News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Archives

We are pleased to announce that seven of our attorneys have been selected to the 2020 Massachusetts Super Lawyers list. We would also like to congratulate four of our attorneys for being selected to the 2020 Massachusetts Rising Stars list.

Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5 percent of the lawyers in a state are named to the Super Lawyers list, and no more than 2.5 percent are named to the Rising Stars list.

Please join us in congratulating the following attorneys who have been selected as “Super Lawyers” and “Rising Stars” this year.

Zalkind Duncan & Bernstein LLP is proud to announce that Attorneys Inga Bernstein, David Duncan, Elizabeth Lunt, Ruth O’Meara-Costello, Emma Quinn-Judge, Monica Shah, Rachel Stroup, and Norman Zalkind are listed in the 2021 edition of The Best Lawyers in America. Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Congratulations to all!

Attorneys Ruth O’Meara-Costello and David Russcol spoke to Massachusetts Lawyers Weekly about last week’s decision in Helfman v. Northeastern University, et al. The Court held that colleges have a duty to protect their students from alcohol-related harm under certain circumstances. Attorneys O’Meara-Costello and Russcol discussed the implications of this decision for colleges going forward. Click here to read more.

US-DOE-sealCross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.

Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses  have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.

CONTINUE READING ›

US-DOE-sealYesterday, the Department of Education released final new Title IX regulations. Our office is addressing the regulations, which mandate significant changes to the way that most colleges and universities have been handling accusations of sexual assault and harassment, in a series of blog posts. This post addresses just one important issue as to which the regulations clarify schools’ options: the standard of proof that they can use to adjudicate complaints falling under Title IX.

While overall the regulations prescribe how allegations must be resolved with a fair amount of specificity, one area in which they have given the schools increased discretion compared to prior guidance is the standard of proof for resolving allegations. In a 2011 “Dear Colleague” letter, issued in a different presidential administration, the Department’s Office for Civil Rights (“OCR”) required schools to use the “preponderance of the evidence” standard to determine whether or not a respondent was responsible for sexual harassment or assault. A preponderance of evidence means, essentially, that the evidence establishes that something is more likely than not to have occurred.

CONTINUE READING ›

John_Adams_Courthouse_-_Suffolk_County_Courthouse_-_Boston_MA_-_DSC04718-1This week the Supreme Judicial Court (“SJC”) decided Commonwealth v. Newberry, in which it held that judges must arraign defendants prior to assigning them to pretrial diversion if the Commonwealth seeks arraignment. In my opinion the decision is wrong on the law, and eliminates an essential avenue for some defendants to avoid the negative consequences of a criminal charge on their records.

Under the law in question, the court may “at arraignment” delay the case for two weeks for assessment of the defendant’s suitability for diversion to a treatment or other program in lieu of prosecution. (The “program” in question can include community service, so diversion is a possibility even for those not in need of, for example, mental health or substance abuse treatment.) At the two-week return date, the court may, if it determines that the defendant is eligible for diversion, continue the case for 90 days to allow the defendant to complete the program, and then dismiss it following that period. The question in this case was whether the defendant must be arraigned before the case is diverted, if the Commonwealth so requests. Before the decision certainly many judges believed that they had authority to divert cases pre-arraignment even if the prosecution objected, and our office secured this disposition for a number of defendants. For example, in January 2019 I convinced a judge to grant a client pre-arraignment diversion on condition that he complete an anger management course and community service, over the objection of the Commonwealth.

This case will change the availability of that option. The SJC read the language in the statute stating that these events must take place “at arraignment” to mean that they cannot happen pre-arraignment if the prosecution objects. To my mind this reading is not at all mandated by the plain language of the statute. I would read the language “at arraignment” to indicate only that the determination should be made at the defendant’s first appearance before the court, i.e. their scheduled arraignment. The statute does not use language such as “after arraignment,” which would clearly indicate that defendants must actually be arraigned before diversion, or directly address whether diversion can take place prior to arraignment. And it nowhere gives the prosecution authority to stand in the way of diversion if the court finds it to be warranted, so it is bizarre that the court’s statutory reading gives prosecutors the discretion whether or not to demand arraignment in a particular case.

squad-car-1209719_960_720When police conduct traffic stops, a wide array of legal principles come into play in seemingly simple interactions, including Fourth Amendment search and seizure law, the Fifth Amendment right to remain silent and refuse to incriminate yourself, laws governing civil traffic infractions, and the criminal law. (While what you should do if stopped obviously varies depending on the situation, the ACLU provides some useful general principles for how to conduct yourself if the police pull you over.) Among all of the various complex legalities of a traffic stop, however, one requirement in Massachusetts is fairly simple, though little-known: under the Massachusetts “no fix” statute, for nearly all motor vehicle offenses, police must give the violator a citation at the time and place of the violation. If they fail to do so without justification, the violator has a defense “in any court proceeding for violation,” meaning that even criminal charges against the violator must be dismissed.

CONTINUE READING ›

We are pleased to announce that five of our attorneys have been selected to the 2018 Massachusetts Super Lawyers List. We would also like to congratulate six of our attorneys for being selected to the 2018 Massachusetts Rising Stars list.

Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5 percent of the lawyers in a state are named to the Super Lawyers list, and no more than 2.5 percent are named to the Rising Stars list.

Please join us in congratulating the following attorneys who have been selected as “Super Lawyers” and “Rising Stars” this year.

college-building-2-1In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan  making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.

CONTINUE READING ›

AllegationBrown-Doe-images of sexual assault on campus involving students of different colleges are very common. My experience representing students involved in such proceedings has typically been that if a college is presented with an allegation that one of its students has sexually assaulted, harassed, or abused another person, the college will investigate that allegation, regardless of whether the complainant is a student at that college, an alumnus of the college, or an individual with no connection to the institution. (This can vary depending on the terms of the college’s Title IX policy, but most policies at least allow for such investigation.) The college’s ability to provide complainants who are not its students with some types of help may be limited—it probably cannot meaningfully offer academic accommodations, for example—but it can and (again, in my experience) usually does proceed to investigate the allegations and mete out any discipline that it concludes is warranted. A ruling by the First Circuit Court of Appeals in one recent lawsuit suggests that there are limits on colleges’ obligations to complainants in such situations, but in my view it is unlikely to result in dramatic changes in most colleges’ practices.

CONTINUE READING ›

Super Lawyers
Martindale-Hubbell
Best Lawyers
Best Law Firms