News from the Courts

Issue August 2015

Kafker sworn in as next chief justice of the Massachusetts Appeals Court

On July 22, Lt. Gov. Karyn Polito administered the oath of office to the Hon. Scott L. Kafker, who was sworn in as the sixth Chief Justice of the Massachusetts Appeals Court in a small, private ceremony at the State House. Gov. Charlie Baker appointed Kafker to fill a vacancy created by the retirement of former Appeals Court Chief Justice Phillip Rapoza.

"Justice Kafker is a brilliant jurist, who is considered by both peers and lawyers alike to be one of the premier constitutional scholars on the Appeals Court bench," said Massachusetts Bar Association Chief Legal Counsel and Chief Operating Officer Martin W. Healy. "Governor Baker's outstanding choice for his first judicial nomination shows his commitment to selecting intelligent court leaders who are capable of steering the court through changing times while maintaining a strong commitment to justice."

SJC announces appointment of BBO executive director

The Justices of the Supreme Judicial Court have appointed Margaret K. Carlson as executive director of the Massachusetts Board of Bar Overseers, effective July 6, 2015.

The Board of Bar Overseers was established by the Supreme Judicial Court in 1974 as an independent administrative body to investigate and evaluate complaints against lawyers. The 12-member board is comprised of volunteers appointed by the SJC to four-year terms. Eight of the members are lawyers; the other four are public members. The board acts as an administrative tribunal to consider disciplinary charges brought by bar counsel. When a lawyer is found guilty of misconduct, the board either imposes discipline or recommends to the Supreme Judicial Court that more serious discipline be imposed.

For the past four years, Carlson has worked as vice president of Administration of Pathfinder International in Watertown, where she led and managed operations of the global organization, including corporate governance, information technology, knowledge management, global safety and security, global leasing and facilities, and contracts and legal matters, among other responsibilities.

The activities of the board are governed by Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers. Although it is an official body subject to the supervision of the SJC, no public funds are spent to support it. The board's expenses come solely from the annual registration fees paid by lawyers.

Board of Bar Overseers members include:

  • Donna Jalbert Patalano, chair
  • Vincent J. Pisegna, vice chair
  • Paul F. Hanley
  • Erin K. Higgins
  • Thomas A. Kenefick III
  • Francis P. Keough
  • David B. Krieger M.D.
  • John J. Morrissey (MBA Vice President)
  • Regina Roman
  • David A. Rountree
  • Kevin P. Scanlon
  • Michael G. Tracy

Comments sought on proposed revisions to Rules 5.4 and 5.5 of the Rules of Professional Conduct

Revisions to Rule 5.5 of the Rules of Professional Conduct

The Standing Advisory Committee on the Rules of Professional Conduct has proposed changes to Rule 5.5 of the Rules of Professional Conduct to permit lawyers from foreign countries who are in good standing in their home countries to act as in house counsel to an employer in Massachusetts.

The American Bar Association recently revised its Model Rule 5.5 to authorize foreign lawyers in good standing to act as in house counsel without being formally admitted to the bar of the state where the in house counsel practices. The committee deferred consideration of this change as part of the substantial revisions to the Rules of Professional Conduct recommended to the court and which the court reviewed and adopted with revisions effective July 1, 2015. The deferral permitted the committee to consult with the Board of Bar Overseers to confirm that it was willing to propose any necessary corresponding amendments to its rules relating to the registration of in house counsel.

Upon consideration, the committee has adopted most of the changes proposed by the ABA in its Rule 5.5, with the exception of the ABA revision to Rule 5.5(d)(1) that would require the foreign lawyer to associate with or be supervised by a locally admitted lawyer when addressing matters of U.S. law. The committee understands the concern that a foreign lawyer may be less familiar with relevant U.S. law than lawyers admitted in another U.S. state, who are not required to be associated or supervised by locally admitted counsel. However, the committee views this issue of competence as one that can be adequately addressed by the lawyer's employer in the definition of the foreign lawyer's responsibilities. The committee also believes that in appropriate circumstances the foreign lawyer may be competent to address particular local issues involved and need not be subject to a requirement to associate with or locally admitted counsel. The comments were correspondingly revised to correspond to the proposed changes in Rule 5.5.

Revisions to Rule 5.4 of the Rules of Professional Conduct

The Standing Advisory Committee has also proposed a change to Rule 5.4(a)(4) to delete subclauses (i), (ii) and (iii) as redundant with the definition of qualified legal assistance organization and unnecessarily burdensome. The proposed changes to Rule 5.4(a)(4) require no changes to the comments to the rule.

The committee will make its recommendation with respect to Rules 5.4 and 5.5 to the Justices of the Supreme Judicial Court following receipt and review of public comments. Comments are due by September 30, 2015, and should be directed to the Standing Advisory Committee on the Rules of Professional Conduct c/o Senior Attorney Barbara Berenson, John Adams Courthouse, One Pemberton Square, Boston MA 02108.

Housing Court chief to retire

Housing Court Chief Justice Steven D. Pierce has announced he will retire on Sept. 30, 2015. First named chief justice in 2006, he was reappointed to a second five-year term in January 2011. Pierce became a Housing Court judge in 2003 after serving as executive director of the Massachusetts Housing Finance Agency and in varied positions for the Executive and Legislative branches.

Pierce has led the Housing Court as it has become more widely recognized for its expertise and resources, such as housing court specialists who mediate cases. Bills are currently under consideration in the Legislature to expand the Housing Court to the entire state as 30 percent of the state's population is not served by the Housing Court. Statewide access to Housing Courts is a critical component of access to justice for court users across the state.

The Housing Court Department is comprised of five divisions with 10 authorized judicial positions across the commonwealth. The Massachusetts Trial Court includes seven court departments with 379 judges who deliver justice in 100 courthouses across the state.