Issue January/February 2017

January 2017

Multiple party representation and the new conflict rules: What you need to know

Effective July 1, 2015, the Supreme Judicial Court adopted comprehensive amendments to the Massachusetts Rules of Professional Conduct (MRPC). Among the most significant changes is the new definition of "informed consent" and the requirement that a client's informed consent to conflicts and potential conflicts be confirmed with a writing. This new requirement of a writing applies whenever an attorney represents two or more clients, commonly referred to as multiple party or common representation. Examples of common representation include preparing an estate plan for a husband and a wife, representing co-defendants in civil litigation, and representing both a buyer and a lender in a real estate closing transaction. In all of these situations, Rule 1.7 of the MRPC now requires that each client's informed consent to the potential conflicts inherent in the common representation be confirmed in writing. The ethics rules continue to discourage common representation in a criminal context given the high likelihood that an actual conflict will materialize.

Litigating standard-essential patents: recent developments

Recently, Lawyers Journal republished an article we had submitted to the Massachusetts Bar Association's Complex Commercial Litigation Section Quarterly Newsletter late last year entitled, "The Impact of Recent Decisions Regarding Patent Hold-up on the Future of Standards-Setting Activities." The article discussed a number of important court decisions issued in 2015 that affect the incentives of technology innovators to contribute their patented inventions to standards-setting bodies. Since then, the law of standard-essential patents (SEPs) has continued to evolve. In this piece, we discuss two notable decisions by the Federal Circuit and the International Trade Commission issued over the past year that impact the scope and nature of the remedies available for the infringement of SEPs, and as a result, continue to shape the incentives of technology innovators to contribute their patented inventions to standards-setting bodies.

Commercial arbitration - Spotlight on the preliminary hearing

The preliminary hearing presents the first and best opportunity for the parties, their counsel and the arbitrator to design a process for the arbitration that will effectively meet the needs of the parties. I have had quite a diverse range of experiences with preliminary hearings, both as counsel and as arbitrator. The best of them have involved creative efforts to make use of the flexibility of arbitration in order to achieve the objective of a speedy, fair and just process. Here are some suggestions for getting the most out of the critical preliminary hearing.

Employers' rights and restrictions under the new recreational marijuana use law

On Dec. 15, 2016, The Regulation and Taxation of Marijuana Act ("the Act") began to take effect in Massachusetts. It is now legal, under state law, for adults 21 years of age or older to possess and use recreational marijuana under certain restrictions. To date, voters in eight states and Washington, D.C., have passed ballot initiatives allowing for recreational use of marijuana. Twenty-one additional states have passed laws that will allow individuals to use marijuana for medicinal purposes. Looking at how other jurisdictions have interpreted employers' rights under similar laws, we can make some educated predictions on how this new law will impact Massachusetts employers.