as an assistant DA, cutting his teeth on a number of high-profile cases, including several murder trials. Despite his success in that role, he sought another challenge — and potentially much larger paycheck — and returned to private practice.

He would remain there for 17 years, enjoying success on the other side of the legal system — defending clients — and on the all-important business side of the equation as well.

Eventually, he became as passionate about defense work as he was with his prosecutorial skills, and when pressed to compare and contrast the two, said that he found the former in some ways as rewarding professionally as the latter.

“What I like in both of them is high-level, high-profile, difficult cases,” he explained. “There’s an enormous sense of satisfaction that comes with successfully prosecuting a case and helping victims. But, quite frankly, I think that feeling is rivaled, and perhaps equaled, by the sense you get in the successful defense of a case and being the person who stands between one individual and the government, the prosecution, and the resources of that prosecution.

“With the murder cases I handled, there were primarily appointed cases — it’s one individual who’s been deemed to be indigent; we’ll appoint you a lawyer, and there you go, good luck with that,” he continued, explaining, in more detail, that sense of satisfaction he enjoyed from helping clients prevail in such matters. “You have a limited budget and limited resources, but there’s no limit to energy and effort you can put in.

“The satisfaction is not of ‘I want to help someone get away with something,’ or ‘I want to pull one over on someone,’” he went on. “The satisfaction is working within the system and making the system work; our system means nothing if there’s not vigorous defense work forcing the government, be it the Commonwealth or the federal government, to meet their burden of proof. Every good defense makes the next prosecution better.”

He said that, if he were ever put in a position of having to choose between the two, that would be a very difficult decision. So it’s fortunate, perhaps, that circumstances now mean he won’t have to make such a choice — at least until he turns 65.

No Objections

As he talked about his career and the many twists and turns it has taken, Mastroanni referred early and often to the notion of timing, and how certain events — from a recession to the retirement of a federal judge — have played a big role in shaping his many difficult decisions.

One such point in time was Bill Bennett’s decision to not seek another term as DA in 2010 after 20 years in that office.

Mastroanni admitted he was already thinking about pursuit of new and different challenges at the time, but Bennett’s decision in some ways forced his hand — again, amid concerns from collegaues and family members that he might be making a big mistake.

“The question from friends and family was, ‘why? What are you doing? …  you can’t walk away from this,’” he said, referring to the very successful private practice he had built. “At that point, it was something inside me professionally — a need to do more. It was this reflection, this self-examination of where I was, where I wanted to be, and what I wanted to be doing that led me to run.

“I wanted a challenge, I wanted a change, and I really felt I could do a good job as district attorney,” he went on. “I had very specific ideas about the criminal-justice system and how it could work better.”

But while he had the will to seek the post, he wasn’t exactly dealing from a position of strength, at least to most observers.

Indeed, while the DA’s position is non-political by nature, the processing of winning is quite political, and Mastroanni, upon entering the race, also decided he would wage his fight as an independent. That choice would impact everything from his participation in scheduled debates to raising money, but he stuck to his guns and eventually prevailed.

In the winter of 2011, he settled into the job — or at least the part he wanted to settle into.

He admitted that he had no real appetite for what could be called the operations side of the office — the budgetary matters and many aspects of managing 150 people and several offices. So he effectively delegated — something he says isn’t easy, and is an art form unto itself.

“That was like running full-speed into a brick wall when I encountered that administrative setup at the district attorney’s office,” he told BusinessWest. “You have a lot of employees, an IT team, a state police squadron assigned to you … so I delegated. I had to choose what to delegate, and I chose not to delegate the trial work; I thought I was certainly more qualified and competent as the trial lawyer who could take on the big case than I was as the person who would walk in and take care of the budget.”

Thus, he focused on trying cases (one of his first involved a successful prosecution in the murder of Cathedral High School student Conner Reynolds) and myriad other aspects of a very broad job description.

That list included everything from making progress with a large list of cold cases to going out into area classrooms and providing lessons on how the judicial system worked.

“We opened new units — we opened an unsolved-crime unit and a DNA unit, and we made really big advances in some cold cases that had not been worked on in some time,” he explained. “We solved several cases that were 20 years old and more. I developed a way to use drug-forfeiture money to essentially pay for the overtime so police officers could work on these cold cases.

“Springfield has so many unsolved cases, and one of the reasons they’re unsolved is because new cases keep flooding in every day,” he went on, adding that he developed a process by which trained individuals could devote the needed time, energy, and imagination to such cold cases. And many wound up being solved.

“That program was cranking,” he continued. “Meanwhile, our community outreach was just unprecedented; we were in the schools with all kinds of programs … it was wonderful, challenging, stressful times at the district attorney’s office. That’s a difficult job, and I was really enjoying all the progress we were making.”

It was at this point that the unexpected and “perhaps even unwelcome” search for a successor to the retiring Judge Michael Ponsor commenced in late 2013.

Decisions, Decisions

Then-recently elected U.S. Sen. Elizabeth Warren was placed in charge of the process of selecting a new federal judge, said Mastroanni, who said he had no intention of pursuing the post until he was encouraged to do so by members of the Gertner Committee, a panel appointed by Warren to solicit, interview, and comment on applications for federal District Court vacancies, and so-named because it was chaired by former District Court Judge Nancy Gertner.

Although he entertained those entreaties to become a candidate, Mastroianni admitted to feeling what amounted to a sense of relief that he missed a posted deadline of Jan. 31, 2013 for submitting a formal application.

“In my mind, how a lot of things work is that I’ll put things off as long as I can, and if I just put it off long enough, it will just take care of itself,” he explained. “I put that into practice with my judicial application. Before I knew it, the deadline had come and gone, and I didn’t get my application in, and I said to myself, ‘that’s too bad … I’ve been so busy as district attorney, I didn’t have a chance to fill this out. It’s just not right; I’m too busy as D.A. This is obviously where I should be.’”

As fate would have it, though, the deadline was extended, and Mastroianni would apply and eventually get the nod after many strenuous rounds of interviews.

When asked to analyze that result and how it came about, he would theorize that Warren was seeking diversity from the next federal judge, not only in the context that one might think, meaning racial or gender diversity.

“I think they thought my political affiliation — choosing to be an independent — as well as working at the highest level on both the prosecution side and the defense side gave me a rather unique perspective and view of the world and the legal system.”

With that perspective — and that résumé detailed above — Mastroianni entered his new role and adjustment period with that degree of trepidation he noted. But he has, in fact, found a comfort zone.

“I knew during my first couple of trials that the adjustment was going to be OK — I wasn’t feeling the need to look at the case that was developing in front of me as the trial lawyer,” he said, adding that he anticipated that being able to do so would be a sizable challenge. “I was not substituting myself for the lawyer in question; I was appreciating the art of trial work, and I do consider it an art.

“I found the challenge of presiding over that and watching how it develops to be so exciting, and so new,” he went on, adding that, while he’s observing and analyzing what the lawyers handling the case are doing, those opinions don’t manifest themselves in words or actions in the courtroom.

“I’m perfectly happy and content with thinking in my mind about what that lawyer does and saying to myself,  ‘how could you have done that? What you really needed to do was this,’ or watching a lawyer do something just perfectly and thinking, ‘that was well-done.’ For me to interrupt lawyers and try to make arguments for litigants and try to control how a case goes, that would be going overboard and not being well-suited to be in my position.”

The period of adjustment has other aspects to it, he said, noting, for example, that most of the cases that come to him are civil in nature, while most of his direct experience is with criminal matters.

Overall, though, while Mastroanni had some concerns about whether he could make an easy adjustment to a life of hearing arguments rather than presenting them, he was confident (there’s that word again) that he could do the job and do it well.

“I knew that I could rise and meet the challenges of this job knowing that I would have regrets,” he said. “But I’m adjusting, I very much like what I’m doing, and the forecast looks good.”

He’s even making the time to go into area classrooms and provide lessons on the legal system, as he did when he was DA, and will begin teaching a class in civil law at his alma mater this fall.

As for adrenaline, well, he still gets to experience those rushes, only in much different ways.

“I’m getting an enormous amount of satisfaction from seeing cases that I take develop, crafting the law as I see it applying to facts, and ultimately doing justice in terms of doing the right thing,” he said in conclusion. “That’s really what we do, and that sense of satisfaction from seeing a case come in, taking it from the beginning, working with it, and leaving here having made law, effecting law in a way that other cases that come after you are going to cite … that’s not the same kind of adrenaline rush I described while waiting for a jury to return a verdict, but that’s a satisfaction and type of rush that’s very, very rewarding.”

Closing Arguments

While Mastroianni maintains that he’s successfully adjusted to life on the bench, he nonetheless wishes he could somehow keep this job and experience all those emotions he mentioned when talking about that moment when the verdict is read by the jury foreman.

“I would absolutely love and welcome if there could somehow ever be a setup where I could try a case again,” he told BusinessWest. “That would be like the fantasy football league for me; that would be absolutely it.”

Such a setup isn’t possible, though, and Mastroianni understands that he’ll have to wait until he’s at least 65 to even think about being back on the other side of the bench.

For now, though, he’s focused on that new standard for adrenaline rush and finding new ways to experience it.

As he said, this is an adjustment period that is still ongoing.

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

Law Sections

Classified Information

By DAVID McBRIDE, Esq.

David McBride

David McBride

This July, two developments touching on the topic of independent contractors and the issue of potential worker misclassification have been in the news.

As background, it’s nearly impossible for Massachusetts employers to classify a worker as anything other than an employee: the state’s Independent Contractor Law is very narrow, and most workers will not meet the test for independent-contractor status.

Nonetheless, last month, the federal District Court for Massachusetts ruled that federal law preempts part of Massachusetts’ Independent Contractor Law as it applies to businesses that can be considered ‘motor carriers.’ Just one week later, the U.S. Department of Labor issued an administrator’s interpretation on how to determine whether workers should be classified as employees or independent contractors under the Fair Labor Standards Act.

For most Massachusetts employers, however, neither of these developments represents a significant change.

Part of State’s Independent-contractor Test Pre-empted by Federal Law

In 2013, the Massachusetts Delivery Assoc. (MDA), a trade organization representing businesses involved in same-day delivery services, filed a lawsuit in federal court claiming that Massachusetts’ independent-contractor test is preempted by the Federal Aviation Administration Act (FAAA).

In brief, the FAAA preempts state laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” The problem for MDA and its member businesses was that, based on the plain language of the state’s independent contractor law, they all would fail the test because the services provided by the drivers are directly within the members’ ordinary course of business, known as ‘prong B’ of the Independent Contractor Law’s ‘ABC’ test.

MDA argued that, to comply with the Independent Contractor Law, its members must change their national business model or risk penalties. National companies that utilize independent owner-operators to deliver products in the other 49 states are unable to do so in Massachusetts; no other state has made the use of this business model unlawful.

Complying with the Massachusetts statute, therefore, would drive up costs and adversely affect prices, routes, and services. Additionally, not only is the Independent Contractor Law expressly pre-empted by the FAAA, but it also imposes an impermissible burden on interstate commerce. The District Court agreed with the MDA that the FAAA pre-empts prong B of the ABC test because, if it were applied to any motor carriers, their drivers would have to be classified as employees rather than independent contractors. Motor carriers have a long history of using independent contractors to perform deliveries. Therefore, forcing MDA’s member businesses to classify the drivers as employees would necessarily affect prices, routes, or services.”

However, the court made it clear that its ruling is limited to only motor carriers and that the pre-emption is limited to prong B of the statute’s ABC test, not the entire test, and therefore it is still possible that the motor carriers could fail the other two prongs of the test and be required to treat drivers as employees.

Shedding Light on Federal Misclassification Analysis

On a national level, misclassification of employees as independent contractors has been on the radar screen for the U.S. Department of Labor for some time. The administrator’s interpretation issued by the DOL on July 15 is, at its essence, a guidance document explaining the factors and considerations taken into account by the DOL when analyzing cases involving independent-contractor misclassification cases.

In contrast with the Massachusetts statute, the DOL uses the ‘economic-reality test’ to decide whether a worker is an employee or an independent contractor. The guidance explains how all of its numerous factors are applied in each case, with none of the factors dominating over the others.

According to the DOL, the test is almost more of an economic-dependence test than an economic-reality test, in the sense that the central question that all the factors contribute to is whether the worker in question is “economically dependent on the employer or truly in business for him or herself.” This is not a shift in philosophy, just a clarification on the existing process. For Massachusetts employers, this guidance will be relevant in misclassification cases brought under the FLSA.

Significance for Massachusetts Employers?

Neither the MDA case nor the DOL guidance have an effect on the way that most Massachusetts employers should classify their workers. Massachusetts’ independent-contractor statute remains one of the toughest in the nation, and almost all workers in the state should be considered employers, not independent contractors.

The MDA case is of great significance to motor-carrier employers, but has little relevance to most employers. The DOL guidance relates only to the analysis under federal law and is not a change in their current process, but rather a further explanation of how the DOL is interpreting the law. Massachusetts employers are bound by state law when determining whether their workers should be classified as employees or independent contractors.

Because violations of the Independent Contractor Law can create huge liability, Massachusetts employers should consult with labor and employment counsel to ensure they are complying with both state and federal law in this complicated area.

 

David McBride is an associate with the labor and employment firm Skoler, Abbott & Presser, P.C., concentrating his practice on labor relations and employment law for management; (413) 737-4753.

Law Sections

They’re Just as Important as More Traditional Forms of Property

By ANGELA P. STAFFORD, Esq.

Angelina P. Stafford

Angelina P. Stafford

When taking inventory of property, most people focus on the tangible, material items they own, such as their house, car, clothing, jewelry, and photographs. Property, however, is not limited solely to these types of possessions.

As people have become more reliant on technology, more aspects of their personal lives are being shared online. For example, it is just as easy to post vacation photos to Facebook as it is to print copies, and to ‘tweet’ the latest personal updates rather than calling family and friends. Likewise, it is more convenient to finish Christmas shopping on Amazon, instead of braving the local mall during the busy holiday season.

All of this electronic information makes up a person’s ‘digital assets,’ and, just like material belongings, people accumulate various digital assets during their lives. Digital assets include, for example, blog posts; social-media accounts (like Facebook, Twitter, LinkedIn, and Tumblr); e-mail accounts; photos, videos, and communications shared or stored electronically; and financial accounts (such as PayPal and Amazon).

End of the Road

It is simple enough to share and store information electronically, but accessing these digital assets after incapacity or death becomes much more difficult. Although the personal representative of an estate is charged with collecting and administering a deceased person’s assets, at this time Massachusetts laws do not give the personal representative power to access a decedent’s online accounts. In fact, only a handful of states have enacted statutes authorizing fiduciaries to access a decedent’s electronic information and to terminate online accounts.

In many cases — in part because fiduciaries lack authority to access digital assets — the service-provider agreement (which the user agreed to when creating the account or sharing the information) controls who is authorized to access online accounts and, ultimately, what happens to them. For a variety of reasons, including privacy laws, some service-provider agreements are stringent and provide only for the termination of the account upon verification of the user’s death.

Yahoo!, for example, will remove a deceased user’s account after receiving verification of death, but explicitly refuses to provide access to the accounts. Because access to the user’s accounts are not allowed, it would be difficult to retrieve and save information, including photographs, video, letters, or other posts, which will eventually be deleted when the account is removed by the service provider.

On the other hand, some service providers have developed mechanisms that enable a deceased user’s family to keep the account active or to retrieve information from the user’s online accounts. In 2013, Google began to offer a solution called the ‘inactive account manager,’ which allows a user to elect what will happen to their data once the account has been inactive for a designated period of time, by either having all data deleted or sending it to a nominated individual.

Most recently, in February 2015, Facebook added a new feature that allows users to designate a ‘legacy contact’ who can manage the user’s account after they pass away. Once notified that the user has died, Facebook will memorialize the account, and the legacy contact will be able to post on the timeline, respond to new friend requests, and update the user’s profile photo. Like Google’s inactive account manager, Facebook users may even give the legacy contact permission to download an archive of the photos and posts they shared on Facebook.

The inability to access digital assets may result in a significant loss — particularly when these assets, had they existed in physical form, could have been collected by the fiduciary and easily distributed to family and friends. Unless someone is able to access these accounts directly, and until Massachusetts establishes a law that gives fiduciaries the power to access and manage digital assets, the disposition of digital assets is based primarily on the service-provider agreement.

Steps to Take Now

I suggest that you prepare a detailed inventory of your digital assets that includes website and online account information, user names and passwords, access information, and instructions specifying how the account should be handled after your death or incapacity. You should also review the terms and conditions applicable to each website with which you have an account or maintain digital assets.

Most importantly, contact an attorney who is aware of the nuances of digital assets and is able to advise you of your options to assist you with your estate-planning needs.

Angelina P. Stafford is an attorney with the Springfield-based firm Doherty Wallace, Pillsbury and Murphy, P.C., and her practice encompasses all areas of business law and taxation. She specializes in estate planning, estate administration, and probate litigation; (413) 584-1500.

Law Sections
Job Prospects Are Getting (Slightly) Better for Law-school Grads

Karen Adamski, a 2014 graduate of WNEU School of Law

Karen Adamski, a 2014 graduate of WNEU School of Law, in her office in downtown Easthampton.

Eric Gouvin was asked to qualify the state of the job market for recent law-school graduates, and especially those at Western New England University School of Law, which he serves as dean.

He thought about it for a moment, and then, when asked to find a word or two or three to sum things up, he paused again before saying, “well … it’s not terrible.”

He would go on to elaborate, using more numbers than words, to convey the general opinion that what seems like a simple question doesn’t have a simple answer. That’s because these are intriguing and certainly challenging times for those looking to enter the legal profession, and the scene is changing, in some ways quickly and profoundly, and in others slowly and — at least for some of those looking to land work — frustratingly.

What’s changing, said Gouvin, is the landscape in terms of the number and types of services for which lawyers are required. In short, there are fewer of them, with more matters handled by paralegals and those without a law degree.

What’s not changing, meanwhile, are both the overall appetite for bringing on new lawyers (many firms are still hesitant to do so even through the economy is certainly better than it was a few years ago) and the rate of retirement for the Baby Boomers who came into the profession when it was, well, booming 40-plus years ago.

In short, those legions of attorneys who entered the profession in the early and mid-’70s aren’t retiring — or at least at anything approaching the rates one might expect. There are many reasons for this, said Gouvin, including the Great Recession and its impact on everything from real-estate values to retirement savings, and the fact that many lawyers are more inclined to stay active and scale back their workload rather than fully retire.

Add all this up, and it translates into “not terrible,” which is, by and large, a slight enhancement over a few years ago, a vast improvement over 2010 and 2011 (the two worst years for finding work in this profession in quite some time), and roughly the same as last year.

“I’m cautiously optimistic that things are getting better,” said Gouvin. “But it will be pretty much like last year; as the economy improves, the prospects for law hiring improve.”

Gouvin and other law-school administrators won’t really know how the class of 2015 fares for several months — 10 months out from commencement is actually the benchmark used by those tracking placement and related issues — because many job offers are predicated on one’s passing the bar exam, and that grueling exercise won’t happen until July, and the results won’t be known until fall.

But Jeffrey Stitt Jr. won’t have to wait that long. He’s one of the members of this year’s class at WNEU who already has a job — in this case, with the firm of O’Connell & Aronowitz, which is based in Albany, N.Y. and also has offices in Saratoga and Plattsburg, N.Y., his hometown.

“It was always a hope of mine to begin my legal career here,” he said from home just two days after commencement ceremonies on the WNEU campus. “So I was very fortunate to have something work out.”

Jeffrey Stitt

Jeffrey Stitt, seen just after WNEU Law’s commencement exercise on May 17, is one of the fortunate graduates who already have a job with a firm.

Meanwhile, Karen Adamski, a member of WNEU’s class of 2014, is settling in nicely at her solo practice in downtown Easthampton. The name over the door, also printed in smaller type on her business card, is O’Brien & Adamski Law Office, a name she kept (she believes it’s a sound business decision, not a sentimental one) to recognize her father, Karl Adamski, and Edward O’Brien, who practiced together for many years.

Karen told BusinessWest she entered law school with the intention of joining her father (O’Brien passed away several years ago), and that plan was jelling nicely until the elder Adamski became ill not long after she passed the bar and died a few months later.

She carries on by herself, handling everything from real-estate closings to estate-planning work, and said business is solid.

“Things have gone very well, surprisingly well,” she said, giving much of the credit for that to what she called a “support system” of other lawyers in that area who have provided help and mentoring.

As the examples of Stitt and Adamski clearly show, there are still ample opportunities to join this profession and have a law degree fulfill a long-held dream. Still, circumstances are making it more difficult to script such an outcome, and for some, the dream is being delayed or altered due to the challenging conditions.

Firm Resolve

After graduating from Westfield State University in 1989, Adamski eventually went to work for Hasbro, in R&D, where, among other things, she helped write content and rules for a number of games and supervised those who contrived the questions for Trivial Pursuit.

This was fun work and rewarding in several ways, but by 2010, she had made up her mind to plot a significant course change career-wise, join the legal profession, and essentially fulfill a childhood ambition that had been put on ice for more than two decades.

“Growing up and being around my father, I always had an interest in the law,” she explained. “But life got in the way, and it kept getting pushed off. At the time, Hasbro was changing its structure, and I was reassessing what I wanted to do with the next phase of my life. I decided that, if I was ever going to this, this was the time to do it.”

The timing of her decision is significant because 2010 was when the bottom started falling out in terms of both the legal job market and the numbers of individuals who were opting to pursue a law degree.

Gouvin noted that, for the fall semester in 2010, Adamski was one of 52,488 first-year law students enrolled in schools across the country. By the fall of 2014, that number had declined to 37,924, a startling 28% contraction, as schools reacted to a sharp decline in applications by shrinking the size of the classes.

Meanwhile, the worsening conditions also made it more challenging for graduates to find jobs — or at least the kind of jobs they were hoping for when they entered law school, usually taking on large amounts of debt to do so.

“Between 2008 and 2011, big law firms were just shedding jobs left and right — I think the number was something like 60,000 law jobs were eliminated during that period,” Gouvin noted. “There were a lot of layoffs, and the market took a huge hit; that big class that enrolled in the fall of 2010 graduated into a market that was pretty moribund in terms of hiring.”

Adamski was well aware of these developments as she filled out the paperwork to pursue her juris doctor at WNEU on a part-time basis. But she decided this was a risk worth taking.

“I knew it was a difficult time,” she recalled. “Firms were cutting back, certainly, but those times also put a strain on the solo practitioner, which is what my father was. It’s a lot of work to keep an office up and running in a market that had an excess of attorneys in it and not as many jobs available; everyone’s in competition.

“The tough conditions were something I was aware of,” she went on, “but the desire to do it was enough for me to decide that I would take a chance, hope that the market would square up a little bit, and make a go of it.”

She was fairly confident that she would find a suitable opportunity working beside her father and eventually succeeding him. The second part of that equation happened much sooner than she expected, and she regrets that, but overall, she’s happy with her career change.

However, the sharp downward spiral in the legal job market has deterred many over the past several years, said Gouvin, noting that enrollment at WNEU, as at most other law schools across the country, is down significantly from the years just prior to the economic collapse of 2008, and there is no indication that they will start to swing back up any time soon.


Offering Testimony

That’s because of all those market forces he described earlier, a combination of change and stagnancy that has many thinking at least twice about pursuing a law career.

Stitt, however, was not in that category.

Like Adamski, he said he was well aware of how the landscape had changed in the legal profession during and after the Great Recession when he was mulling whether to go to law school and where.

But he was also not deterred by what he had heard and seen.

“I’ve always wanted to be a lawyer, and I wasn’t going to let the job market deter me,” he told BusinessWest. “Everything is pretty cyclical, and I think the job market is going to come back around over the next few years.”

Perhaps, but some things will have to go right for conditions to improve substantially, said Gouvin. One of them is the economy, which certainly appears to be heading in the right direction.

Eric Gouvin

Eric Gouvin expects the job market for law grads to improve as the economy strengthens and Baby Boom-generation lawyers eventually retire.

Another is the eventual exodus of the Baby Boom lawyers and even some who came before them. While their departure from the stage will certainly generate a loss of valuable talent and expertise — as the expected mass retirements over the next decade will in all sectors of the economy — it will generate opportunities for a new generation of law graduates.

“One of the things we keep waiting for is the retirement of Baby Boom lawyers — but they keep holding on,” Gouvin noted with a telling laugh, adding that this is a rather large constituency.

Indeed, in 1969, the total number of JDs graduating was 15,000, he said, citing statistics he’s repeated many times. In 1975, that number was 32,000, swollen by a large number of law schools that had recently attained accreditation, including WNEU, then known as Western New England College.

Meanwhile, the basic laws of supply and demand will generate improvement as well, said Gouvin.

“The good news moving forward is that, for the group that just entered in the fall, their job prospects should be good, assuming the economy continues to recover,” he explained. “The delta between the number of available jobs and the number of new lawyers seeking those jobs will be smaller, simply because there will be a lot fewer lawyers graduated.”

Stitt acknowledged that he is more fortunate than many of his classmates — not only finding a job but one in his hometown — but noted that there are certainly opportunities to be found for those who are diligent and make full use of the resources that WNEU makes available to its law-school students.

“Like anything, there has to be a lot of initiative on your part,” he explained. “And they [WNEU administrators] give us the tools, and they also bring a lot of law firms from the Hartford-Springfield area onto the campus as well.

“Going back to when I was a 1L [the first year of law school] … they always preach to use the school’s externship programs and clinic programs to really shorten that learning curve when you get out of school and into practice,” he went on, adding that these programs can also help make a candidate more attractive to potential employers.

Summary Judgment

As for Adamski, she said keeping the name O’Brien & Adamski Law Office has been one of many factors that have contributed to what she considers a solid start to her career in the law.

“I kept that name because it has equity — it’s been around since 1972,” she explained, adding that many of her father’s clients have stayed with the firm, and she has brought in a number of new ones, including friends, colleagues from previous jobs, and people she knew through law school.

Hers was a plan that didn’t go entirely according to script, but in many ways has unfolded as she envisioned — just on a different timetable.

Many recent and current law-school graduates may well wind up using similar language but in different contexts as they strive to put their degrees to work.

Such is life in this changing environment, one where ‘not terrible’ actually constitutes improvement.

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

Law Sections
As Effective Date Approaches, Many Questions Remain

By KARINA L. SCHRENGOHST, Esq. and OLGA SERAFIMOVA, Esq.

Many employers are struggling to roll out new policies and payroll practices that are compliant with the new Massachusetts Earned Sick Leave law by the July 1, 2015 effective date, which is fast approaching.

Karina Schrengohst

Karina Schrengohst

Olga Serafimova

Olga Serafimova

Last fall, Massachusetts voters passed a law mandating that employers provide up to 40 hours of sick leave per calendar year to their employees. Since then, employers have eagerly anticipated guidance from the Massachusetts Attorney General’s Office, which recently issued proposed regulations. Although the regulations clarify some aspects of this complex new law, ambiguities remain, and the regulations raise new questions and are subject to change after public comment. As public comment is open until June 10, the final regulations will not be issued until very close in time to the law’s effective date.

In light of this, as a compromise, Attorney General Maura Healey recently announced that employers who have a paid-time-off policy in existence as of May 1, 2015 that provides employees with at least 30 hours of paid time off during the calendar year 2015 will have until Jan. 1, 2016 to fully comply with the new law’s requirements.

In order to take advantage of this safe-harbor provision, employers must extend at least 30 hours of paid time off to all employees, and leave taken between July 1, 2015 and Dec. 31, 2015 must be job-protected and subject to the law’s non-retaliation and non-interference provisions. This means that, under the safe-harbor provision, employers would likely have to provide at least some part-time, temporary, and seasonal employees with more sick leave than they would otherwise accrue under the new law.

Consequently, practically speaking, this safe-harbor provision could potentially prove to be more costly for those employers with a significant portion of their workforce employed on a part-time, temporary, or seasonable basis.

In a nutshell, under the new sick-leave law, employers with 11 or more employees must provide paid sick leave, while employers with less than 11 employees must provide unpaid sick leave. The law broadly applies to full-time, part-time, temporary, and seasonal employees, without regard to exempt or non-exempt status, and interns.

The purposes for which employees may use sick leave are similarly broad. An employee may use sick time to care for his or her own physical or mental illness, injury, or medical condition, or to attend routine medical appointments. An employee may also take sick time to care for or attend medical appointments with his or her child, spouse, parent, or parent of a spouse. In addition, sick time may be used to address the psychological, physical, or legal effects of domestic violence committed against the employee or his or her dependent child.

When the need to take leave is foreseeable, employers may require up to seven days’ advance notice; for unforeseeable leave, employees must give notice as soon as practicable. Medical documentation supporting the need for sick leave may be required only after an employee has been absent for at least 24 consecutive work hours (for example, three eight-hour days).

The accrual rate of sick time under this new law is proving to be administratively challenging, baffling employers and payroll companies alike. Specifically, an employee accrues one hour of sick time for every 30 hours worked. For purposes of accrual, exempt employees are assumed to work 40 hours per week, unless their job specifies fewer. Although new employees begin to accrue sick time on their date of hire, they cannot use it until they have been employed for at least 90 days. Current employees begin to earn sick leave on the day the law goes into effect and are likewise not able to use it until they have been employed for 90 days. An employee may carry over up to 40 hours of accrued but unused sick leave from one year to the next. Unlike accrued vacation time, accrued sick time does not have to be paid to an employee upon separation.

Some of the provisions of the proposed regulations brought welcome news. For instance, during the transition year, employers are not required to provide more than 40 hours of paid sick leave, and any paid time off taken prior to July 1, 2015 will be credited. In addition, employers may substitute their vacation or other paid time off (PTO) policies if certain requirements are met. Also, as an administrative relief for some employers, for purposes of tracking sick-leave use and accrual, employers may select any consecutive 12-month period (i.e. calendar year, fiscal year, the year running from an employee’s anniversary date of employment).

Additionally, an employee may be required to verify in writing that he or she has used sick leave for an allowable purpose under the law after any absence. Further, where an employee’s absence from work requires his or her employer to hire a replacement, the employer may require the employee to use up to a full shift of earned sick time. In all other cases, sick-leave use must be tracked by no greater than one-hour increments.

Notably, under the proposed regulations, employees committing fraud or abusing sick leave or exhibiting a clear pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable may be disciplined. Because there are explicit prohibitions on retaliating against employees for taking sick leave, employers would be wise to consult with employment counsel before disciplining employees based on abuse of sick leave.

In the same vein, per the proposed regulations, attendance policies that reward employees for good attendance are permissible so long as employees who exercise their rights under this law are not subject to any adverse action. Further, employers may choose to offer a payout of up to 40 hours of unused sick leave at the end of the calendar year, as long as the employee is provided at least 16 hours of sick leave at the beginning of the new calendar year.   

In light of this new law, employers will need to revise their current vacation or paid-time-off policies or create a separate sick-time policy to ensure compliance with the law.

Karina L. Schrengohst, Esq. and Olga Serafimova, Esq. are attorneys at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified Women’s Business Enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]; [email protected]

Law Sections
Sending a Personal Message from the Deceased to Those Left Behind

By ANN I. WEBER, Esq.

Do you remember old movies where, after the death of an important person, there is a formal reading of the will? The family, trusted retainers, and ancient lawyer gather while the lawyer reads the will, which imparts not just a distribution of assets, but also advice and wisdom — and sometimes also spite and vitriol — from the recently deceased.

Ann Weber

Ann Weber

Of course, the latter two emotions are certainly not recommended in current estate-planning practice, but, upon the premise that we are all important persons with or without family retainers, ethical wills have been reintroduced as a way to send a personal message from the deceased to those left behind.

The concept of an ethical will is not new. It seems to have originated as an ancient Judeo-Christian tradition, which was carried on by rabbis and laypersons as a means of passing ethical values from one generation to the next. In current practice, ethical wills have been touted by websites, books, and how-to manuals as of means of leaving your loved ones a statement of your values and your hopes for their future.

An ethical will is not legally binding as is the memorandum that a testator can attach to his or her will. A legal memorandum sets forth the disposition of specified articles of personal property, i.e., “my jewelry to my daughter, my tools to my granddaughter, my old Ford Taurus to my son,” etc. When properly drafted and executed by the testator, a memorandum is legally binding and will be judicially enforced.

An ethical will, on the other hand, passes on the testator’s final wishes for the family, which can range from desired funeral arrangements to heartfelt lessons, insight and advice for the next generation, or even reminders of events which will bring a smile to the faces of those left behind. It is not a binding legal document, but an expression of memories, values, and hopes for the future.

It can provide an opportunity to say what has not been said in life — though all writers on the subject caution against saying anything negative or painful. Ethical wills can often serve as an offset to dry legal documents and may also balance the sometimes sterile and impersonal care that can attend dying in the modern age.

The most effective ethical will leave the survivors with a stronger sense of the departed loved one, what she wants them to understand about her life. An ethical will may also help the family cope with unresolved issues, explain the reasons behind certain dispositions, and help to avoid conflicts that can arise from the bare bones of the testamentary provisions in a will or trust.

Ethical wills need not be confined to a written document. For example, a father may include remembrances of his parents in saved pictures, letters, or a collection of favorite memories and stories handed down in the family. A businesswoman who wants to instill the values that allowed her to create a successful business and how she hopes her values and ethics will be carried on by the next generation may include stories of how she came to create the business, her successes, her failures, what she learned from them, and how she hopes these lessons will be carried on in the future.

Another person might create a video so that he can have a last conversation with his loved ones, tell a favorite joke or story, and share a last laugh with his family. Scrapbooks and online collections of important family memories may also be part of the ethical will.

If you would like to include such a document with your will, trust, or other testamentary documents, talk to your lawyer about how to go about this. There are a number of books and online guides to assist you, or your lawyer may have a format to help you get started. Many families have found comfort in the legacy of an ethical will that allows their loved one to stay with them in spirit after death, so if this is something appeals to you, start the process now and let it evolve as the years go by. Your family will thank you.

Attorney Ann I. Weber is a partner at Shatz, Schwartz and Fentin, P.C., and concentrates her practice in the areas of estate planning, estate administration, probate, and elder law. She is a fellow of the American College of Trust and Estate Council and past president of the Hampden County Estate Planning Council, and has been recognized by Super Lawyers (2004-2014), Top 50 Women Attorneys in Massachusetts (2007, 2012, 2013, 2014) and Best Lawyers in America (2004-2015); (413) 737-1131; [email protected]

Law Sections
Individuals Are Caught Between a State and a Federal Place

By Valerie Vignaux, Esq.

Imagine your aunt Sarah, 74 years old, three-year resident of an assisted-living facility in a small Massachusetts city.

Valerie Vignaux

Valerie Vignaux

She is thriving there, making friends, and actively participating in organized activities. She takes blood-pressure medication, and, because she doesn’t drive, you pick up her prescription and deliver it to the facility, where it is stored and dispensed by the staff. In her fourth year there, Sarah is diagnosed with breast cancer and opts to treat the disease aggressively with chemotherapy and radiation.

Once fairly robust, Sarah begins to suffer the effects of the chemotherapy. Her nausea diminishes her quality of life, and she loses weight. Her oncologist suggests exploring medical marijuana to alleviate the nausea and stimulate her appetite.

The legalization of medical marijuana took effect in Massachusetts in January of 2013. An Act for the Humanitarian Medical Use of Marijuana legalized marijuana for “the treatment of debilitating medical conditions, or the symptoms thereof.” Such conditions are defined by the statute as cancer, glaucoma, HIV-positive status, AIDS, hepatitis C, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, and, more vaguely, “other conditions as determined in writing by a qualifying patient’s physician.”

By these definitions, Sarah would seem to qualify for medical marijuana. After receiving certification of a debilitating condition from her doctor, Sarah could submit that certification to the Department of Health and receive a registration card. She would then use this card to obtain marijuana from a licensed dispensary.

If Sarah lived at home and drove, she could take her registration card to the nearest dispensary and store the marijuana at home. But what are the considerations now that Sarah lives at an assisted-living facility? Indeed, how will the growing population of elders at assisted-living and skilled-nursing facilities across the state take advantage of this legal treatment option?

It is important to remember that marijuana remains illegal under federal law. In recognition of increasing public support of and state action on legalization, the Obama administration has repeatedly asserted that federal prosecution of medical-marijuana distribution and use will remain a “low priority.” Additionally, Congress recently passed an amendment that prohibits the Justice Department from undermining state medical-marijuana laws — for 2015.

Despite this turning of the federal blind eye, will the owners and management of elder-care communities — both assisted-living and skilled-nursing facilities — take the risk of flouting federal law? If the facility admits patients receiving Medicaid, will it lose its federal funding? Will nursing staff be allowed to store and distribute this legal-yet-illegal substance? If Sarah can’t administer the drug herself, will a staff nurse or care attendant be authorized by the facility to help her? If Sarah opts to smoke the drug, will the facility allow it if there are restrictions on smoking? Will a family member be allowed to pick up her marijuana at the dispensary for her, as with her blood pressure medication from the pharmacy?

The Massachusetts statute allows for a “personal caregiver” to assist with a patient’s medical use of marijuana. Like the patient, caregivers may also receive a registration card to procure a patient’s marijuana. The statute states that “an employee of a hospice provider, nursing, or medical facility providing care to a qualifying patient may also serve as a personal caregiver.” Such caregivers, along with patients and healthcare professionals, are expressly protected under the law from state prosecution. In this scenario, both family and a staff member at Sarah’s facility could become personal caregivers under the law and assist Sarah with the procurement, storage, and administration of the drug.

Despite express protection from state prosecution, the Massachusetts statute also notes that “nothing in this law … purports to give immunity under federal law,” and “nothing in this law poses an obstacle to federal enforcement of federal law.” Presidential promises and the one-year hiatus from prosecution may be small comfort to administrators of elder-care facilities. The fear not only of prosecution, but also of loss of licensure and federal funding, are genuine concerns that may affect an elderly resident’s access to this particular treatment.

Attorney Valerie Vignaux is an associate attorney with Bacon Wilson and a member of the firm’s Estate Planning and Elder Law team. She assists clients with all manner of estate planning and provides representation for guardianship and conservatorship matters. She also spent a year serving as Superior Court Clerk to the justices of the Massachusetts Trial Court; (413) 781-0560; [email protected]

Law Sections
Steven Schwartz Looks Back at a Lifetime in Law

Steven Schwartz

Steven Schwartz

Steven Schwartz considers himself a lucky person, because he’s spent a career doing exactly what he always wanted.

“Some people, when they’re young, they have a dream of what kind of profession or job they would like to have when they grow up,” he told BusinessWest. If he had forgotten his childhood dreams, he was reminded when his parents were moving and uncovered a paper he had written in the sixth grade at Washington School in Springfield.

“It was a combination of autobiography and future dreams,” Schwartz recalled. “I wrote that I would like to go to Boston University Law School, which I did, and I would like to be a lawyer. When I saw this, I was very surprised because, even while going through law school, I had never expected to become a practicing lawyer, but to be a businessman.

“But,” he quickly added, “I’m so lucky that I decided to practice law, as I’ve had the most wonderful career, and had the pleasure to work with so many fabulous people in this firm, and other law firms, in pursuing my craft.”

Prior to launching the firm that bears his name — Shatz, Schwartz and Fentin, P.C. — he and Stephen Shatz were legal-services attorneys working with a neighborhood program. “We were staff members, but in 1969, we decided to set up our own firm. For about two years, we had another experienced lawyer who joined with us. In January 1971, we established our own firm without him.”

Later that decade, Gary Fentin came on board and would eventually find his name on the door as well.

“At the beginning, we were in general practice,” Schwartz said. “When you start a firm, you want to eat, and you are not too selective in the areas you are going to represent — provided that your lack of experience is not a detriment to the people who come to you with problems. Fortunately, we had many friends who were experienced lawyers who we could call on to hold our hand and give us the guidance we needed to ably represent our clients.”

Eventually, however, the firm garnered more business, to the point where the partners began developing the niche work they most enjoyed.

“Steve Shatz was interested in real-estate development and finance and banking law, and I pursued a career as a business lawyer and an estate planner,” he explained. “Fortunately, after about five years, we could focus on these areas and become specialists in our field. Over the years, we’ve added other practice areas in our firm based on later hires and the interest those lawyers had in particular fields.

“Some of the areas we were engaged in over the years have been eliminated because of changes in tax laws,” he added. “But we have been able to attract people to our firm who are interested in the areas we were interested in, and we’ve expanded those practices substantially. We now have a bankruptcy practice, a tax practice, and a regulatory practice in the area of zoning and land use.”

Today, 13 attorneys specialize in a broad range of business-law work for both for-profit and nonprofit entities, including estate planning and elder law; probate and guardianships; real-estate development, permitting, land use, and zoning; telecommunications siting and permitting; affordable-housing development and finance; corporate and business planning; contract preparation and negotiation; business exit planning; bond financing; bankruptcy; litigation; and licensing.

It’s a different legal world than it was 45 years ago, Schwartz said, and not always for the better. But he can look back at that long-ago school assignment with gratification, recognizing that not everyone actually gets to live out their sixth-grade dreams.

Start to Finish

Schwartz, who graduated from Babson College in 1963 and earned his law degree at BU in 1966, concentrates his practice in the areas of family business planning, mergers and acquisitions, corporate law, and estate planning — a range of specialties that involves representing principals in family business planning, including exit planning; representing individuals and corporations in the purchase and sale of business enterprises; strategic planning for the future of clients’ businesses; and providing advice on financing alternatives through loans and venture capital.

It’s a mouthful, but it basically boils down to helping other people reach their goals like he reached his, and there’s satisfaction in that.

“I’ve always been very interested in business, and many of my clients have included me in discussions related to the future of their business — whether to do an acquisition or not, or how to finance the business’s future,” he explained. “This has been extremely rewarding, as I’ve always taken pleasure in the success of my clients. I also learned that I’m better-positioned to be a lawyer than a manager, which takes many skills which I lack.”

Schwartz’s skill at helping business owners steer their ships has been recognized regularly on annual lists of Super Lawyers and Best Lawyers in America lists.

“It turns out, when you represent a family-owned or closely held business, a basic knowledge — and, really, more than a basic knowledge — of estate planning is necessary to represent their interests,” he explained. “Over the past few years, as many of my clients have dealt with the issue of what to do with their business when they get to retirement age, we’ve been very busy — transitioning into issues of transferring the interests of the family business to the next generation, or establishing employee stock-option plans for the business to be transferred to its employees.”

What economists call ‘Great Transfer’ — a handover of about $12 trillion from those born in the 1920s and 1930s to the Baby Boomers — has been going on for some time. But that figure is expected to be dwarfed by an anticipated $30 trillion in assets that the Boomers will transfer to their heirs over the next 30 to 40 years in the U.S. alone.

For that reason, attorneys who work in business planning are doing so at an intriguing, and busy, time in the country’s history. “Transitioning is a hot topic,” he noted, “mostly for people who own businesses.”

And with some of his clients dating back decades, Schwartz, in some ways, has had a hand in the region’s economic development over the years by helping businesses form, grow, and transition.

Love of the Game

As for Schwartz, he has no plans to transition into retirement, although communication — he’s watched landline phones and faxes give way to smartphones, texts, and e-mail — makes it easier these days to conduct business remotely. “That’s given me the opportunity to work from a different place and not retire, and still be effective at my craft.”

What makes him effective, he told BusinessWest, isn’t just knowledge and almost five decades of experience, but also a sincere love for his calling.

When he started practicing, he said, “I always felt that lawyers were interested in making a living, but their love of what they did was more important to them than the financial rewards. Today — as in many fields — the fact that there are so many lawyers means more financial pressures, and that makes the business end of the practice more important.”

Which leads to developments that confound the old-school side of Schwartz, even as his own firm has acquiesced to the times.

“I cannot remember any law firms back then having a marketing staff on board, or hiring outside agencies to service the law firm in that capacity,” he said. “I think a lot of it has to do with technology. In the early days, our new clients would come from referrals from bankers and insurance agents. Today, we get referrals for new clients from media advertising, public relations, public seminars, social media — and still some traditional referral sources.”

He even took a self-deprecating swipe at his own attire, which today involved a turtleneck and sport jacket. “That’s one substantial change,” he said. “I would never come to the office without a jacket or tie. That wouldn’t have been the case in the ’60s.”

Plenty has changed since then, of course, and many companies Schwartz helped off the ground in those early days have closed or transitioned to new owners — or, in many cases, are still growing, still contributing to business life in the Pioneer Valley.

“A lot of my clients are older,” he said, “and at some point, I’ll be dealing with their estates, which is necessary but very sad for me. I have clients in their 90s still working.”

Joseph Bednar can be reached at [email protected]