Zalkind Duncan & Bernstein LLP is proud to announce that firm partners Norman Zalkind, David Duncan, Inga Bernstein, Emma Quinn-Judge, and Monica Shah, and of-counsel attorneys Elizabeth Lunt and Harvey Silverglate are listed in the 2019 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!
In news that might seem unsurprising to both lawyers and non-lawyers alike, on December 28 a judge in the Superior Court held that Endicott College was not liable for a student who got extremely drunk at a dorm party, and then assaulted three fellow students, leaving two with broken facial bones. After serving part of his four-year sentence for the assault and being paroled, the student brought suit against the college alleging that the college’s negligence caused his actions. The student argued that the college was liable in negligence for his actions under three theories: (1) social host liability (which applies to those who negligently serve alcohol to someone who later injures someone as a result of being intoxicated); (2) that the college had a “special relationship” with the student that imposed a duty of care to protect the student; and (3) that the school was negligent in supervising the student and preventing him from harming himself. The judge, assessing whether the college owed some duty of care to the student, determined that “No Massachusetts case . . . has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol.”
In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from harassment based on sex stereotyping.
Title IX prohibits educational programs that receive federal funding from discriminating on the basis of sex. Because discrimination by definition means treating one person differently from another, there are only a few limited areas in which schools can draw explicitly gender-based distinctions and not run afoul of Title IX.
One area where schools have historically had explicitly gendered policies is in their dress codes. When Title IX was initially enacted, the implementing regulations prohibited sex distinctions in “rules of appearance.” This regulation seemed to squarely prohibit the implementation of gender-specific dress and grooming codes. However, the Reagan administration revoked those regulations in 1982, fewer than ten years after they had been issued, indicating that differentiating on the basis of sex in “rules of appearance” might very well be permissible under Title IX.
Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.
In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor. The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not. Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution. He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution. Continue reading
We are proud to announce that partner Emma Quinn-Judge is being honored as one of the 2017 Top Women of the Law by Massachusetts Lawyers Weekly. The annual award recognizes women lawyers for outstanding accomplishments in the legal community who have distinguished themselves as leaders.
Emma has a litigation practice focused on criminal defense, employment, and appeals. In her criminal defense practice, Emma has represents individuals charged with crimes ranging from disorderly conduct to murder and serious federal charges. Recently, Emma was co-counsel in a case where the jury found the client not guilty on two charges arising from a traffic stop in which police used excessive force in a local Massachusetts city. Emma has on numerous occasions helped clients get their charges dismissed altogether or substantially reduced. She is also a strong advocate on sentencing and has helped clients in federal court receive below Guideline sentences.
In her employment practice, Emma represents employees in state and federal court, in administrative proceedings, and on appeal. She has won substantial victories, both in court and in out-of-court settlements. Most recently, she represented the plaintiff in Charles v. City of Boston, and won a nearly $10.9 million jury verdict (now on appeal) for her client, a long-time City of Boston employee who experienced race discrimination and retaliation. She also provides advice and counseling to employees on a wide range of employment issues, including compensation, discrimination, harassment, and workplace disputes.
About a year and a half ago we mentioned the Owen Labrie case in New Hampshire, where an 18-year-old senior at the St. Paul School was charged with a variety of crimes, including forcible sexual assault, of a 15-year-old at the school. To briefly review the case: Labrie was alleged to have been participating in a longstanding tradition, “senior salute,” where male seniors competed to see who could get sexual favors from the most underclassmen. The victim in the case alleged that Labrie had invited her out as part of the senior salute, then raped her in an attic in the school.In August 2015 a jury acquitted Labrie of the felony forcible sexual assault charge, but found him guilty of three misdemeanor counts of statutory rape, and the felony of using a computer to lure a minor for sex. The latter conviction requires Labrie to register for life as a sex offender.
Throughout the trial, there was criticism from some in the legal community about both the charges brought, and the way the case was being handled by Labrie’s lawyers. As news reports noted, Labrie fired at least three lawyers before settling on famous Boston criminal defense lawyer J.W. Carney and Worcester lawyer Samir Zaganjori, and rejected a number of plea deals that would have prevented him from having to register as a sex offender for the rest of his life. One article reported that a law-enforcement official involved in the case said that if Labrie had acknowledged wrongdoing and expressed regret he would have likely been sent into a sex-offender program without being convicted of any of the crimes with which he was charged. Former federal judge and Harvard Law School professor Nancy Gertner told a reporter, “This was a fundamentally ‘untriable’ case,” and indicated surprise that the defense had taken the case to trial. Continue reading
Massachusetts now has two types of restraining orders—abuse prevention orders under M.G.L. c. 209A, which are intended specifically to address and prevent domestic violence and are only available between family or household members (including people who have been in a substantial dating relationship), and harassment prevention orders under M.G.L. c. 258E, which can be issued absent any such connection where the standards for such orders are met. The basic procedure for either order is the same—a court can issue the order ex parte, without the knowledge or participation of the defendant against whom the order is sought. The defendant is then served with the order, and has the right to appear at a contested hearing, no more than 10 days later, regarding whether the order should be extended. The entry of any such order—even if it is not extended at the 10-day hearing—creates a permanent record maintained by the Commission of Probation. The courts have refused to expunge such records except where an order was issued due to “fraud on the court.” In a new decision, M.C.D. vs. D.E.D., the Massachusetts Appeals Court has now held that even where a court determines that a party committed perjury in order to obtain an order, the standard for expungement is not met. Continue reading
In 2010 the Massachusetts legislature made a significant change in the law when it created harassment prevention orders, restraining orders that plaintiffs can seek to protect themselves against harassing behavior regardless of their relationship to the harasser. (Before 2010, people seeking restraining orders in Massachusetts could receive protection only under an abuse prevention order, available only against abusers who are “family or household members” of the plaintiff seeking the order, a definition which includes anyone with whom the plaintiff has been in a serious dating relationship or with whom she has a child.) Because the harassment prevention law is relatively new, the state courts are still refining when these orders are and are not available. In the cases interpreting the law, it has become clear that the courts are struggling to strike a balance between protecting victims of real harassment from harm and unduly restricting free speech.
In a new decision issued this month in the case of Petriello v. Indresano, the Massachusetts Appeals Court has given courts considering whether to issue harassment prevention orders some important guidance, which should guide those seeking (or defending against) such orders going forward. The plaintiff in the case was an elderly woman’s representative acting under a power of attorney, seeking a restraining order against members of her deceased husband’s family. The plaintiff’s representative testified at the hearing, describing “constant . . . belittling, abuse.” The elderly woman had to go to the hospital due to apparent distress related to this conduct, and an outside investigation substantiated allegations of elder abuse against her. The district court issued a harassment protection order.
Inga Bernstein and Rachel Stroup prevailed in a Boston Police Department appointing authority hearing, in which the department sought to discipline a police officer. The officer was cleared of all charges.