Boston Lawyer Blog

Published on: August 31, 2018

Commonwealth v. Gomez: A Conditional Victory for Defendants

Earlier this month, the Supreme Judicial Court held that a defendant has a right to enter a “conditional plea.” A conditional plea allows a defendant to plead guilty but preserves the defendant’s right to appeal some of the trial court’s rulings on legal issues. If the defendant wins the appeal, the plea becomes unenforceable; it is essentially void. For defendants who have legal defenses to charges – like, for example, a motion to suppress, or a challenge to the government’s interpretation of the reach of a particular criminal provision – a conditional plea is often the only meaningful way for defendants to challenge a lower court’s ruling. Continue reading

Published on: August 30, 2018

Advice for Parents of Incoming College Students: What You and Your Child Need to Know About Sexual Assault and Harassment

by Monica Shah

Labor Day Weekend is fast approaching and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. Although there has been recent news about potential reforms to the Department of Education’s (DOE) regulations and guidance on sexual misconduct, no changes have taken effect to date and therefore it is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure.

Published on: August 14, 2018

After Years of Failed Efforts, Massachusetts Passes Reform of Noncompetition Agreements

by David Russcol

On August 10, 2018, Governor Baker signed a new law that, among many other things, restricts and reforms noncompetition agreements, which are commonly used by employers in some sectors of the economy. Noncompetition agreements, or noncompetes, restrict what an individual can do during or after their employment – typically, to prevent them from working for competitors or entering market areas where the employer is already present. Although reasonable noncompetes sometimes serve to protect legitimate business interests of an employer, they can also be used to punish employees who decide to leave, or even lock them into their current employers by severely limiting permissible opportunities to work elsewhere. In one egregious case, the sandwich shop Jimmy John’s attempted to use noncompetition agreements to stop fast food workers from leaving for competitors, although they stopped this practice after investigations by multiple state attorneys general.

Published on: August 10, 2018

Is it Illegal to Secretly Record Someone in Massachusetts?

by Zoraida Fernandez

Recently, national news outlets reported that President Trumps’ attorney, Michael Cohen, had surreptitiously recorded conversations between the two discussing a deal with Stormy Daniels. While it seems that Trump had no indication that he was being recorded, and, according to his tweets, was shocked and indignant with Cohen’s actions, New York is a one-party consent state and (putting attorney/client confidentiality issues aside) Mr. Cohen’s actions appear not to have been illegal. That would not be the case in Massachusetts. Our Commonwealth is a two-party consent state; the Massachusetts Wiretap Statute requires that all parties to the communication consent to the recording. In this post, I will explain what actions are illegal, the potential consequences of violating the law, and whether the law applies to recording of police officers. Continue reading

Published on: August 6, 2018

Doe v. Boston College: The First Circuit Allows an Accused Student’s Claims to Proceed to Trial, But Dodges the Big Questions

by Ana Muñoz

Until this spring, the First Circuit had not decided many major student discipline cases in over thirty years. In June, the Court handed down its long-awaited decision in Doe. v. Trustees of Boston College.

The case concerns an alleged sexual assault that took place on a dance floor in 2012. A female student – “A.B” – was assaulted at a party on a boat sponsored by a Boston College student organization; she felt someone put fingers up her skirt and touch her without her consent. She identified Doe as the assailant. But Doe denied the charges – and eventually presented video evidence that suggested another student – J.K. – had committed the act. Indeed, the video was so convincing that the Middlesex County District Attorney dropped the criminal charges against Doe. Yet, after a series of procedural irregularities, a Boston College disciplinary panel found Doe responsible for the assault and he was suspended from the college. Two years later, the school agreed to review the case after his parents asked the President to look into it, but ultimately declined to change its conclusion. Doe and his parents sued.

Published on: July 27, 2018

Do Colleges Have to Investigate Sexual Assault Claims By Students from Other Schools?

by Ruth O'Meara-Costello

Allegations 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.

Published on: July 26, 2018

Massachusetts Will Offer Life-Changing Paid Family and Medical Leave for Workers

by Zoraida Fernandez

On June 28, 2018, Charlie Baker signed An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, part of a “grand bargain” between social justice advocates who pushed for paid family leave and a higher minimum wage and retail business representatives who urged a lower sales tax.

With passage of this law, Massachusetts is now the sixth state (plus Washington D.C.) to offer paid family and medical leave to employees. It will also outdo the U.S., which is currently the only country in the 41 Organization for Economic Cooperation and Development (OECD) and European Union nations that does not offer any paid family or medical leave.

In this post, I will focus on the family and medical leave portion of the new law, which will take effect in 2021, and the legal protections it will provide for Massachusetts employees.

Published on: July 18, 2018

Despite Legalizing Marijuana, Massachusetts Trafficking Laws Harshly Punish Unlicensed Distributors

by David Duncan

Marijuana has been in the news this summer. Medical marijuana has been increasingly available in Massachusetts since it was approved, first by voters then by the legislature in 2012. There are currently 36 medical marijuana dispensaries regularly providing marijuana to medical cardholders. In the first half of 2018 well over 9,000 kilograms of marijuana has been dispensed to some 56,000 cardholders.

On July 1, in compliance with a ballot initiative approving the recreational use of marijuana, the state licensed the first grower for recreational marijuana, approving 10-20,000 square feet of grow space. That single licensee, by industry estimates, should be capable of producing, very conservatively, 30 grams per square foot per harvest, or 30-60 kilograms per harvest. Assuming 6 harvests per year, this licensee should be able to produce 180-360 kilograms of marijuana per year. There are 40 pending applications for cultivation licenses. In addition, recreational users are permitted to grow their own plants for personal consumption.

Published on: July 12, 2018

Massachusetts “Red Flag” Law Permits Swift Action to Confiscate Weapons Based on a Risk of Injury

by David Russcol

On July 3, 2018, Governor Baker signed a law permitting a court to order firearms and other weapons to be taken away from a licensed individual who “poses a risk of causing bodily injury to self or others” for any reason. This so-called “red flag” bill is similar to laws that have been increasingly passed in other states in the wake of mass shootings such as the school shooting in Parkland, Florida. The new law is designed to make it easier to remove guns from the equation where there is an indication that someone is in crisis or may engage in violence. In Parkland, police had been alerted to concerns about Nikolas Cruz’s violent propensities, but they had no legal authority to remove the guns he already owned. Although police chiefs in Massachusetts have broader discretion to suspend or revoke firearm licenses than authorities in many states (since here only someone whom a police chief determines to be a ”suitable person” according to set criteria receives a license to carry firearms), the suspension or revocation process is not designed for fast action in response to changing circumstances. Continue reading

Published on: June 19, 2018

Massachusetts Courts Grapple with the Problem of Statutory Rape

by Ruth O'Meara-Costello

Justice Gaziano, of the Massachusetts Supreme Judicial Court (“SJC”), makes a proclamation in the first paragraph of that Court’s recent decision in Commonwealth v. Wilbur W. that may be startling to many members of the public, especially teenagers: “When two minors have consensual sexual relations, both of whom are members of the class the statute [criminalizing statutory rape] is designed to protect [i.e. they are under 16], each has committed a statutory rape.” What Justice Gaziano does not mention is that the crime of statutory rape carries a penalty of up to life in prison, as well as lifelong sex offender registration. This reality raises significant questions about how we as a society handle sex between juveniles and when the criminal law is an appropriate—or humane—tool. The SJC largely dodged those questions in Wilbur W., but they are bound to recur, probably sooner rather than later, in the courts of the Commonwealth. In the meantime, juveniles remain subject to the same criminal liability as adults for having sex with anyone under 16—even if the sex is consensual, and regardless of how their age compares to that of their partner.

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