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The Massachusetts Appeals Court considered whether a defendant willfully misled police with the intent to impede a criminal investigation after police deliberately crafted a “sham investigation into a fake crime” in order to induce incriminating statements related to an underlying drug investigation. The court reasoned that the defendant could not have formed the intent to mislead police related to a fake investigation and reversed the defendant’s conviction.
Each year, Suffolk Law Review sponsors the Donahue Lecture Series, which attracts top legal scholars from around the world to speak with students about important legal topics.
This year’s speakers will be:
The lectures will be held at Suffolk Law School at 4:00 pm. Check back soon for information on each speaker and please be sure to follow us on Twitter or on Facebook for updates.
The United State Court of Appeals for the First Circuit addressed whether, pursuant to the Massachusetts long-arm statute, it had personal jurisdiction over a Kansas corporation and its president. The corporation and its president had contracted with a Massachusetts employee to perform services for the corporation, but those services took place outside of Massachusetts. The First Circuit determined that because the employee performed work from Massachusetts under his agreement with the corporation and because he worked out of a Massachusetts-based office registered by the corporation, the court could properly exercise personal jurisdiction under the “transacting business” clause of the Massachusetts long-arm statute.
The Massachusetts Appeals Court considered whether two defendants showed a reasonable expectation of privacy concerning their cell phone data after the Commonwealth had monitored defendants’ data for a period of about a week. The court noted that the duration of police surveillance is an important factor when determining whether an individual’s expectation of privacy was reasonable. The court ultimately determined that the week-long surveillance, which covered “both weekdays and weekends” of the defendants’ daily lives, violated the defendants’ reasonable expectations of privacy.
The Massachusetts Supreme Judicial Court addressed whether the admission of expert testimony concerning rape kit testing performed on the victim by a nurse who did not testify at trial violated the defendant’s Sixth Amendment right to be confronted by witnesses against him. At trial, the nurse who administered the rape kit test did not testify, but the Commonwealth’s expert witness was permitted to testify to her understanding about how the testing had been executed. The Court held that the defendant was denied a meaningful opportunity to cross-examine about the reliability of the rape kit testimony because the expert had not been present for the test and because no witness appeared to testify about the chain of custody of the rape kit testing swabs. Furthermore, because the expert’s testimony corroborated the victim’s account, the improper admission of the expert’s testimony prejudiced the defendant. The case was remanded for a new trial.
The Massachusetts Supreme Judicial Court concluded that the smell of burnt marijuana alone is not enough to justify probable cause to believe that one is committing the civil infraction of possessing a small amount of marijuana, but rather, it supports only reasonable suspicion. In light of this conclusion, the Court held that the stop and search of a defendant’s vehicle was impermissible where an officer’s only purpose for the stop was the smell of burnt marijuana. As a result, the Court reversed the Superior Court’s order denying the defendant’s motion to suppress evidence obtained during the impermissible stop and search.
In Lopez v. Commonwealth,1 police officers sued the Commonwealth of Massachusetts and the Division of Human Resources (HRD), alleging HRD engaged in racial discrimination by creating and administering a multiple-choice examination for candidates seeking promotion to police sergeant that resulted in a disparate impact on minority candidates.2 The plaintiff class included all African-American and Hispanic police officers employed by civil service municipalities throughout Massachusetts who took the police sergeant promotional examination in the years 2005-2008 and were not “reached for promotion.”3 Consistent with the requirements of civil service law, civil service municipalities selected candidates for the police sergeant position based on a certification list created by HRD, which ranks candidates in order of scores on the promotional examination.4 The plaintiffs alleged that they were denied promotional opportunities because municipal employers relied on HRD’s certification list, despite the examination’s discriminatory impact, which caused African-American and Hispanic candidates to rank lower on the list than non-minority candidates, irrespective of equal qualifications.5
Originally, the plaintiffs brought a claim against HRD and their municipal employers, in the United States District Court for the District of Massachusetts, alleging disparate impact race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).6 The United States Court of Appeals for the First Circuit, however, dismissed the claim against HRD because the division never functioned as the plaintiffs’ “employer,” as required by Title VII, and the court remanded the case to trial against only the municipal employers.7 Not deterred, the plaintiffs proceeded to commence an action in superior court against HRD.8 Originally, the court granted HRD’s motion to dismiss after it found that the Commonwealth did not waive its sovereign immunity, and alternatively, because the plaintiffs failed to state a claim upon which relief could be granted.9 The Massachusetts Supreme Judicial Court disagreed and permitted HRD to be named as a defendant after identifying the legislature’s waiver of the Commonwealth’s sovereign immunity.10 The court further recognized that while three of the claims were properly dismissed, the plaintiffs’ allegation that HRD interfered with the right to be free from discrimination adequately stated an “interference” claim, which protects employees from racial discrimination when considered for promotion, and remanded that claim to superior court.11
I. Discrimination Liability in Massachusetts
Employers are prohibited from making employment decisions based on an employee’s race, color, religion, sex, national origin, age, or non-job-qualification-related disability.12 Title VII is the primary federal statute that prohibits discrimination on the basis of race, color, religion, sex, and national origin.13 Nevertheless, Title VII only applies to “employers,” meaning individuals or entities that fall outside this definition are not liable under the statute for discriminatory actions.14 Massachusetts enacted its own discrimination law, chapter 151B, section 4 of the Massachusetts General Laws, which similarly prohibits employers from hiring, discharging, or otherwise discriminating against employees of a protected class in compensation or terms and conditions of employment, unless justified by a legitimate reason, referred to as a “bona fide occupational qualification.”15
Chapter 151B reaches beyond its federal counterpart and holds more “employers” responsible for discrimination by specifically including “the commonwealth and all political subdivisions” in its definition of “employer.” Therefore, while the Commonwealth or its subdivisions could not be held accountable for discrimination under Title VII, it could be subject to liability under chapter 151B. In addition, some claims under chapter 151B do not require any employer-employee relationship as a prerequisite to liability.
Under both federal and state law, plaintiffs may bring two types of discrimination claims: disparate treatment and disparate impact. Disparate treatment liability arises when an employer intentionally discriminates against an employee or group of employees by treating him or them unequally based on a statutorily forbidden characteristic, such as race, sex, national origin, or age.16 Absent proof of intent, employers may still be liable under a disparate impact theory, which applies when a facially neutral employment practice has a disproportionally negative effect on a statutorily protected group.17 Disparate impact theory recognizes the possibility that some employment practices, including standardized testing, “may in operation be functionally equivalent to intentional discrimination,” although not designed to achieve a discriminatory result.18 Under Title VII, courts impose disparate impact liability to eradicate standardized employment tests that produce discriminatory results and adversely impact hiring and promotion of minority candidates.19 Nevertheless, not all discrimination statutes permit liability under both disparate treatment and disparate impact analysis, and whether both theories are available depends upon the statutory language creating the cause of action.20
Many cities, towns, and municipalities in Massachusetts hire and promote public employees under the civil service merit system.21 Civil service laws protect applicants and employees from unfair treatment and nepotism, and encourage employment decisions based on the qualifications of the job candidate, considering his ability, skills, and experience.22 The merit system requires each candidate to take a competitive examination—either for original appointment or for promotion—which is used by HRD to create a list, in order of exam performance, for the appointing authority to consider.23 While the appointing authority may elect to prepare and administer its own competitive examination, the majority use the examination prepared by HRD.24 When an appointing authority anticipates a promotion or hiring need, it must estimate the number of positions to be filled and request a certification list from HRD reflecting a candidate pool following the “2n+1 formula,” with “n” being the number of positions the appointing authority seeks to fill.25
The appointing authority may only consider candidates who appear on the certification list prepared by HRD, and if the appointing authority elects to “bypass” a higher-ranked candidate in favor of a candidate who appears lower on the list, the authority must send the aggrieved candidate a letter explaining the reasons for the bypass.26
II. Lopez’s Interpretation of Massachusetts Discrimination Law
Lopez v. Commonwealth first acknowledged the Commonwealth’s amenability to suit by recognizing that the legislature waived sovereign immunity under chapter 151B by including the Commonwealth and its instrumentalities in the statutory definition of “person” and “employer.”27 Next, the Massachusetts Supreme Judicial Court analyzed the viability of the chapter 151B claims, and dismissed the claims under sections 4(5) and 4(1), before concluding the plaintiffs could proceed with their interference claim under section 4(4A).28 The plaintiffs failed to sustain a claim under section 4(5), which makes it unlawful for “any person, whether an employer or an employee or not, to aid [or] abet . . . the doing of any of the acts forbidden under [chapter 151B] or to attempt to do so.”29 This claim was fatally flawed because the plaintiffs neglected to assert the primary act of employment discrimination committed by their direct employers, as the principal offenders, that HRD purportedly aided or abetted.30 The claim under section 4(1), which makes it unlawful for an employer to discriminate against individuals in the scope of their employment, did not proceed because the plaintiffs were not directly employed by HRD and the court refused to graft Title VII’s indirect employment theory onto Massachusetts employment discrimination law, which does not recognize such liability.31 The court permitted the interference claim to proceed against HRD after determining that section 4(4A) makes it unlawful for any person, not just the direct employer, “to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected” by chapter 151B.32 While HRD argued that the actions proscribed by section 4(4A), including interference, contemplate intentional conduct, and the plaintiffs merely alleged HRD knowingly administered a discriminatory examination, the court disagreed and held interference claims may be established by evidence of disparate impact, which is satisfied by proof that the defendant “knowingly interfered with the plaintiffs’ right to be free from discrimination,” and does not require proof of discriminatory intent.33
III. The Hyper-Extension of Disparate Impact Liability
The Supreme Judicial Court ignored statutory intent by entertaining an interference claim against a third party without first requiring proof of discriminatory motive. In order to properly determine the availability of disparate impact liability, the court should have first examined the statutory language of chapter 151A, section 4, as not all discrimination statutes permit a cause of action without proof of discriminatory intent.34 Though alone, the verb “interfere” is arguably ambiguous, when qualified by the preceding verbs—coerce, intimidate and threaten—it is clear that section 4(4A) is aimed at thwarting intentional, purposeful, discriminatory conduct.35 Further, it is difficult to ignore that in other areas of the law, the Commonwealth requires proof of intent before holding unrelated third parties liable for interfering with the rights of others.36
As the dissent reasoned, it is no secret that “statutory language should be given effect consistent with its plain meaning and in light of the aim of the legislature,” and the court’s role is to effectuate the legislature’s purpose.37 Instead, the Supreme Judicial Court exploited the ambiguity in the word “interfere” to achieve a desired result, contrary to legislative intent, and thus far outside the scope of its duty.
By failing to require intent, the Supreme Judicial Court also undercut the authority of the Massachusetts Commission Against Discrimination (MCAD), the administrative agency charged with interpreting and enforcing 151B.38 In 2003, the full commission refused to grant relief under section 4(4A) because an aggrieved party neglected to establish “intent to discriminate,” and announced that “for an individual to be held liable for a violation of M.G.L. c. 151B he must have, at the very least, ‘interfered’ with another’s rights in a manner that was in deliberate disregard of those rights.”39
Rather than delivering this unprecedented opinion, the Supreme Judicial Court should have deferred to the MCAD’s expertise in interpreting and enforcing section 4(4A), one of the antidiscrimination statutes the agency is entrusted to administer. The issue of deference is not novel to the court, as it has previously recognized that it is “particularly appropriate to defer to the MCAD’s interpretation [of chapter 151B] where . . . the legislative policy is ‘only broadly set out in the governing statute.’”40 Even the federal district court, in applying Massachusetts law, heeded the MCAD’s interpretation of “interference” and required intent for a third-party interference claim under section 4(4A).41 It is unclear why the Supreme Judicial Court refused to defer, or even acknowledge the MCAD’s interpretation, as discussed by the dissent. Until the legislature is afforded the opportunity to correct the Supreme Judicial Court’s interpretive error, third-party non-employers are vulnerable to liability for interference discrimination under chapter 151B, section 4(4A), even if they did not intend to discriminate.42
Stephanie Merabet, Case Note, Supreme Judicial Court in Lopez Permits Interference Discrimination Claim Against Third Party Without Proof of Discriminatory Intent, 1 Suffolk U. L. Rev. Online 17 (Feb. 25, 2013), http://www.suffolklawreview.org/merabet-discrimination.
Mass. Gen. Laws Ann. ch. 151B, § 4 (West 2012). According to the law in Massachusetts:
It shall be an unlawful practice . . . [f]or an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, gender identity, sexual orientation, . . . genetic information, or ancestry of any individual to refuse to hire . . . or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
When names have been certified to an appointing authority . . . and the number of appointments or promotional appointments actually to be made is n, the appointing authority may appoint only from among the first 2n + 1 persons named in the certification willing to accept appointment . . . .
Id. at 16. For example, if only one appointment will be made, the appointing authority may only select one of the first three persons named. See id. ↩
See Shafir v. Steele, 727 N.E.2d 1140, 1144 (Mass. 2000) (recognizing intentional tort of interference). The court noted:
the only difference between the torts described in § 766 [of the Restatement] . . . and § 766A is that, under § 766, the tortious conduct causes the third person not to perform, whereas § 766A involves interference preventing the plaintiff from performing his own part of the contract.
Id.; see also Restatement (Second) of Torts § 766A (1979) (defining intentional tortfeasor as one who “interferes with the performance of a contract . . . between another and a third person, by preventing the other from performing the contract”). See generally Leigh-Ann M. Patterson, Shafir v. Steele Recognizes New Tort of Intentional Interference with Plaintiff’s Own Contractual Performance, Bos. B.J., Jan./Feb. 2001, at 14, available at http://nixonpeabody.com/116427 (discussing evolution of MA law and “case of first impression” recognizing intentional tort in MA). ↩
See Woodason v. Norton Sch. Comm., 25 MDLR 62 (2003), aff’d sub nom. Sch. Comm. of Norton v. Mass. Comm’n Against Discrimination, 830 N.E.2d 1090 (Mass. App. Ct. 2005) (setting forth required elements and permissible circumstances of section 4(4A) claim). The MCAD addressed the statutory language in some depth:
While we agree that the word “interfere” does not necessarily require coercion, intimidation or threats, the concept of interference with one’s rights must be construed with some regard for the context of the statutory language within which it appears. In construing the word “interfere,” to give no import to the strong language surrounding it would be misguided.
Id. (emphasis added). ↩
Supreme Court cases reflect changing times. Suffolk University Law Review began in 1967, the year of Loving v. Virginia,1 a civil rights case that struck down state laws barring interracial marriage. In 2013, the Court has before it cases to determine the validity of federal and state laws limiting same-sex marriages.2
This piece looks at a different sector of the Court’s docket. Not coincidentally, Suffolk University Law Review Online begins as courts are paying increased attention to issues of high technology. The Supreme Court presently has four intellectual property cases pending (and two just decided), after decades in which it commonly considered one or two such cases per year.
Ass’n for Molecular Pathology v. U.S. Patent & Trademark Office3 addresses an issue with philosophical implications: Are human genes patentable? The case represents a recent surge of Supreme Court patent cases. In 1980, Diamond v. Chakrabarty held that a living thing, a genetically engineered, “human-made micro-organism” is patentable subject matter.4 In 1981, Diamond v. Diehr established that computer-implemented inventions could be patentable.5 The invention in question was a process for curing rubber, involving measuring certain temperatures and using a computer to calculate the appropriate length of time to run the curing process. Those cases also established three categories of nonpatentable subject matter: abstract ideas, laws of nature, and natural phenomena. The Supreme Court then did not address the issue of patent subject matter for decades, leaving the lower courts struggling to define the boundaries of those three vague exceptions.
In 2010, Bilski v. Kappos held that a general process for using commodity exchange transactions to hedge risks was an unpatentable abstract idea.6 In 2012, Mayo Collaborative Services v. Prometheus Laboratories, Inc. held unpatentable a diagnostic method, which consisted essentially of measuring the level of a metabolite in a patient’s blood and adjusting the dose of a drug accordingly.7 The Court held that this method was unpatentable as encompassing a law of nature combined with “well-understood, routine, conventional activity previously engaged in by scientists who work in the field.”8
The Federal Circuit in Ass’n for Molecular Pathology held that Bilksi and Prometheus did not govern the patentability of genes, on the theory that its analysis did not apply to the third category of unpatentable subject matter: products of nature.9 Rather, the Federal Circuit held that human genes were patentable—not in natural form in the body—but in the isolated form captured in a laboratory. The isolated form, the lower court ruled, was a different molecule than the natural form and so not simply a product of nature.10 If, however, the Supreme Court does extend the general approach of Prometheus, it might well hold that the gene itself is an unpatentable product of nature, and the isolated form is simply the result of “well-understood, routine, conventional activity previously engaged in by scientists who work in the field.”11
Notable also is the fact that Ass’n for Molecular Pathology will not answer the broad question of whether human genes are patentable? The facts of the case raise only the issue of whether human DNA, once isolated, is patentable. But “human genes” could encompass many other issues: Whether synthetic genes put into humans are patentable; whether DNA isolated from fossil ancestors of homo sapiens are patentable; whether genes from another species combined with human genes are patentable; and whether human DNA that did not code for a gene—but was nevertheless useful—was patentable.
Genes are also at the heart of Bowman v. Monsanto Co.,12 in which the question is: “Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?”13 In plain English, whether a farmer who purchases patented genetically modified seeds may plant the seeds that grow from the resulting plant. Such self-replicating technologies indeed raise new questions for the law.
Software can also fall into that category, and raises analogous issues. An important issue is whether someone who buys software may resell it without infringing the copyright in the software. Courts so far have enforced limitations on resale incorporated in intellectual property licenses, whether for patented seeds or copyrighted software. By contrast, copyright holders of yore were not able to shut down markets in used books.
John Wiley & Sons, Inc. v. Kirtsaeng14 reflects the increasing internationalization of trade and communications.15 The case addresses the question of whether the importation of books printed abroad under license from a copyright owner infringes the copyright owner’s exclusive right to distribute the work in the United States. A student from Thailand noticed how much more expensive textbooks were in the United States than their foreign counterparts. The enterprising student imported and sold thousands of books until publishers successfully sued him for copyright infringement. If a book is printed and sold in the United States, the purchaser may freely resell it under the “first sale” doctrine. But the Second Circuit held that first sale does not apply to books printed outside the United States, even if authorized by the copyright holder.16 The case turns on laborious issues of statutory interpretation and has good policy arguments on both sides. If first sale does not apply to foreign works, then museums in the United States are infringing by displaying foreign-made artworks they own, such as Picasso’s paintings. If first sale does apply, then perhaps United States publishers will no longer sell less expensive editions abroad, hurting education in developing countries.
Federal Trade Commission v. Watson Pharmaceuticals, Inc. addresses a different aspect of the control over the market for a product covered by intellectual property.17 When patented pharmaceuticals are reaching the end of their patent term, patent holders often sue makers of the generic versions for patent infringement. Sometimes those suits are resolved in a counterintuitive way: The patent holder pays the accused infringer as part of the settlement. Such “reverse settlement payments” look like antitrust violations: A monopolist paying a potential competitor to stay out of the market. But some courts have tended to uphold such settlements, on the theory that they encourage settlement of litigation and offer an incentive to develop generic versions of patented drugs. Watson will address the elementary question of how closely courts will scrutinize such transactions under antitrust laws.
Gunn v. Minton addressed an institutional issue, holding that state courts have jurisdiction to hear legal malpractice claims involving patents.18 Exclusive jurisdiction in patent and copyright cases has made intellectual property primarily a federal area of the law. The mere fact that Gunn reached the Supreme Court demonstrates how that has extended even to state law claims that involve federal intellectual property rights, such as the claim that a patent lawyer negligently drafted the claims in a patent application or gave faulty advice in patent litigation. The Supreme Court unanimously held that exclusive federal jurisdiction over patent law does not deprive state courts from exercising jurisdiction over state law claims in a case involving a patent.19 Gunn echoes the issues of federalism in 1967 and today, whether and how states and the federal government could regulate marriage.
Already, LLC v. Nike, Inc. addressed the question of how easy it should be for someone to sue himself or herself.20 Among legal entitlements, intellectual property rights are notoriously vague, ambiguous, and uncertain. Rights holders often assert infringement without filing suit, such as to gain leverage in licensing negotiations. The accused party may then seek to clarify rights–by suing itself by bringing a declaratory judgment action seeking a court order that it is not infringing. The party asserting rights will then backpedal, arguing there is no controversy and so no justiciable case. Already held that there was no jurisdiction where the trademark holder had filed a covenant not to sue the other party.21
These high-profile cases give a flavor of the role that technology and intellectual property have come to play in today’s society. Suffolk University Law Review Online will reflect and embody these changes.
Stephen McJohn, Commentary, Genetic Engineering, Self-Replicating Technologies–and Used Books: Intellectual Property Law in 2013, 1 Suffolk U. L. Rev. Online 5 (Feb. 25, 2013), http://www.suffolklawreview.org/mcjohn-ip2013.
Stephen McJohn, Professor of Law, Suffolk University Law School.
A quarter century ago, the Lexington, Kentucky Veterans Affairs (VA) Medical Center pioneered a risk management program now known as “disclosure and offer.” Its guiding principal was that patients injured by malpractice should be told about the incident and “made whole” without having to litigate.
After a patient suffered an injury that the VA judged to have been caused by a departure from the standard of care, the VA contacted the patient and, along with an attorney of his choosing, invited him to meet with VA staff. At the meeting, the VA disclosed the error to the patient and discussed a plan about how to meet the patient’s medical needs. With guidance from his own legal counsel, the patient was offered fair, negotiated compensation (defined as what a judgment would be, including pain and suffering, if the case went to trial).
The VA program’s creators believed advising patients to seek counsel was necessary to protect the program’s integrity: Negotiating compensation for malpractice requires experience and expertise in law and medicine alike. Risk managers have this experience, unrepresented patients do not. And, because the goal was to be completely transparent and honest, the fact that a patient had legal representation was not seen as a threat. If the attorney made an unrealistic demand, VA risk managers simply said no to it.
In 1999, the Lexington VA team published a paper describing their experience using this method. 1 They concluded that payouts were similar to hospitals in a comparison group that did not have disclosure-and-offer protocols. It also appeared to save the VA money by reducing legal expenses that would have been incurred had these cases been litigated. This was deemed a success: The program treated patients ethically, helped the VA realize savings, and facilitated patient safety analyses without fear of legal ramifications.
Today, disclosure-and-offer programs are fixtures at facilities nationwide. 2 The current generation of programs, however, appears to have adopted a self-serving approach that eliminates safeguards designed to assure patients get fair advice regarding compensation. The most recent data revealed that only four percent of disclosure programs advise patients to seek independent legal advice.3
This should not be. To disclose an error and not to offer full compensation—or to disclose an error, but then leave a patient to negotiate with a trained risk manager with adverse financial interests—puts physicians on the wrong side of a conflict of interest.4
Recent research shows why programs that avoid attorney involvement may, intentionally or not, take advantage of patients.5 Only sixty percent of the study participants (each of whom was asked to assume they had suffered an injury and then had it disclosed to them as having been caused by a clear act of malpractice) described themselves as being very likely or somewhat likely to seek counsel regarding their legal rights. The potential for abuse becomes clear when coupling this with the finding that 78.8% of those surveyed stated they would be very likely or somewhat likely to accept waiver of medical expenses only (as opposed to full damages) as compensation.
The VA believed that the disclosure-and-offer programs’ collaborative tone made it difficult for unrepresented patients to recognize the need to ask nuanced questions that were likely beyond their legal understanding. Risk managers have a primary financial responsibility to their employers that should be balanced by a skilled representative for the patient. Without this, unrepresented patients would likely never know whether an offer was sufficient to pay future injury-related expenses (for medical costs and lost earnings); whether offered pain and suffering damages (if any) approximated a likely jury value; or if the offer had been discounted for any reason (e.g. unclear liability or to build-in room with the expectation the patient would attempt to negotiate).
To prevent miscommunications or misunderstandings, we recommend that disclosure programs adopt a two-part protocol as part of any discussion of malpractice with a patient:
Nothing in these protocols should be considered revolutionary. In fact, attorneys who suspect they have committed legal malpractice must exercise these same practices with their own clients.6
Advising patients to seek counsel protects their interests and the process’s integrity too. Without it, patients may not recognize that the discussion about compensation is inherently a legal negotiation in which those making the offer have a conflict of interest. It is also important to allow patients to have a cooling-off period if they initially decline to consult an attorney. Ultimately, some patients may decide not to seek counsel, or even not to take compensation. Making this decision, however, presupposes the patient has a fair opportunity to consider the options and the effects of foregoing compensation. For that reason, no decisions should be made with unrepresented patients until they have had a fair opportunity to understand the significance of their decisions.
These best practices are not intended as a windfall for plaintiffs’ attorneys. Instead, plaintiffs’ attorneys are ethically bound to do the right thing by significantly reducing their fees if claims are resolved as a result of the disclosure-and-offer process.7 If patients are able to afford it, plaintiffs’ attorneys should work for a reasonable hourly fee. If not (or if patients would prefer to pay on a contingency fee basis), the plaintiff’s attorney is obligated to offer a contingent fee significantly less than the traditional one-third.
Compensation is a tricky issue and one in which a patient both deserves and requires advice from experienced advisors whose only loyalty is to the patient. By adopting these protocols, medical facilities and patients alike can resolve a bad situation in an ethically sound way. In the event that negotiations fail and result in a trial, hospitals are in a strong position to prove that their postincident activities were fair and patient-centered rather than self-serving.
Gabriel Teninbaum and Steve Kraman, Essay, Disclosure and Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation, 1 Suffolk U. L. Rev. Online 1 (Feb. 25, 2013), http://www.suffolklawreview.org/teninbaum-kraman.
Gabriel Teninbaum, Associate Professor of Legal Writing, Suffolk University Law School. Professor Teninbaum has written extensively in the area of medical apology. His other publications include How Malpractice Apology Programs Harm Patients, 15 Chap. L. Rev. 307 (2011) and Medical Apology Programs and the Unauthorized Practice of Law, 46 New Eng. L. Rev. 505 (2012).
Dr. Steve Kraman, Professor, Division of Pulmonary, Critical Care and Sleep Medicine, Department of Internal Medicine, University of Kentucky. Dr. Kraman is the former chief of staff of the Lexington, Kentucky VA Medical Center. Together with medical center counsel, he started and managed that facility’s disclosure-and-offer program.
A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
This is a footnote example for an author’s bio blurb.*
This is a footnote example for a journal article. 1
This is an id. 2
This is a footnote example with an online source. 3
This is a footnote example with a newspaper. 4
This is a footnote from a periodical with a link. 5
This is a supra. 6
This is a footnote example for another journal. 7
This is a footnote example for a case citation. 8
This is a footnote example for a print newspaper (prefer online).9
This is a footnote example for a book. 10
And so on. 12
*. Associate Professor of Legal Writing, Suffolk University Law School. Professor Teninbaum has written extensively in the area of medical apology.
1. See Gabriel Teninbaum and Steven Kraman Disclosure & Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation, 1 Suffolk U. L. Rev. Online 1 (2013).
2. See id. at 725–39.
3. See The Hands That Prod, the Wallets That Feed: Super PACs Are Changing the Face of American Politics. And It May Be Impossible to Stop Their Startling Advance, The Economist, http://www.economist.com/node/21548244.
4. See Sunday Dialogue: Money and Influence in US Elections, N.Y. Times, Mar. 11, 2012, § SR (Sunday Review), at 2; see also Editorial, The Wrong Way to Shake Up Congress, N.Y. Times, Mar. 18, 2012, at A18 (“Attack ads, which are [the Super PACs’] stock in trade, are tainting the political process and turning off many voters.”).
5. John Hudson, The Media Convinced Everyone to Hate Super PACs, The Atlantic Wire (Mar. 13, 2012), http://www.theatlanticwire.com/politics/2012/03/media-convinced-everyone-hate-super-pacs/49834/.
6. See Issacharoff, supra note 4.
7. See Guy-Uriel E. Charles, Democracy and Distortion, 92 Cornell L. Rev. 601 (2007).
8. Citizens United v. FEC, 130 S. Ct. 876 (2010).
9. See Sunday Dialogue: Money and Influence in US Elections, N.Y. Times, Mar. 11, 2012, § SR (Sunday Review), at 2; see also Editorial, The Wrong Way to Shake Up Congress, N.Y. Times, Mar. 18, 2012, at A18 (“Attack ads, which are [the Super PACs’] stock in trade, are tainting the political process and turning off many voters.”).
10. John Hart Ely, Democracy and Distrust (1980).
11. Heather K. Gerken & Michael S. Kang, The Institutional Turn in Election Law Scholarship, in Race, Reform, and Regulation of the Electoral Process 86 (Guy-Uriel E. Charles, Heather K. Gerken & Michael S. Kang eds., 2011).
12. Remarks by the President in State of the Union Address, The White House (Jan. 27, 2010, 9:11 PM), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address.