Family Law Section - Boston Bar Association Law Section Co-chairs Steven E. Gurdin Sally & Fitch LLP seg@sally-ﬁ tch.com Frances M. Giordano Rubin and Rudman, LLP fgiordano@ rubinrudman.com

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A PUBLICATION OF THE BOSTON BAR ASSOCIATION FAMILY LAW SECTION

Family Law Section

Spring 2010 Newsletter

2 SPRING 2010 SPRING 2010 3

Family Law Section Co-chairs

Steven E. Gurdin Sally & Fitch LLPseg@sally-fi tch.com

Frances M. Giordano Rubin and Rudman, LLP

fgiordano@ rubinrudman.com

Inside this IssuePage 3 Upcoming Events/Resources

Page 4 Past Events

Page 6 Recent Case Law Summaries By Kristine Ann Cummings

Page 8 Rule 1:28 Decision Case Summaries By Rosanne Klovee, Esq.

Page 11 201 CMR 17:00 - Is Your Firm in Compliance? By Wendy O. Hickey, Esq.

Page 17 Pro Bono Opportunity to Offer Limited Assistance Representation By Amy C. Egloff

Page 18 Book Review: “Sex, Love & Money” by Gerald Nissenbaum, J.D. and John Sedgwick By Theresa B. Ramos

Views from the Bench: Suffolk County Probate and Family Court Judges and Judicial Case ManagerJune 8 from 5:30 - 6:30 pm

Come hear Justices and a Judicial Case Manager of the Suffolk Probate and Family Court speak on current and relevant issues for the family law bar. Please join us for a reception following this program.

Panelists:Justice Joan Armstrong, Associate Justice, Suffolk Probate and Family CourtDaniel J. Gibson, Judicial Case Manager, Suffolk Probate and Family CourtJustice Elaine M. Moriarty, Associate Justice, Suffolk Probate and Family CourtJustice John M. Smoot, First Justice, Suffolk Probate and Family CourtJustice Jeremy A. Stahlin, Associate Justice, Suffolk Probate and Family Court

ResourcesLegal Advocacy & Resource Center, Inc. (LARC) a special project of the Boston Bar Foundation with additional fi nancial support provided by the Massachusetts Bar Foundation.

The LARC Intake Update is a monthly newsletter that lists current intake information for major legal services programs throughout the state of Massachusetts. The fi rst section lists general civil legal programs, and the second section lists programs that handle specifi c legal topics.

A link to this newsletter can be found here: http://www.bostonbar.org/sc/fl /Intake_Update_May_2010.pdf.

Upcoming Events

http://www.bostonbar.org/sc/fl/Intake_Update_May_2010.pdf


April 12, 2010 - Entrepreneurial Private Practice Alternatives in a Changing

Gain insight as to what it is like to practice in a solo or small fi rm setting, as panel members in solo and small fi rm practices--some brand new, some well-established--share their experiences. In this interactive program, lawyers with varying career paths and experience in a variety of substantive practice areas will discuss issues such as: What is it like to open your own fi rm? What are the biggest challenges and satisfactions? Is there a best time to think about practicing in a solo/small fi rm set-ting? Are there opportunities for lawyers in a transition mode to sample what it may be like to work in a solo or small fi rm? What are the most important things to think about before deciding to go the solo or small fi rm route? Join us for what will be an illuminating program for anyone considering private practice in a solo or small fi rm setting.--------------------------------------------------------------------------------

April 13, 2010 - The Unemployed/Underemployed Spouse in a Divorce Case

Learn from Mary R. LaCivita, Boston Law Collaborative, LLC., and Paul Blatchford, Vocational Consul-tant, how to use a vocational expert in your family law case, including selling the idea to the client, demonstrating the likely return on their investment, considerations for attributing income to an unem-ployed/underemployed spouse (such as how the new Child Support Guidelines are affected by attrib-uted income) and how such a report can be the impetus for settlement.--------------------------------------------------------------------------------

April 21, 2010 - Marketing and Client Relations in Recessionary Times

Howard I. Goldstein, Rosenberg, Freedman and Goldstein LLP, will help you learn how to plan for the long term, and the inevitable economic recovery, by laying the groundwork now! The speaker will dis-cuss networking and client relations skills, social media and internet marketing, and structuring your practice in a way that will maximize client retention and referrals from existing clients.--------------------------------------------------------------------------------

May 27, 2010 - Understanding Psychopathology and the Impact on Parenting

Learn how a mental illness (such as a mood disorder) in a client does and does not affect their ability to parent. As an attorney, how do you identify that your client is dealing with a mental illness, whether it might be situational or more chronic, how to handle it in terms of working with the client, their providers and/or advocating for your client in court.

Past Events (cont.)

January 12, 2010 - Marketing Your Family Law and/or Children’s Law Practice

In these challenging economic times it is critically important to be able to market your practice to at-tract clients and bring in business. Join Joyce Kauffman, Law Offi ce of Joyce Kauffman, and Peter A. Hahn, Hilton, Sindelar & Hahn, for an informative and engaging session regarding marketing strate-gies, tools and creative ideas for building and promoting your practice in the areas of family and children’s law.--------------------------------------------------------------------------------

February 3, 2010 - Privacy in the Courts: Understanding the new Guidelines for the Protection of Publicly Accessible Court Documents

Join Peter Sacks, Offi ce of the Massachusetts Attorney General, and learn the rules on fi ling publicly accessible court documents containing private information. On September 1, 2009, guidelines is-sued by the Supreme Judicial Court went into effect. Though compliance is currently voluntary, the SJC will be issuing mandatory guidelines in the near future. To aid in the development of the perma-nent mandatory rules, the SJC’s working group on the issue seeks information and feedback on the existing guidelines based upon attorneys’ experience working with them. Many attorneys are, howev-er, unaware of the guidelines. This program will provide an opportunity for participants to learn more about the guidelines and thereby enable them to participate in the development of the fi nal rules. --------------------------------------------------------------------------------

February 9, 2010 - Board of Bar Overseers “Hot Topics” for the Family Law Prac

You are invited to hear from Joseph S. Berman, Looney & Grossman, LLP, and John W. Marshall, Board of Bar Overseers, about the common ethical pitfalls for family law practitioners that can draw BBO and malpractice complaints. Learn how to avoid these mistakes and ensure that you are zeal-ously representing your client while staying within the bounds of the ethical rules. This program will be moderated by Alexander D. Jones, Looney & Grossman, LLP.--------------------------------------------------------------------------------March 9, 2010 Tips for Negotiating and Drafting Separation Agreements

This seminar will provide mediators and divorce practitioners with the basics and intricacies sur-rounding the negotiation and drafting of separation agreements. Given that up to 90% of divorce actions settle, mastering the skill of negotiation and drafting an agreement while avoiding common mistakes is essential to a quality practice.First Justice Peter DiGangi and Associate Justice Spencer Kagan from the Middlesex Probate and Family Court will offer their valuable insight on issues that arise in separation agreements presented to them for approval. Negotiation and drafting tips on important tax implications, property division, alimony, parenting plans, child support, college costs, and health and life insurance will be offered by a seasoned mediator and divorce attorneys.

Past Events


Tammaro v. O’Brien, 76 Mass.App.Ct. 254 (2010)Within days of the entry of a judgment of divorce nisi, the mother fi led a complaint for modifi cation in which she sought to remove the parties’ four minor children to New Hampshire. The trial court granted the requested relief and the judgment was affi rmed on appeal.

At the time of divorce, the parties entered into a separation agreement by which they agreed to share legal custody of their four minor children and for the mother to have physical custody; said agreement, which was incorporated into a judgment of divorce nisi dated June 15, 2005, also set forth a comprehensive parenting plan.

Within days of entry of said judgment, the mother, on June 21, 2005, fi led a complaint for modifi cation seeking permission to remove the children from Massachusetts to New Hampshire and for the court to modify the parenting plan. Although the parties resided in Brockton, Massachusetts during the divorce, the mother was offered a lucrative employment position in Methuen, Massachusetts (approximately ninety minutes from Brockton) just prior to the date the parties signed the agreement; the proposed move to Derry, New Hampshire would place the mother substantially closer to her workplace.

At trial, the judge applied the “real advantage” test and found that the mother had demonstrated good, sincere reasons for the proposed move such as to constitute a “real advantage” to her. Specifi cally, the judge found that the move offered a fi nancial and emotional benefi t to the mother where it would reduce her commuting time to her new place of employment, reduce her stress, enable her to plan her work time more effi ciently and permit her to spend more time with the children as well as be more easily assessable to them. Additionally, the

move would allow the mother to obtain suitable housing within her price range.

Although the father asserted that the mother’s request for removal lacked sincerity and good faith in that she “lied” to the court and him when she entered into a divorce agreement with which she never intended to comply, the judge found that the parties’ parenting plan was “destined to fail from the outset” because of the mother’s pending employment opportunity and the father’s business travel schedule, stating that the father “knew there was a change in the offi ng… and should not have been surprised by the mother’s actions after the agreement was signed”. The judge further rejected the father’s argument that the mother was motivated by a desire to limit his parenting time.

Having concluded that the mother had established a good reason for the proposed move, the trial judge applied prong two of the “real advantage” test in order to determine whether the removal was in the best interests of the children. The judge considered collectively the interests of the father, the mother and the children, including “the effect of the proposed move on the emotional, physical, and developmental needs of the children, including whether the quality of the children’s lives may be improved by the change…”. Specifi cally, the court found that in addition to the many benefi ts provided to the mother by the move that would also fl ow to the children, such as the benefi t of having the mother signifi cantly closer to their home and school, the move would also allow the children to reside in a new home in a quiet neighborhood close to a new elementary school. The Appeals Court decision also noted that the trial judge took into account continuing visitation by the father with the children.

In affi rming the lower court’s decision, the

Recent Case Law SummariesBy Kristine Ann Cummings

Appeals Court concluded that the trial court’s fi ndings “amply support its judgment” permitting the mother to remove the children from the Commonwealth to New Hampshire.

Zizza v. Zizza 456 Mass. 401 (March 30, 2010)In December 2008, nearly ten years after the parties’ divorce, the former wife, on behalf of herself and her two minor children, fi led an action in the Superior Court against her former husband, his employer, and the employer’s principal, alleging, inter alia, the breach of an agreement between the former spouses regarding child support, and seeking payment of child support arrearages and specifi c performance of the contract. Specifi cally, the former wife’s complaint alleged that the former husband had agreed, in 1999, to pay the amount of $262 per week in child support, “and would have such taken from his paycheck by his employer and sent directly to [the former wife]”; although the husband and his employer had complied with the agreement since 1999, no weekly paycheck deduction had occurred since September 2008, nor had the father made any regular child support payments.

The employer and the former husband each fi led motions to dismiss under, inter alia, Rule 12(b)(10) of the Massachusetts Rules of Civil Procedure for failure to satisfy the amount in controversy required to proceed in the Superior Court. After hearing, the Superior Court judge ordered the complaint dismissed against all defendants pursuant to Mass. R. Civ. P. 12(b)(10) for failure to satisfy an amount in controversy requirement.

The former wife appealed the dismissal to a single justice of the Appeals Court, who vacated the order of dismissal but reported the case to a panel of the Appeals Court. The Supreme Judicial Court transferred the case from the Appeals Court on its own motion.

In its decision, the Supreme Judicial Court stated that it agreed with the Superior Court judge and

Recent Case Law Summaries By Kristine Ann Cummings

the single justice of the Appeals Court that any damages awarded to the former wife were not likely to exceed $25,000 as possible unpaid amounts of child support in the future may not currently be considered as part of the plaintiff’s damages. Citing the case of Larson v. Larson, 30 Mass.App.Ct. 418, 426, (1991), the Court noted that (“later violations [by defendant of monthly payment obligations pursuant to divorce agreement] were not and could not have been raised in the original action because the times for payment had not yet occurred or given rise to any cause of action in favor of [plaintiff]”). The Court further held that although the former wife’s equity claim fell squarely within the Superior Court’s broad equity jurisdiction and the judge had the power to exercise ancillary jurisdiction over damages claims for less than the statutory threshold amount, the court had discretion in determining whether or not to retain the action and exercise its ancillary jurisdiction as an alternative to dismissing the action for refi ling in the District Court.

In the case at hand, the Supreme Judicial Court held that the Superior Court judge had acted within his discretion in declining to retain the action as against the former husband’s employer and employer’s principal as defendants, concluding that the action was one where the contract claim for damages was paramount, the amount at issue small, and that although he might exercise his discretion to retain the action in the Superior Court, “the District Court is better equipped than the Superior Court to handle such a matter on a time-and-cost-effi cient basis.” Although the former husband’s motion to dismiss under rule 12(b)(10) was not timely, the SJC further held that with respect to the action against the former husband as the defendant, the Superior Court judge could properly raise the issue of the damage limitation amount in connection with a civil action that includes a claim for money damages, whether or not an equitable claim is included, even in the absence of a timely motion to dismiss on such ground.


The order of the single justice of the Appeals Court was reversed, and the matter remanded to the Appeals Court for entry of an order affi rming the Superior Court judgment of dismissal.Atkinson v. Garvin, 76 Mass App Ct. 1107 (January 14, 2010)

Court may order that custody be given to a person who is not the biological parent only in two situations: either when it is in the child’s best interests and the child’s surviving parent consents; or when it is the child’s best interests and the parents or surviving parent is determined to be unfi t. In this case the father’s complaint to establish paternity came six years after the birth of the child but he was found to be fully fi t.

Mikels v. Mikels, 76 Mass. App. Ct. 1109 (January 26, 2010)

Denial of husband’s request for reduction in undifferentiated alimony and child support obligations was not an abuse of discretion. For purposes of separation agreement, husband deemed to have an annual income of $400,000.00. Agreement explicitly said that “by reason of adjustments solely for the purpose of resolving disagreements between the parties in arriving at a settlement of this matter, an income fi gure of $400,000 annually for the husband has been utilized. When he fi led complaint for modifi cation, his income was $347,000. At time of divorce, his income on his fi nancial statement was $348,000. Thus, no material change in circumstances. Trial judge rejected husband’s argument that he should have established the theoretical $400,000 annual income specifi ed in the separation agreement as the baseline of his income for purposes of the modifi cation. Nothing in the separation agreement indicated any intention that the compromise fi gure of $400,000 had any utility following the divorce; not an abuse of discretion to not attribute any

continuing effect as a baseline for modifi cation purposes.

Korman v. Korman, 76 Mass. App. Ct. 1112 (February 11, 2010)

Wife appealed judgment of divorce claiming that the judgment was wrong and excessive and that she should recover a share of the equity in the home because she made a signifi cant investment of time and fi nancial resources into the marital enterprise. Trial judge properly considered the Section 34 factors. Husband purchased the home six years before the marriage. Affi rmed.

Sachdev v. Khanna, 76 Mass. App. Ct. 1113 (February 17, 2010)

Husband appealed judgment of divorce. Husband and wife were married in India in 2004 and subsequently moved to Massachusetts. Their son was born in 2006. Husband earned $95,000 a year exclusive of bonuses and sent undetermined amounts of money from his earnings to accounts and to family in India. Wife earned 70% of the husband’s salary. She was solely responsible for the care of the child and the household. Husband was abusive toward the wife during the marriage. On same day as she fi led for divorce, the wife obtained a restraining order against the husband. Three months after the wife fi led for divorce, the Husband went to India and did not return. Trial judge granted the wife legal and physical custody of the child and ordered husband to pay $350 per week in child support and arrears were established at $22,475. Judge made property division orders. Husband’s argument that the Probate Court lacked jurisdiction because the parties were married in India failed. Husband’s claim that he did not have the opportunity to “defend his case” failed because he voluntarily left Massachusetts, chose to remain in India and had the opportunity

to be represented by counsel and to participate in proceedings in writing and by phone. Husband’s claim that judge erred in denying his motion to reduce support failed because he voluntarily resigned his job in the U.S., enjoys an upper class lifestyle in India, is working on plans to develop a company, is highly employable and has a $75,000 earning capacity. Husband’s suggestion that assets in India were not part of the marital estate failed because the term “estate’ encompasses all property to which a party holds title, whenever and however acquired.

Hagenian v. Hagenian, 76 Mass. App. Ct. 1114 (February 24, 2010)

Plaintiff appealed from an Order of the Probate & Family Court judge dismissing an earlier appeal for failure to docket an appeal within ten days pursuant to Mass.R.A.P. 10(a)(1). Plaintiff fi led a timely notice of appeal from the judgment but failed to prefect the appeal. Trial records was not assembled until two years after the notice of appeal and plaintiff did not pay the docketing fee within ten days after notice of assembly. Probate and Family Court judge allowed defendant’s motion to dismiss for failure to timely docket an appeal. Plaintiff’s position on appeal that his neglect in failing to docket the appeal was excusable because a clerk of the Probate and Family Court sent the formal notice of the assembly of the record to the plaintiff’s former counsel was unreasonable. Plaintiff should have followed up by docketing the appeal.

D.V. v. W.C., 76 Mass. App. Ct. 1116 (March 3, 2010)

Parties were married in 1977 and had one child in 1977. They were divorced in 1979 on grounds of cruel and abusive treatment by the father. Mother granted custody and father was ordered to pay child support of $50 per week and arrears of $2,750. On June 2, 1982, mother fi led a complaint for contempt pro se alleging the father failed to pay any child support. Two attempts at service of the summons failed as the sheriff’s

offi ce could not locate the father. In 2001, the mother tried unsuccessfully to collect the child support arrears through a private company. In 2006, the father and son made contact with each other after many years. In 2007, the mother fi led a new complaint for contempt alleging non payment of support and the father was served. Father fi led a motion to dismiss. At the hearing, the Probate and Family Court judge instructed the parties to make additional written submission. In the memorandum of decision, the judge denied the father’s motion to dismiss and found him in contempt. Arrears were established at $41,965 plus interest. Father argued on appeal that the judge erred in not holding an evidentiary hearing on the contempt complaint. Argument failed because the father assented to proceeding on written submissions and he did not request an evidentiary hearing until after the issuance of the judgment. Father also argued that mother’s delay in bringing the contempt complaint constituted latches. Father’s unpaid child support obligation became vested as judgments by operation of law and the defense of latches was not available to him. evidentiary hearing until after the issuance of the judgment. Father also argued that mother’s delay in bringing the contempt complaint constituted latches. Father’s unpaid child support obligation became vested as judgments by operation of law and the defense of latches was not available to him.

Epstein v. Epstein, 76 Mass. App. Ct. 1121 (March 30, 2010)

Husband appealed judgment of divorce ordering him to pay $900 a week as child support subject to an annual cost of living adjustment, 30% of his gross bonus as additional child support, alimony in the amount of $500 per week subject to a cost of living increase and division of property. Judgment affi rmed. Husband’s claim of possible future hardship arising from the cost of living increase was unpersuasive in light of the trial judge’s fi ndings that he has been able to develop a successful and lucrative

Rule 1:28 Decision Case SummariesBy Rosanne Klovee, Esq.

Rule 1:28 Decision Case Summaries By Rosanne Klovee, Esq.


201 CMR 17:00 - Is Your Firm in Compliance?By Wendy O. Hickey, Esq.

On March 1, 2010, 201 CMR 17:00 took effect (copy attached). All of us, from large fi rms to solo practi-tioners, now need to have a “Written Information Se-curity Plan” or WISP detailing how the offi ce handles the protection of personal information of their clients and employees. The WISP must address what specifi c information is being protected and how the information is being protected. It must be signed by all of your offi ce staff.

The protected information is defi ned in the regula-tion. Essentially, we need to protect anything that includes a person’s name together with a bank, investment, retirement or other account number, credit card number, driver’s license number, social security number or birth date. Personal information is kept by most offi ces electronically and in hard copy. Different steps need to be taken to protect each type of personal information.

Physical paper documents need to be protected from people who may have access to your offi ce space who do not work for you. Measures must be in place so that your offi ce staff secure physical personal information when they leave for the day. Some fi rms have chosen to lock individual offi ces within the offi ce space at night and no longer permit cleaning staff or other non-employee personnel working in their offi ce building access to lawyer’s offi ces during off hours. Other fi rms have chosen to install locked fi le cabinets in each lawyers’ offi ce and require those lawyers to clean their offi ces each night locking away any documents containing personal information. Still others have chosen to get the building security and cleaning staff to sign a third party compliance contract binding their companies to your fi rm’s WISP. Any of these policies is acceptable.

You also need to consider how to protect physical paper documents that attorneys may take home to work on in the evening, on weekends; or entire fi les attorneys may take home the evening before trial. This may sound crazy but as I read the regulation, the WISP needs to include a specifi c policy requiring such things as employees who take fi les home must

lock the doors to their homes.

Personal information stored electronically also needs to be protected. Servers, desktop computers, laptop computers, PDA’s and blackberries all need to be password protected if they have the ability to access personal information. Removable disk drives and back up tapes or disks must be encrypted if they are being used to transport electronic fi les containing any personal information. Also emails containing any personal information must now be encrypted.

Most people realize that the above described mea-sures need to be in place to protect the personal information of their clients and employees. What not everyone seems to realize are some of the day to day changes we needs to make to the way we prac-tice law. For example, we must now be prepared to request WISP compliance statements from oppos-ing counsel prior to exchanging anything containing personal information, thus adding new logistics to the initial stages in a divorce case.

How many times has a new case come into your of-fi ce where the client has been served with a divorce complaint, motion for temporary orders and demand for fi nancial statement? A regular occurrence in this business for sure. Now, before you can comply with the demand for your client’s fi nancial statement, you need a certifi cation of compliance from opposing counsel stating that their offi ce is in compliance with this regulation. Arguably, this even applies to cases where an updated fi nancial statement has been demanded in an ongoing matter which pre-dated the enforcement of this regulation.

The problem arises when you encounter a fi rm that does not yet have a WISP - and trust me - they are still out there - some larger fi rms and some very small. What do you do? You can’t turn any per-sonal information over that is for sure. You could try redacting the personal information contained in the document the other side is seeking which places a burden and risk on you. Another option is to seek a protective order from the court so that you do not

law practice that should continue to provide him with a comfortable income. The husband’s child support obligations will cease in the near future and a cost of living increase on his modest alimony order will not likely have a signifi cant impact on his lifestyle. Judge did not abuse her discretion by failing to order that child support be reduced upon emancipation of the older child who will be emancipated three years before the younger child. Husband’s own proposed judgment contains no provision for automatic adjustment of child support. Judge did not abuse her discretion in awarding the wife 60% of certain marital assets and 80% of the sale proceeds of the marital home. Judge found that the wife did not stand on equal ground with the husband in terms of her ability to earn income and her education. She had been out of the workforce since 1992. In addition, the judge awarded the husband his law practice which was indicated in her rationale regarding the property awarded to the wife.

King v. King, 76 Mass. App. Ct. 1122 (April 5, 2010)

Post divorce the wife fi led an action in the probate and family court to confi rm her right to live in the marital home based on a written postdivorce agreement by the parties. Following trial, the judge ruled in wife’s favor and the husband appealed. Parties were married for 30 years. They were divorced by agreement with the husband represented by counsel and the wife pro se. Under the agreement the marital home which was the only piece of real estate was given entirely to the husband. In exchange, the husband agreed to pay $6,000 in joint credit card debt. The agreement said the wife waived her interest in the house because the husband owned the land prior to the marriage. The agreement was approved by the judge as fair and reasonable. Wife fi led a motion to set aside the division of assets alleging the husband had purchased the property during the marriage and that he had defrauded her into agreeing to give him the house. It was unclear whether the wife’s

motion was ever heard and judgment entered incorporating the separation agreement. Both parties continued to live in the house after the divorce. They later signed a piece of paper that was notarized agreeing that the husband was giving the wife the downstairs apartment for as long as she wanted. Three years later the husband served a notice to quit on the wife and she brought the action in the probate and family court. After a one day trial, the judge found that consideration in the wife’s forbearance of her claim that the separation agreement was fraudulently induced. “Abandonment of a claim that appears well founded, and not frivolous, vexatious, or unlawful, is suffi cient consideration for a contract.” The appeals court agreed with the wife that the parties’ post-divorce agreement regarding the house was free of ambiguity.

Rule 1:28 Decision Case Summaries By Rosanne Klovee, Esq.


have to produce anything until the other fi rm can produce a WISP. I have run into this situation twice so far, the fi rst fi rm produced their WISP certifi cation prior to the hearing on our motion for a protective or-der. The second fi rm chose not press for my client’s documents. So, I cannot yet say how the judges are handling these issues.

Another thing we need to carefully consider is the language used in drafting subpoenas to third par-ties. Keeper of records subpoenas often times con-tain a person’s name plus social security number, bank account number, credit card number or other such identifying information to permit the deponent to search their records and compile the proper docu-ments. Banks and other fi nancial institutions are obligated under Federal law to have privacy policies in place. However, as practitioners we have a duty to our clients to make sure such folks have a privacy policy prior to issuing a KOR subpoena. It is easy enough to go on the websites for various banks and fi nancial organizations and obtain a copy of their privacy policy for your fi le - something I urge every-one to do prior to issuing such a subpoena. Perhaps I am being overly cautious but I would also recom-mend truncating the account numbers referenced in the subpoena so that only the last four digits of the account number are referenced. If the deponent needs more information - they will give you a call.

Do not overlook the obvious - subpoenas are served by a constable or some other process server. We are placing our client’s personal information in the hands of that process server before it reaches the hands of the deponent. Accordingly, you need to get your process server to also sign your third party compliance contract binding them to your WISP.

In order to keep your business running smoothly, careful thought needs to go into just who needs to sign a third party compliance contract so you don’t have to interrupt business and scramble to get signatures at the last minute. Think about who has access to your offi ce space - your IT company, the folks who deliver your offi ce supplies, the company that maintains your copy machine, building main-tenance and security workers, telephone and cable companies, etc. If any of these people are ever un-

accompanied in your space, you need to have them sign a third party compliance contract. Next think about who you employ to assist on cases who, as part of their role, may come into possession of your client’s personal information - stenographers, private investigators, litigation copy companies, messenger services, various experts, and others. All of these people also need to sign a third party compliance contract.

Since we are also protecting employees’ personal information you need to think about what other third parties have access to employee personal informa-tion. What about the accountant who prepares your fi rm’s returns? Or the payroll company your fi rm uses? Does your fi rm have a retirement plan ad-ministrator? How about health insurance and other benefi ts companies? This list could go on depend-ing on your fi rm. Whoever these people are - they all need to sign third party compliance contracts.

While these third party compliance binders are intended to protect your clients’ and employees’ personal information - the reality is they also protect you. Failure to comply with the regulation can result in a fi ne of $5,000. Making sure you get the proper compliance binder is a simple way to avoid an expen-sive sanction.

Finally, proper steps need to be taken when an em-ployee leaves your employ. Common sense says get the keys to your offi ce space back before the employ-ee leaves. But, given the harsh consequences for failure to comply with this regulation, I also recom-mend you err on the side of caution and change all passwords once an employee leaves. Whatever your policy - it now needs to be in writing as part of your WISP.

I want to leave you with one parting thought. Most of us send our clients copies of everything we receive on their case from the other side. What are our ob-ligations to the opposing party when sending copies of documents containing personal information to our clients? Better yet, what is our obligation to our own clients if we know the opposing side is sending cop-ies of documents produced by our clients containing personal information to the opposing client?

201 CMR 17:00 - Is Your Firm in Compliance? By Wendy O. Hickey, Esq.


201 CMR 17:00 Standards For the Protection of Personal Information... 201 CMR 17:00 Standards For the Protection of Personal Information...


Pro Bono Opportunity to Offer Limited Assistance RepresentationBy Amy C. Egloff

One year ago, on May 1, 2009, Limited Assis-tance Representation (LAR)—once a pilot program in Hampden, Norfolk, and Suffolk—was instituted in all divisions of the Probate and Family Court, yet many family law attorneys still are not familiar with the program and its benefi ts.

LAR Basics

LAR affords an attorney the opportunity to repre-sent a litigant for a discreet portion of a domes-tic relations case, usually one involving a court appearance such as a pre-trial conference or a hearing on a motion for temporary orders. Clients may also seek LAR for other aspects of their cas-es including discovery and mediation. Ordinarily, LAR attorneys are compensated for their time, al-though they may agree to a reduced rate or a fl at fee for the LAR case. It is recommended that the attorney and client clearly state the scope of the attorney’s representation in the fee agreement.

At the beginning of an LAR attorney’s representa-tion, she or he fi les a notice of limited appear-ance. After the LAR attorney’s limited represen-tation has concluded (before leaving the court-house if the LAR involved a court appearance), the LAR attorney fi les a notice of withdrawal of limited appearance. No motion to withdraw is necessary, since LAR withdrawals are automati-cally allowed by the court. Both the notice of LAR appearance and notice of LAR withdrawal are available on the Probate and Family Court website at: www.mass.gov/courts/courtsand-judges/courts/probateandfamilycourt/selfhelp.html#limited.

Training

In order to offer LAR to clients, an attorney must fi rst become qualifi ed, a process that begins with

reviewing the Probate and Family Court Limited Assistance Representation Training Manuals (approximately 85 pages) and the recording of the Limited Assistance Training Program (approxi-mately 1.5 hours), both of which are available at: www.screencast.com/users/VLP/folders/LAR Training. Once an attorney has reviewed the required materials she or he must complete the form entitled “Limited Assistance Representation Attorney Statement of Qualifi cation to appear as an LAR Attorney in all Division of the Probate and Family Court,” which is provided with the training packet, and submit it to the Administrative Offi ce of the Probate and Family Court.

Pro Bono LAR Opportunity

After having qualifi ed as an LAR attorney, consid-er volunteering for the Boston Bar Association’s Volunteer Lawyer’s Project (VLP) Courtroom Law-yer for the Day at the Suffolk Probate and Family Court, which operates in conjunction with Senior Partners for Justice. Every Friday, from 9:00 a.m. until 1:00 p.m., volunteers from the BBA’s VLP and from Senior Partners for Justice offer LAR to litigants who have court appearances scheduled that day. Often, in cases where both parties are pro se, a BBA VLP volunteer LAR attorney will represent one litigant and a Senior Partner for Justice volunteer LAR attorney will represent the other. Depending on the status of the litigant’s case, a volunteer LAR attorney may present a motion, represent the litigant at a pretrial con-ference, or even settle a case. Volunteering for the Courtroom Lawyer for the Day program is a great way to try out offering Limited Assistance Representation while participating in a pro bono program. For more information please see: www.vlpnet.org/volunteer/item.718-Courtroom_Law-yer_for_the_Day_in_Suffolk_Probate_Family_Court

201 CMR 17:00 Standards For the Protection of Personal Information...


Book Review: “Sex, Love & Money” by Gerald Nissenbaum, J.D. and John SedgwickBy Theresa B. Ramos

The title alone catches your eye – “Sex, Love & Money”. Why wouldn’t it? When you have sex, love and money as a title to any book – you expect a scandalous and salacious read. How-ever, this is not a work of fi ction. Gerald Nissen-baum, a Boston divorce attorney, has taken his 40+ years of experience and his wealthy clients’ triumphs and tribulations over sex, love and money and written a book about it. “Sex, Love & Money” gives the reader insight (sometimes too much insight) into the divorces of Nissenbaum’s über-rich, no-doubt crazy and sometimes famous clients. Not only does Nissenbaum share some of the most intimate facts of his most provoca-tive cases, he also gives the reader a candid and honest narrative of his personal life, his offi ce life and how he came to practice divorce law. He used to be a criminal lawyer. He repre-sented members of the Winter Hill Gang (before it became “Whitey” Bulger’s gang) in Somerville before transitioning to divorce law. The reason why he transitioned into divorce law was be-cause another lawyer who represented a gang-ster lost his leg when he went to start his car one morning and it blew up. However, before he tran-sitioned over to divorce, Nissenbaum had a talk with the “Mobster” to explain that he would no longer be doing criminal law because he wanted to focus on divorce work, and would never think of insulting the Mobster by representing mem-bers of rival gangs.

Nissenbaum’s book is broken down into three parts: sex, money and the children. Nissenbaum explains that all marriages start with sex, be-come obsessed with money, produce children and ends with sex with someone who is not the spouse. He then draws from his 40+ years of experience and over 8,000 divorce cases he has handled to vividly illustrate each part of his

book. All of his stories are true even though he has changed names, places and other identify-ing information that is protected by the attorney-client privilege.

Nissenbaum’s intended audience is not other divorce lawyers so don’t expect any practice tips – that’s what the BBA CLEs are for. Instead, he wants to tell you about his “sexiest” cases over the years. He tells you about the ones that have earned him the most money or took him the lon-gest to bring to settlement/judgment or the most bizarre behavior he has witnessed by a client’s spouse. In other words, he has written about all the guilty pleasures of human nature that appeals to readers to ensure his book will be an entertaining read. At times, Nissenbaum’s book seems like pure fi ction. As a divorce attorney myself, I feel that nothing ever surprises me any-more. I believe that these events took place and these people existed because how can anyone make this stuff up? This probably holds true for most, if not all divorce attorneys because they have heard it all before or something vaguely similar to the stories in Nissenbaum’s book.

There is no doubt that the other seasoned Boston divorce lawyers out there who have had cases with Nissenbaum will recognize their case and client from Nissenbaum’s book but that shouldn’t matter. Nissenbaum’s book was written to entertain and share with readers his “up-close-and-personal” view of divorce and his career as a divorce lawyer. Nissenbaum’s book is his memoir and nothing more.

Section Leadership 2009-2010Section Co-ChairsSteven Gurdin Sally & Fitch, LLPOne Beacon StreetBoston, MA 02108(617) 542-5542seg@sally-fi tch.com

Frances GiordanoRubin and Rudman LLP 50 Rowes WharfBoston, MA 02110(617) 330-7008 [email protected]

CLERachel B. Biscardi Women’s Bar Foundation27 School StreetBoston, MA 02108(617)973-6664 [email protected]

Jennifer Sevigney Durand Schmidt & Federico PC 10 St. James Avenue, 16th Floor Boston, MA 02116(617) 695-0021jennifer.durand@psfl aw.com

Jocelynne D. Welsh Probate & Family CourtTwo Center PlazaBoston, MA 02108(617) [email protected]

Pro BonoAmy Egloff Witmer, Karp, Warner & Ryan, LLP22 BatterymarchBoston, MA 02109(617) [email protected]

Newsletter Wendy Overbaugh Hickey Nissenbaum Law Offi ces 160 Federal Street, 24th Floor Boston, MA 02110(617) 330-9090 [email protected]

Theresa Ramos Rosenberg, Freedman & Gold-stein 246 Walnut Street, Suite 201Newton, MA 02460(617) [email protected]

Legislation

Kelly Leighton Greater Boston Legal Services 197 Friend StreetBoston, MA 02114(617) 603-1545 [email protected] Brown Bag

Sandra Ellen Lundy Supreme Judicial Court John Adams CourthouseOne Pemberton Square Boston MA 02108(617) [email protected]

Katherine Sonia Nemens Club-house Family Legal Support Project Mental Health Legal Advisors399 Washington Street, 4th FloorBoston, MA 02108(617) [email protected]

MembersKrishna ButaneyAssistant Judicial Case ManagerMiddlesex Probate & Family Court208 Cambridge StreetP.O. Box 410-480East Cambridge, MA [email protected]

Jinanne S. Elder Bowman, Moos, Elder & Noe 222 Third Street, Suite 3220Cambridge, MA 02142(617) [email protected]

John Adams Fiske Healy, Fiske & Richmond 189 Cambridge StCambridge, MA 02141(617) 354-7133jadamsfi [email protected]

Francine GardikasBurns & Levinson LLP 125 Summer StreetBoston, MA 02110(617) 345-3000 [email protected]

20 SPRING 2010

Kathy GarrenStone, Stone & CreemOne Washington Mall, 11th FloorBoston, MA 02108(617) [email protected]

Alexander David Jones Looney & Grossman, LLP101 Arch Street, 9th Floor Boston, MA 02110(617) 951-2800 [email protected]

Ellen S. KiefLaw Offi ce of Ellen S. Kief99 Summer StreetSuite 1600Boston, MA 02110ekief@kiefl aw.com

Gail P. Otis160 Old Derby StreetHingham, MA 02043(781) [email protected]

Linda OuelletteDenner Pellegrino, LLP4 Longfellow Place, 35th FloorBoston, MA 02114(617) [email protected]

Lee PetersonMcCarter & English, LLP265 Franklin StreetBoston, MA 02110(617) [email protected]

Katherine M. PotterSuffolk Probate and Family Court24 New Chardon StreetBoston, MA 02114(617) 788-8300

Joanne E. RomanowCasner & Edwards, LLP303 Congress StreetBoston, MA 02210(617) [email protected]

Gayle Stone-TureskyStone, Stone & CreemOne Washington Mall, 11th FloorBoston, MA 02108(617) [email protected]

Laura Marianne Unfl at Law Offi ce of Laura M. Unfl at Ten Laurel AvenueWellesley, MA 02481(781) 237-4600laura@unfl atlaw.com

Joshua S. TraceyTracey & Associates535 Boylston Street, 8th FloorBoston, MA 02116(617) [email protected]

ARTICLES WANTED

You are all invited and encouraged to contribute an article on any subject of interest. Please contact, Mikalen Howe, [email protected], to pursue this further.