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B4 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 276 Continued from page B3 practice law in Massachusetts does not render the award void and (2) the arbitration panel acted permissibly by ordering the plaintiff to pay monetary sanctions for a discovery violation. Superadio Limited Partnership v.Winstar Radio Productions, LLC (Lawyers Weekly No. 10- 052-06) (20 pages) (Greaney, J.) (Spina, J., with whom Cowin, J., joins, concurring in part and dissenting in part) (SJC) Case heard by Fecteau, J., in Superior Court. John O. Mirick and Jessica H. Munyon for the plaintiff; John D. Geelan and Michelle M. Hansen for the defendant; the following submitted briefs for amici curiae: Timothy P. Burke, Matthew C. Applebaum, Katherine W. Grearson, Richard A. Johnston, Mark C. Fleming and James S. Goldman for Boston Bar Association; Timothy P. Burke and Matthew C. Applebaum for Securities Industry Association; Andrew R. Grainger, Martin J. Newhouse and Ben Robbins for New England Legal Foundation (Docket No. SJC-09542) (March 28, 2006). Attorneys Disbarment - Client’s uncorroborated claim Where an attorney has been disbarred, the disbarment order must be upheld based on evidence of misconduct. In the Matter of: Dasent, Carlton J. (Lawyers Weekly No. 10-071-06) (4 pages) (Rescript) (SJC) Appealed from a decision by Cowin,J.,sitting as single justice. James S. Dilday for the respondent; Daniel C. Crane, Bar Counsel, and Dorothy Anderson, Assistant Bar Counsel (Docket No. SJC-09515) (April 21, 2006). Disbarment - Overbilling - Issue preclusion Where a client obtained over $800,000 in damages in a federal court action against an attorney, the attorney should be disbarred based on his misconduct. In the Matter of:Goldstone,Daniel W.(Lawyers Weekly No.10-192-05) (24 pages) (Cordy,J.) (SJC) Case reported by Spina, J., sitting as single justice. David G. Hanrahan for the respondent; Dorothy Anderson,Assistant Bar Counsel (Docket No.SJC- 09453) (Dec. 16, 2005). Discipline - Corporate funds Where the Board of Bar Overseers has recommended that an attorney be suspended for two years,the recommendation should be adopted based on evidence that the attorney temporarily transferred to his own use $130,000 in assets of a corporation for which he was serving as chief executive officer and sole director. In the Matter of Barrett,Donal B.(Lawyers Weekly No. 10-136-06) (22 pages) (Spina, J.) (SJC) Case heard by Greaney, J., sitting as single justic. Donal B. Barrett, pro se; Robert I. Warner, Assistant Bar Counsel (Docket No. SJC-09508) (Aug. 16, 2006). Discipline - Criticism of judge Where an attorney has appealed a single justice’s order disbarring him,the appeal must fail because the single justice committed no error of law or abuse of discretion. In reaching this conclusion,we hold that the attorney lacked an objectively reasonable basis for his public statements critical of a judge. In the Matter of: Cobb, Matthew (Lawyers Weekly No. 10-182-05) (44 pages) (Spina, J.) (SJC) Case heard by Greaney, J., sitting as single justice.Case submitted on briefs; Matthew Cobb, pro se; Daniel C. Crane, Bar Counsel, and Jane R.Rabe,Assistant Bar Counsel (Docket No.SJC- 09333) (Dec. 8, 2005). Discipline - Practice of law during suspension Where an attorney,adjudicated in contempt of an order suspending him from the practice of law, was given an additional period of suspension, that decision was proper in light of the justice’s conclusion that the attorney rendered legal services to two clients after the effective date of his suspension. In the Matter of: Shaughnessy, William H. (Lawyers Weekly No. 10-070-06) (2 pages) (Rescript) (SJC) Appealed from a decision by Sosman, J.,sitting as single justice.William H.Shaughnessy, pro se; Susan A. Strauss Weisberg, Assistant Bar Counsel (Docket No.SJC-09560) (April 21,2006). Fees - Prevailing party - Governmental opponent Where a plaintiff sought counsel fees in connection with a suit brought under federal law against the defendant Massachusetts Department of Mental Retardation,an order denying that request must be affirmed based on U.S. Supreme Court precedent. Newell v. Department of Mental Retardation (Lawyers Weekly No.10-046-06) (34 pages) (Marshall, C.J.) (SJC) Case tried before Fahey, J.; motion for attorney’s fees heard by her and complaint for contempt also heard by her. Daniel S. Sharp and Elaine Whitfield Sharp for the plaintiff;Ronald F.Kehoe and Jacquelyn Berman for the defendant (Docket No. SJC-09439) (March 20, 2006). Fee-sharing agreement - Referral - Client’s written consent Where a judge ordered the defendant attorneys to pay the plaintiff attorney one-third of the fees earned in representing a client referred to the defendants by the plaintiff,this order was proper in light of an oral fee-sharing agreement between the parties. “We also decide that hereafter, in order to satisfy professional ethical requirements, lawyers who participate in a fee-sharing agreement must obtain the client’s consent in writing before the referral is made.” Saggese v.Kelley,et al.(Lawyers Weekly No.10- 180-05) (17 pages) (Spina,J.) (SJC) Case heard by Sanders,J.;motion to alter or amend the judgment also heard by her. H. Reed Witherby for the defendants;Robert D.Cohan for the plaintiff (Docket No. SJC-09484) (Nov. 30, 2005). Misconduct - Discipline Where (1) the hearing committee of the Board of Bar Overseers found that a respondent attorney had engaged in conduct characterized as involving “clear,personal conflicts of interest with elderly, unsophisticated and vulnerable clients” and (2) a divided Board then recommended that the respondent be suspended from the practice of law for two years,we conclude that a more severe sanction is warranted and therefore will order that the respondent be indefinitely suspended from the practice of law. In the Matter of: Lupo, Robert N. (Lawyers Weekly No. 10-127-06) (25 pages) (Marshall, C.J.) (SJC) Case reported by Greaney, J., sitting as single justice. John W. Marshall, Asst. Bar Counsel; Edward Foye, Heidi A. Nadel and Brian J. Kelly for the respondent (Docket No. SJC- 09686) (July 28, 2006). Civil practice Assignment - Contractual indemnification Where a general contractor assigned its contractual indemnification and breach of contract claims against its subcontractor to an employee of the subcontractor who was injured on the job, we hold that the assignment was valid. Spellman, et al. v. Shawmut Woodworking & Supply,Inc.(Lawyers Weekly No.10-001-06) (14 pages) (Greaney, J.) (SJC) Motion to amend and dismiss third-party complaint heard by Fahey,J., and questions law reported by her to the Appeals Court; SJC transferred the case on its own initiative. Andrew S. Wainwright for the plaintiffs; Mark B. Lavoie for the defendant; John B. Glynn and William T. Harrington for third-party defendant East Coast Fireproofing, Inc.; Myles W. McDonough submitted a brief for Associated Subcontractors of Massachusetts,Inc.,amicus curiae (Docket No. SJC-09503) (Jan. 3, 2006). Discovery - Sexual abuse charges - Videotaped interviews Where two plaintiff minors, having filed a civil suit over alleged sexual abuse they suffered at school,requested copies of their videotaped interviews conducted during the course of a now-concluded criminal investigation into their abuse allegations, an order allowing the discovery request should be affirmed, as the district attorney for the northwestern district has failed to show that the videotaped evidence is exempt from disclosure under G.L.c. 4, §7. In the Matter of a Subpoena Duces Tecum (Lawyers Weekly No.10-002-06) (10 pages) (Ireland,J.) (SJC) Case reported by Cowin,J.,sitting as single justice.Judith Ellen Pietras for the commonwealth; Joan A. Antonino, for John Doe & others,submitted a brief (Docket No.SJC-09324) (Jan. 5, 2006). Interpreter - Immigrant Where (1) a jury found for the defendant in a personal injury case concerning machinery and (2) the plaintiff now claims that she should have been granted an interpreter,that argument must be rejected on the ground that the plaintiff does not qualify as a non-English speaker. Crivello, et al. v. All-Pak Machinery Systems, Inc., et al. (Lawyers Weekly No. 10-086-06) (16 pages) (Ireland, J.) (SJC) Case tried before Whitehead, J.; motion for a new trial heard by him. Paul L. Kenny and Richard C. Chambers Jr. for the plaintiff; Myles W. McDonough for Pacemaker Packaging Corp.; Nicholas Grimaldi for All-Pak Machinery Systems, Inc. (Docket No. SJC-09525) (May 16, 2006). Petition for writ of certiorari Where a single justice has denied a petitioner’s “Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court,” we hold that the single justice acted permissibly, as part of the petition should have been pursued by means of a direct appeal and the relief sought by the remainder of the petition was not supported by the record. Feinman v.New Bedford Division of the District Court Department, et al. (Lawyers Weekly No. 10- 085-06) (2 pages) (Rescript) (SJC) Petition heard by Cowin,J.,sitting as single justice.Alex Feinman, pro se (Docket No. SJC-09238) (May 15, 2006). Probate rules - Exhaustion Where a will proponent desires to move for summary judgment under Rule 27B of the Rules of the Probate Court, he or she may do so without first having exhausted the procedures set forth in Rule 16. O’Rourke v. Hunter (Lawyers Weekly No. 10- 094-06) (23 pages) (Marshall, C.J.) (SJC) Case heard by Roach, J., on a motion for summary judgment. Barry A. Bachrach for the plaintiff; Michael J. Traft for the defendant (Docket No. SJC-09637) (May 31, 2006). SDP - Deadline Where the commonwealth’s petition for the civil commitment of the defendant as a sexually dangerous person was dismissed, the dismissal order should be affirmed on the ground that the petition did not comply with the 60- day deadline of G.L.c. 123A, §13(a). Commonwealth v.Parra (Lawyers Weekly No. 10-163-05) (8 pages) (Ireland,J.) (SJC) Following an order of temporary commitment issued by Kottmyer, J., a motion to dismiss the petition was heard by Fahey, J., and a motion for reconsidera-
Cite this page 35 MLW 277 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B5 tion was also heard by her. A.J. Camelio for the commonwealth; David Hirsch for the defendant (Docket No. SJC-09552) (Nov. 2, 2005). SDP commitment statute Where a trial court judge has reported the correctness of her ruling and has asked “Does the Supreme Judicial Court’s holding in Commonwealth v. Knowlton, 379 Mass. 479 (1979), prescribing substantive procedures and protections for incompetent respondents in [‘sexually dangerous person’] proceedings under the now repealed §6 of c. 123A, apply to a proceeding under §12 of c.123A?,”we respond in the negative. Commonwealth v. Nieves (Lawyers Weekly No. 10-074-06) (22 pages) (Cowin, J.) (SJC) Questions of law reported by Fahey,J.; Supreme Judicial Court, on its own initiative, transferred case from Appeals Court.Lillian Cheng and Kate Berrigan MacDougall for the commonwealth; Mark J.Gillis for the defendant (Docket No.SJC- 09615) (April 27, 2006). PROFILES OF THE JUSTICES CHIEF JUSTICE MAR- GARET H. MARSHALL Appointed to SJC: 1996 (elevated to chief, 1999) Will reach retirement age: 2014 Majority opinions written this year: 23 Dissenting opinions written this year: 1 Total dissenting votes cast: 5 Notable decision: Gasior v. Massachusetts General Hospital (Lawyers Weekly No. 10-080-06), which determined that an employee’s discrimination complaint alleging wrongful termination under G.L.c. 151B survived the death of the employee. chusetts Constitution by providing, prospectively, that “the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman,” the plaintiff’s challenge must be rejected on the ground that the proposal is not seeking reversal of a judicial decision. Schulman v. Attorney General, et al. (Lawyers Weekly No.10-118-06) (17 pages) (Cordy,J.) (Greaney, J. with whom Ireland, J., joins, concurring) (SJC) Case reported by Spina, J., sitting as single justice.Gary D.Buseck,Jennifer L.Levi and Mary L.Bonauto for the plaintiff;Peter Sacks for the defendants; Jordan W. Lorence, Dale Schowengerdt and David R.Langdon for the interveners;the following submitted briefs for amici curiae: Martin M. Fantozzi and Kevin P. O’Flaherty for MassEquality and others; Luke Stanton for Robert H. Quinn and others;Robert D.Carroll,Christopher C. Nee, & Anna-Marie L. Tabor for Scott Harshbarger and others;C.Francis Tynan,pro se (Docket No. SJC-09684) (July 10, 2006). Civil rights Privacy - Workplace - Videotaping Where a plaintiff employee of a state college alleges that her right to privacy was violated by videotape surveillance of her workplace in 1995, she is not entitled to relief under statutory or constitutional law, as the plaintiff had no objectively reasonable expectation of privacy and the defendants are entitled to common-law immunity. Nelson v. Salem State College, et al. (Lawyers Weekly No. 10-064-06) (21 pages) (Ireland, J.) (SJC) Case heard by Kottmyer,J.,on a motion for summary judgment. Jeffrey M. Feuer and Lee D. Goldstein for the plaintiff; David R.Kerrigan and Meredith A. Wilson for the defendants; the following submitted briefs for amici curiae: Wayne Soini and Jaime DiPaola for American Federation of State, County & Municipal Employees, Council 93,AFL-CIO; Mark P.Fancher for Maurice and Jane Sugar Law Center for Economic and Social Justice; Marc Rotenberg and Marcia Hofmann for Electronic Privacy Information Center; Jeremy Gruber for National Workrights Institute (Docket No. SJC-09519) (April 13, 2006). Constitutional Double jeopardy - Mistrial Where a defendant moved for dismissal of criminal charges following a mistrial,that motion was properly denied on the ground that the defendant consented to the declaration of mistrial. Pellegrine v.Commonwealth (Lawyers Weekly No. 10-048-06) (3 pages) (Rescript) (SJC) Petition heard by Cordy, J., sitting as single justice. Lois J.Martin for the plaintiff; Jason Mohan and Tracey A.Cusick for the commonwealth (Docket No. SJC-09383) (March 24, 2006). Same-sex marriage - Initiative petition Where a plaintiff challenges the Massachusetts Attorney General’s certification of an initiative petition that would amend the Massa- Search and seizure - Buccal swab Where (1) the defendant,a married woman, was indicted for the alleged rapes of two teenaged boys, (2) the commonwealth asserted that the sexual intercourse involved resulted in the birth of a child by each complainant, (3) the commonwealth filed motions in each case to compel buccal swabs from the defendant, the child and the complainant for the purpose of DNA testing to determine whether, in each case, the complainant is the father of the child and (4) a Superior Court judge denied the motions,we hold that the motion denials must be vacated and a remand ordered. Commonwealth v. Draheim (Lawyers Weekly No. 10-113-06) (11 pages) (Cowin, J.) (SJC) Continued on page B6
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