Reba January 2014

Women’s Networking Group Launched

Judge Ordoñez To Address Estate Planning Committee

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news WWW.REBA.NET

JANUARY 2013

THE NEWSPAPER OF THE

REAL ESTATE BAR ASSOCIATION

Vol. 11, No. 1

A publication of The Warren Group

Private property rights vs. constitutional rights SJC to decide on rights to solicit signatures on private property

B Y EDWAR D M . B L O O M

In 2012, Steven Glovsky needed 1,000 signatures in order to be placed on the ballot for a seat on the Governor’s Council. He went to the Roche Brothers supermarket in Westwood and asked

PRESIDENT’S MESSAGE

REBA’s president finds her own path within the association B Y M I C H E L L E T. S I M O N S

REBA, once known as the Massachusetts Conveyancers Association, has been in existence for more than 135 years.

That pedigree was a bit daunting 18 years ago when, as a young MIC H ELLE lawyer, I first joined.

S IM ONS I knew that I must join REBA if I was to practice real estate law. So I joined, paid my dues, began attending twice-yearly conferences, read the conference books, attended to Philip Lapatin’s updates, and then returned to my office and tried to integrate all that I learned into my own practice. Each year, the cycle continued.

Then something changed for me. I attended a discussion of the Title Appraiser Vendor Management Association (TAVMA) legislation on Beacon Hill, and other related unauthorized practice of law issues. This meeting opened my eyes, not just to the enormously helpful practice advice and information that REBA disseminated, but to the commitment of the remarkable individuals who comprise this organization and its leadership. I am now pleased to call these people colleagues and friends. I became deeply involved in REBA, not simply because of the association’s excellent work on behalf of the real estate bar, but because of the people who are committed to and involved with this organization.

REBA consists of many different and diverse members. These include practiSee PRESIDENT, page 2

permission to stand outside the door to collect signatures. The supermarket is a free-standing building on a five-acre site, and the store manager informed Glovsky that the store had a non-solicitation policy. Glovsky brought suit against the store under the Massachusetts Civil Rights

Act and, when the Trial Court dismissed his action, he appealed and the Supreme Judicial Court agreed to hear the case on direct appellate review.

The case of Glovsky v. Roche Bros. Supermarkets, Inc. asks whether an owner’s constitutional private property rights

must give way to an individual’s constitutional right to collect nomination signatures for public office. When the case is argued before the SJC sometime early this year, the SJC will be guided by its own 1983 decision of Batchelder v. Al-

See PRIVATE PROPERTY, page 10

Chapter 40B: Some New Year’s Observations B Y RO B ER T M . RUZ Z O

The New Year is still new enough to make a few predictions about what lies ahead. While others may prognosticate about the future of the economy, the midterm congressional elections, the possibilities for world peace and other minutiae, it appears to be precisely the right time to assess the state of Chapter 40B, the commonwealth’s affordable housing law. So without further delay, let me offer the following, with the aim of revisiting this discussion next January.

A STRENGTHENING ECONOMY As the economy strengthens, increased pressure will be brought to bear on the subsidizing agencies. Not a remarkable proposition, but an important one nonetheless. Chapter 40B repre-

sents an essential tool for producing the housing (both affordable and market rate) the state needs to remain competitive. Prior to the onset of the Great Recession, however, Chapter 40B was

simply being asked to do too much in terms of producing market rate housing.

That distress was keenly felt at the four subsidizing agencies – the Department

See 40B, page 3

Lines between in-house and out-house counsel blurred by court decision JAMES S. BOLAN

Many lawyers serve as in-house counsel to corporations and other entities, a longstanding dual position as employee and inside counsel. Recently, the Massachusetts Supreme Judicial Court JIM BOLAN decided that, upon specific conditions, a law firm may designate one of its own members in-house counsel to advise and represent the firm, including in connection with client-generated complaints, issue or claims.

The benefits of having in-house counsel include ease and convenience of access to advice; lack of direct, out-of-pocket costs (recognizing that every hour spent engaging inside counsel is an hour not spent on a billable event); knowledge of

the real inner workings of the business or the firm; and court approval of the role.

Risks include inherent conflicts of interest; the disadvantage of putting inhouse counsel at potential odds with one’s partners; the expenditure of time to get comprehensive and independent advice; and the possible lack of the “independent” advice to the firm that outside counsel would and should provide. (Clients often say later – “Gee, whose interests were you protecting?” Empowered by the court’s decision, the reply is “Why, the law firm’s.”

At which point, the client grumbles something about oxen being gored.)

While all law students are now required to take an ethics course in law school and then the Multistate Professional Responsibility Exam, few lawyers deal with ethical issues and rules on a daily basis. So, weighing the measure of this case to your particular circumstance may lead to a conclusion that, while some law firms are equipped to designate appropri-

ate in-house counsel to serve in this role, most are not.

ATTORNEY-CLIENT PROTECTIONS There is substantial disagreement within the national ethics bar as to whether the Massachusetts decisions sufficiently insulate the firm, and those acting as inhouse counsel, and whether, despite the court’s ruling, it is still more beneficial to seek outside counsel advice, which will be protected.

The attorney-client privilege applies to confidential communications between a law firm’s in-house counsel and the law firm’s lawyers, even where the communications are intended to defend the law firm from allegations of malpractice made by a current outside client. This holding is limited, in part, because not every attorney in a law firm is its in-house counsel and not See COURT DECISION, page 6

REBAnews

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JANUARY 2014

REBA’S PRESIDENT FINDS HER OWN PATH WITHIN THE ASSOCIATION

CONTINUED FROM PAGE 1

tioners from firms large and small; politicians; industry leaders; and other real estate professionals at all levels of experience. I welcome the opportunity to work with these individuals, who enrich my practice and make me a better lawyer.

REBA has not only kept me informed on the latest developments in our practice area, has also allowed me to greatly expand my professional and collegial network.

Just as a committed group of professionals can move an idea to fruition, so can a single individual. My experience at REBA has demonstrated over the years that that one person, becoming involved and working with this group – in any capacity – can make a difference.

I am honored and humbled to serve as REBA’s president, only the fifth woman in this role since the association’s inception.

As REBA’s fifth woman president, the other current REBA women board members and I expect to expand the next generation of members, colleagues, and leaders. With that objective we have embarked on a new initiative: a Women’s Networking Group of Real Estate Pro-

fessionals. I know this networking group will further enhance our professional relationships. Our goal is to expand REBA membership, not only with additional real estate lawyers, but also real estate brokers, property managers, bank officers, loan officers, mortgage brokers, appraisers, architects, engineers, landscape architects, designers and others.

We want this expanded group to experience the extraordinary breadth of talent and learning that REBA offers, as well as to become the tip of the spear to show lay persons why real estate lawyers are essential to any property transactional, why our unauthorized practice of law mission is critical, and why shared experiences help everyone, rather than pitting non-lawyers against lawyers in a divisive and costly venture.

The foundation of our society is the rule of law, and REBA should expand its membership to include non-lawyer real estate professionals, to bring together all members of our professional community in a shared and beneficial experience.

What better way to meet new colleagues, develop new relationships and form new alliances and friendships, than to create a networking group open to all?

We plan to have networking meetings all around the commonwealth at least four to six times during the year.

These meetings will be open to all REBA members, with the expectation that each member will reach out to their local real estate community to introduce them to this new group – and to REBA. In that spirit, our first event has been scheduled for Tuesday, Jan. 22, 2014, from 5:30 to 7:30 p.m. at the offices of Nutter, McClennen & Fish, and LLP in Boston. We are thrilled to have as our guest speaker the Honorable Suzanne V. Del Vecchio. If you can join us, please reach out to Nicole Cunningham at cunningham@reba.net. We will follow this format at venues around the commonwealth throughout 2014. If you have ideas, suggestions or comments, send me an email at msimons@legalpro. com.

I look forward to meeting many more of you over the next year and hope we will become colleagues and friends. t Michelle Simons, REBA’s 2014 president, is a partner in the Newton firm of Brecher, Wyner, Simons, Fox & Bolan LLP. She can be reached at msimons@legalpro.com.

Women’s Networking Group launched REBA President Michelle Simons has launched a Women’s Networking Group of Real Estate Professionals that will meet four to six times this year in social settings.

Hon. Suzanne V. JUD G E Del Vecchio, former DEL V ECC H I O chief justice of the Trial Court, will be a special guest and offer remarks at the meeting.

Light refreshments will be served.

“We are excited about the launch of this

group, which is open to all,” Simons said.

“We expect to include many real estate professionals including brokers, property managers, bank officers, loan officers and originators, mortgage brokers, appraisers, architects, engineers and more.”

The group’s kickoff reception will be from 5:30 to 7:30 p.m. on Wednesday, Jan. 22, 2014 (snow date Jan. 27) in the Louis D. Brandeis Conference Center at Nutter McClennen & Fish, LLP, Seaport West, 155 Seaport Boulevard, Fifth Floor, in Boston.

To RSVP for this reception,

please contact Nicole Cunningham at cunningham@reba.net. t

WANT TO SEE YOUR NAME IN PRINT? REBA NEWS IS ACCEPTING ARTICLE SUBMISSIONS! IF YOU HAVE WORDS OF WISDOM OR KNOWLEDGE TO SHARE, PLEASE SEND SUBMISSIONS TO EDITOR PETER WITTENBORG AT WITTENBORG@REBA.NET.

50 Congress Street, Suite 600 Boston, Massachusetts 02109-4075

www.reba.net President: Michelle T. Simons msimons@legalpro.com President Elect: Thomas Bhisitkul tbhisitkul@haslaw.com

Immediate Past President: Michael D. MacClary mmacclary@burnslev.com Treasurer: Susan B. LaRose susan@dandllaw.com Clerk: Francis J. Nolan fnolan@harmonlaw.com Executive Director, Editor: Peter Wittenborg wittenborg@reba.net Legislative Counsel: Edward J. Smith ejs@ejsmithrelaw.com Unauthorized Practice of Law Counsel: Douglas W. Salvesen dsalvesen@bizlit.com Managing Editor: Nicole Cunningham cunningham@reba.net Assistant Editor: Andrea M. Morales morales@reba.net MISSION STATEMENT To advance the practice of real estate law by creating and sponsoring professional standards, actively participating in the legislative process, creating educational programs and material, and demonstrating and promoting fair dealing and good fellowship among members of the real estate bar.

MENTORING STATEMENT To promote the improvement of the practice of real estate law, the mentoring of fellow practitioners is the continuing professional responsibility of all REBA members. The officers, directors and committee members are available to respond to membership inquires relative to the Association Title Standards, Practice Standards, Ethical Standards and Forms with the understanding that advice to Associations members is not, of course, a legal option. © 2014 The Real Estate Bar Association for Massachusetts. Materials for March can not be reproduced without permission.

Standard bulk postage paid at Boston MA, 02205. Postmaster: Send address changes to REBA, 50 Congress St., Boston MA, 02109

280 Summer Street, 8th Floor Boston, MA 02210-1131 (800) 356-8805 www.thewarrengroup.com

REBAnews

JANUARY 2014

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CHAPTER 40B: SOME NEW YEAR’S OBSERVATIONS CONTINUED FROM PAGE 1

of Health and Community Development (DHCD), MassHousing, MassDevelopment and the Mass. Housing Partnership (MHP) – that issue site eligibility letters.

Since the last cycle, the Chapter 40B regulations have been compressively rewritten and the front end of the process – the site eligibility letter BOB RUZZO application – has appropriately been made more demanding. The subsidizing agencies have adapted well to this more rigorous approach, but it remains to be seen whether this new reality can withstand the pressures that will come with higher levels of development activity.

Over the past four years, the subsidizing agencies have collectively issued on average approximately 21 project eligibility letters per year. By comparison, MassHousing alone received more than 120 applications for site letters in 2003.

This time around, things may be different. The difficulty in obtaining end loan financing may continue to suppress condominium construction activity, the presence of existing approved Chapter 40R districts may relieve some pressure, and rising interest rates may dampen overall demand.

But if not, watch out.

THE IMPACT OF THE JEPSON DECISION One of the underappreciated strengths of Chapter 40B is its ability to redevelop underutilized sites. Since virtually every community has (at least) one such location, this reason alone may be ample justification for retaining the statute in our land use quiver. Chapter 40B has repeatedly demonstrated its capacity to fill in missing gaps in the local development pattern; however, over the past decade the statute has also made some larger scale rede-

velopments possible. These include transforming a parkand-ride lot in Newton into transit oriented housing and reestablishing an earlier street grid for a rehabilitated public housing development in New Bedford.

Many challenging sites, however, do not lend themselves to a “housing only” solution.

In its 2007 Jepson decision, the Supreme Judicial Court determined that if the underlying site zoning was commercial, a zoning board of appeals could grant dimensional relief for commercial elements within a Chapter 40B housing proposal. While Jepson can only enhance the ability of a developer or a community to redevelop a problem site, some minimal cost certification guidance from DHCD on this topic would be beneficial. In the interim, applicants would be well advised to specifically agree on a cost certification approach with their subsidizing agency before a site letter is issued.

RECENT MUNICIPAL ACTION Among the most prominent of the many regulatory changes made by DHCD in 2008 is the requirement that the subsidizing agencies must now take into account “municipal actions previously taken to meet affordable housing needs” prior to issuing a site eligibility letter. In November 2013, for the third time in three years, MassHousing denied an application for site eligibility based upon a combination of recent municipal action by the host community and poor site design. It will be interesting to see if this trend increases as site letter activity ticks upward and municipalities (hopefully) become more proactive. Sooner or later, probably sooner, a developer will register her displeasure at the denial of an application for a site eligibility letter in court. Talk about an interesting case!

IT’S AN ELECTION YEAR (AGAIN) Given the proliferation of special elections, it seems like it’s always an election year in Massachusetts. This

year, however, the prize will be the corner office.

After the overwhelming defeat of the anti-40B referendum in 2010, and in view of the importance of the statute to housing in Massachusetts generally, it seems implausible to imagine a viable gubernatorial candidate who does not support Chapter 40B. (Whether that remains the case in future races may very well depend upon how the challenge of an increase in Chapter 40B utilization is handled.) Accordingly, the election cycle presents an opportunity for Chapter 40B proponents (rabid and moderate alike) to move discussion of the statute from defense to offense.

One of the particular strengths of Chapter 40B lies in its flexibility. It is, above all other things, a programbased statute. Indeed, much of the “lore” surrounding Chapter 40B (i.e., minimum percentages of affordability, permissible developer fee, and applicable income standards) is in fact not found in the text of the statute. This explains why the affordable housing law accomplishes its goals very differently today than it did in its early days, even though the law has never been substantively amended.

Therefore, any new governor has tremendous, though not unlimited, capacity to tailor the operation of Chapter 40B through program development. And based upon the Supreme Judicial Court’s endorsement of the far-reaching New England Fund program in 2007, chances are excellent that any coherent programmatic approach will be sustained if challenged in court.

So candidates, where do you want to place your policy emphasis? Workforce housing? Regionalism? Transit-oriented development? The possibilities abound; always remember however, that the true test of any policy lies in its implementation. t Bob Ruzzo is a senior counsel at Holland & Knight. He was the chief operating officer and deputy director of MassHousing from 2001 to 2012. He may be reached at robert. ruzzo@hklaw.com.

REBAnews

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JANUARY 2014

COMMENTARY

My Cousin Vinnie’s fee schedule

BY PAUL F. ALPHEN

One of the truly magical elements of the holiday season is the opportunity to get together with my extended family, which provides me with upclose and personal time with a wide variety of PAUL ALPHEN interesting characters, including my cousin Vinnie, the real estate lawyer. While circling the buffet table for the eighth time, he told me his story of paying an online ticket scalper over a grand for an obstructed view seat for Game 6 of the World Series, and I bragged about taking the whole family with face value tickets. He got visibly upset, and I, attempting to change the subject, made the mistake (again) of asking Vin about his law practice.

“Paulie, it’s supposed to get easier as you get older; but things only seem to get stranger every day. The only good thing that has happened recently is having the SJC force us to enter into fee agreements before we perform services. My fee agree-

ment has scared away a few fakers, and it’s kinda nice to have the fee agreement in place once I start work. I still have to finetune my fee agreement for residential deals.

I’ll send you my working draft.”

Before midnight he sent it to me in an email. Here is Vinnie’s fee schedule: Review a standard form P&S and negotiate revisions with another REBA member: $500*

“Paulie, it’s supposed to get easier as you get older; but things only seem to get stranger every day.”

— Cousin Vinnie *There may be additional fees for each of the following: ◆ ◆ Reviewing a P&S that somebody made up. ◆ ◆ Negotiations with the seller’s friend, corporate counsel or DUI attorney.

◆ ◆ Negotiations

with the seller’s son or daughter who attended some law school. ◆ ◆ Negotiations regarding ridiculous minutia that should be handled between the parties and the brokers; i.e the selling price of the snow blower. ◆ ◆ Any “short sale.” ◆ ◆ Spending the better part of a day in front of my computer doing nothing but reading and responding to emails regarding your transaction. ◆ ◆ Seeing a client for the first time equipped with a signed P&S with a closing date that has passed. ◆ ◆ Post-P&S questions regarding the various online lenders you are toying with. ◆ ◆ Waiting in front of my computer all day on a weekend to see if you get a commitment letter and preparing and sending a notice of termination/request for extension of the mortgage contingency period. ◆ ◆ Multiple explanations to the seller’s counsel, both brokers and yourself, about the title issues and why they need to be solved prior to the closing. ◆ ◆ Being asked to close the loan without

the title issues being resolved.

◆ ◆ Any condominium transaction. ◆ ◆ Extensive re-drafting of the

seller’s deed and/or 6(d) Certificate. ◆ ◆ Curing title problems that the seller refuses to address. ◆ ◆ Performing a closing twice, once with the seller and once with the buyer. ◆ ◆ Preparing the closing package more than once.

EXCEPTION: None of the above applies to immediate family or friends thereof, or to aunts, uncles, cousins, nieces, nephews, or to any of their significant others or close friends, or to neighbors, friends, friends of my immediate family, repeat clients, new clients or to brokers and their families. t REBA’s president in 2008, Paul Alphen currently chairs the association’s long-term planning committee. A frequent and welcome contributor to these pages, he is a partner in Balas, Alphen and Santos, P.C., where he concentrates in commercial and residential real estate development and land use regulation. Paul can be reached at paul@lawbas.com.

Traps for the wary

Conveyancers struggle to identify, defend against new dangers

BY JOEL A. STEIN

Over the next two issues of REBA News, I will be reviewing issues that have resulted in claims against conveyancers and title insurance companies.

I hesitate to repeat the frequently used JOEL STEI N phrase “traps for the unwary,” as “unwary” is defined as “not cautious; not aware of possible dangers or problems.” I believe most conveyancers are extremely wary of possible danger. That danger, however, frequently is dressed differently than it was in the past and is not easily recognizable.

M.G.L. C. 184, §35 The form of Trustee’s Certificate (REBA Form 35 and Title Standard 68) has become a popular tool for conveyancers who do not want to record a trust agreement. Note, however, that the statute requires that the “certificate must be sworn to or stated to be executed under the penalties of perjury.” A properly executed trustee’s certificate will allow the unrecorded trust to fall outside the parameters of the Indefinite Reference Statute, M.G.L. c. 184, §25. It is clear that if the certificate is not recorded until the deed out, the reference to the trust in the initial deed will result in an indefinite reference, meaning that any liens against the trustee, individually, will attach. The question as to whether a trustee’s certifi-

cate lacking a jurat has the same result is unknown. Clearly, a certificate pursuant to M.G.L. c. 184, §35 without a jurat does not meet the provisions of the statute. To protect your clients, be certain that the certificates you record are properly executed.

EXECUTING AN INSTRUMENT UNDER A POWER OF ATTORNEY A recent decision in the United States Bankruptcy Appellate Panel for the First Circuit has caused “notary hysteria” in some parts of the conveyancing community. (A copy of the decision in the case, BAP No. MS 13-012, Steven Weiss, Chapter 7 Trustee, Plaintiff-Appellant v. Wells Fargo Bank, N.A., Defendant-Appellee, is available on REBA’s website, www.reba. net.)

After a review of the decision by members of the REBA board, the belief is that the court got it right, and the decision should have no impact on any instrument that is not executed under power of attorney. In the opinion of the REBA board, the case continues to support the use of the executive order notary format as compliant with the statutory requirement for acknowledgments.

In this case, the mortgagors executed a mortgage to Wells Fargo Bank pursuant to a power of attorney given to a representative of the lender, LSI. The trustee maintained that the acknowledgment suffered from “three fatal flaws: (1) the use of the phrase ‘personally appeared,’ when in fact it is undisputed the debtors

did not appear; (2) the failure to specify in the appropriate blank space the method by which the notary identified the signer (or signers) of the mortgage; and (3) the failure to indicate whose free act and deed the notary was verifying.”

The court cited the seminal acknowledgment case in Massachusetts, McOuatt v. McOuatt, 69 N.E.2d 806, 810 (Mass. 1946): “no particular words are necessary as long as they amount to an admission that [the grantor] has voluntarily and freely executed the instrument.”

The issue is not whether the language in the executive order format is sufficient to comply with the statutory requirement (which it clearly is), but whether it was clear that the mortgage was executed as the voluntary act of the mortgagors, rather than the voluntary act of their attorney in fact.

The court states: “We agree with the trustee’s third argument, however, namely that the foregoing language fails to unequivocally express that the execution of the mortgage was the free act and deed of the principals, i.e., the debtors, and that this flaw is, indeed, fatal. Here, the preprinted form utilized by the notary combined with her failure to attend to the blank space and the inapplicable verbiage creates ambiguity concerning whether the execution of the mortgage was the voluntary act of the debtors. Al-

though the acknowledgment contains a recitation that the mortgage was signed “voluntarily for its stated purpose,” we are left to speculate whether the voluntariness relates to the principals (the debtors) or to the attorney-in-fact Obringer).

For the proper way to execute and acknowledge a deed under power of attorney, see Land Court Guideline (2009) 15, which is available on REBA’s website. t Joel Stein serves as co-chair of REBA’s title insurance and national affairs committees.

He can be reached at jstein@steintitle.com.

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JANUARY 2014

REBAnews

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COMMENTARY

Condo owners pay millions in unnecessary coverage B Y N E I L D. G O L D E N

You may have noticed in recent condominium mortgage transactions something called an HO6: a requirement from the lender that the borrower obtain and NEIL GOLDEN pay for a unit owner’s policy to cover the entire interior value of the unit. What changed? Nothing, really. In fact, FNMA (note: I will refer to FNMA exclusively in this article, as FHA and FHLMC have almost identical insurance requirements) actually thought that it was liberalizing its insurance requirements. What it created instead was a mess which is costing home owners collectively millions of dollars in wasted premiums.

FNMA first started to approve condominium projects in Massachusetts around 1980. I represented the first developer in Massachusetts to submit a project to FNMA for approval and I had the “distinction” (or, as I prefer to think of it, great misfortune) of having to draft FNMA compliant documents from scratch. Someone had to do it. All the federal agencies have had a fairly consistent set of insurance guidelines which have varied very little over the years. You can find FNMA insurance requirements in Part B Subpart 7 Chapter 3 of its selling guidelines. In brief, a summary of the requirements are as follows: The project must be insured at 100 percent of the insurable replacement cost of the improvements. Preferably, and if available, there should be a guaranteed replacement cost endorsement. The difference being that with the guaranteed endorsement, the insurer is on the hook regardless of the cost to restore the property while a simple replacement cost policy limits the coverage to the amount of insurance. The result is, with a simple replacement cost policy, that even though a condominium may have attempted through their insurance agent to insure at full replacement cost, if it turns out they guessed wrong there will not be sufficient insurance proceeds to restore the building.

The deductible may be no higher than 5 percent of the face of the amount of the policy. Bear in mind that the agencies now require the amount of the deductible to be included in the budget.

If the trustees believe they are saving money with a higher deductible this will in fact be offset by the requirement of setting aside cash for the full amount of the deductible.

Special endorsements: ◆ ◆ Inflation guard endorsement (self explanatory), if available. ◆ ◆ Building ordinance or law endorsements. This covers losses due to the operation of building laws regarding, demolition costs, and increased costs of construction due to new building laws which were not in effect when the building was originally constructed ◆ ◆ Steam boiler and machinery coverage endorsement when the building has central heating or cooling. This is a liability endorsement for accidents.

Coverage must be in the amount of the lesser of $2 million or the insurable value of the building.

◆ ◆ Liability coverage. ◆ ◆ Other requirements include: ◆ ◆ A requirement that the policy recog-

nize the condominium association as trustee, i.e., the entity to receive and manage insurance proceeds. ◆ ◆ A waiver of subrogation against unit owners, so that if an individual owner is responsible for the casualty the carrier cannot recover against that unit owner. ◆ ◆ Fidelity insurance ,which is distinct from officers and directors liability coverage, which protects trustees in case they are sued for negligence or omission. Curiously, while officers and directors liability coverage is very important, it is not required by the agencies. Earthquake and terrorism insurance are also not required. ◆ ◆ Finally, the insurance must be primary, meaning that even if a unit owner has other insurance that covers the same loss, the master carrier must pay.

FNMA has always – always – required the interior of units (i.e., all part of the unit which would be considered real estate including cabinets, bathroom fixtures, light fixtures, finished flooring and other built-ins) to be insured. Up until 2007 the master policy had to cover these items. FNMA, bowing to pressure from states that do not allow for, or actually prevent, projects to have this type of coverage changed course and began to allow for “bare walls” coverage in the master policy as long as there was “walls in coverage” in each owner’s HO-6 policy in the minimum amount of 20 percent of the value of the unit.

(See FNMA Announcement 07-18, dated Nov. 15, 2007.) A word of warning here: “walls in coverage” and “bare walls “ coverage are not recognized in the insurance industry and really have no legal meaning.

It has been my experience that it had been rare for any lender to turn down a loan based on whether a policy was “walls in” or, for that matter, to turn down a loan for any other insurance coverage issue before 2007. But from 2007 onward, FNMA was telling lenders that they had to determine whether the master policy was “walls in” or not. This required the lenders to both read and understand the insurance provisions in the condominium bylaws, which they did not have the expertise to do.

There are various broad alternatives that the insurance bylaws can require

for interior unit coverage, and master policies are generally written so that the building definition in the policy references the coverage required in the bylaws. The most inclusive is unequivocal language that all interior portions of the unit are to be insured in the master policy. The opposite extreme would be only common elements are insured and no part of the unit is insured.

Hybrids would include either coverage for those parts of the unit that the developer constructed at the creation of the condominium or a second hybrid which would cover the replacement of original specifications but no new improvements. I believe that these hybrids should be avoided, as when the condominium matures it becomes difficult to know what was originally built and what was a subsequent improvement.

I am happy to say that in my 35 years of practicing condominium law I find that the great majority of bylaws require broad interior unit coverage on the master policy. The bad news – and it is indeed bad – is that since FNMA has left the review of coverage up to the lenders, and the lender s do not have the expertise or even desire to review condominium bylaws, lenders invariably will require interior coverage on the unit owner’s policy even though the master policy already covers the interior. I was told by one bank executive that no one will ever lose their job because they de-

nied a loan, but a person will lose their job if they approve a loan and the bank has to buy the loan back. The lenders are risk adverse by necessity. This has resulted in unit owners paying collectively millions of dollars for unnecessary coverage and those owners will never see a dime of it. Why? Remember that FNMA requires the master policy to be primary. That means that if there is damage to the interior of the unit and the master policy covers it, the master policy must pay the claim. As a result, the agents and insurance companies issuing these interior coverage policies are laughing all the way to the bank. Imagine being able to collect premiums and never having to pay a claim.

I believe that an attorney representing a buyer should understand the insurance sections of the condominium bylaws and make sure that the client is not forced to needlessly pay additional premiums. I also believe that FNMA must take a closer look to make sure that this double coverage is eliminated. If need be, government agencies will have to get involved. It is difficult enough in this environment to qualify for a loan. If unnecessary insurance premiums are added in to the cost of owning a home it will have an adverse affect on borrowers. t A longstanding member of REBA’s title standards committee, Neil Golden is a partner in the firm of Gilmartin, Magence & Ross, LLP. Neil can be contacted by email at ngolden@ gmlaw-llp.com.

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PAGE 6

JANUARY 2014

LINES BETWEEN IN-HOUSE AND OUT-HOUSE COUNSEL BLURRED BY COURT DECISION CONTINUED FROM PAGE 1

every communication within the firm is privileged. Consequently, for the privilege to apply, several conditions must be met: First, the law firm must designate, either formally or informally, an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs.

Second, where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.

Third, the time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm.

Fourth, as with all attorney-client communications, they must be made in confidence and kept confidential.

Fifth, size matters. For the designation of an attorney or attorneys within the firm to represent the firm as in-house or ethics counsel, so that there is an attorney-client relationship between the in-house counsel and the firm when the consultation occurs, large firms regularly employ loss prevention counsel, conflicts counsel and partners who serve as ethics counsel and can, if sufficiently experienced, move into an inhouse role. But most law firms do not have the size, ability or expertise to employ a member in that role. Given the opening by the court, care must be taken when placing someone in that position, not just because of the difficulty of the role and the substantial experience that in-house counsel must have, but because of other conditions that are equally difficult to satisfy.

Sixth, size still matters. According to the court’s decision, “where a current outside client has threatened litigation against the law firm, the in-house counsel must not have performed any work on the particular client matter at issue or a substantially related matter.” The court’s decision is, in essence, an analog to an internal “screen” (what used to be called a “Chinese wall”).

The larger the firm, the more segmented it is and can be, the more floors and offices exist to separate counsel and, thus, the easier it is to screen off conflicted members from non-conflicted members simply by virtue of size and space, computer access regimens and other restrictive access protocols. Most firms do not have the size or

capacity to wall off its members, nor is it possible to do so in all but the very largest firms (and even then, disqualification motions despite screens have been successful).

Seventh, size still really matters! The time spent by the attorneys in these communications with in-house counsel may not be billed or charged to any outside client. Because the law firm is the client with respect to such communications, their cost must be borne by the law firm. This is a substantially a business decision and large firms can more readily absorb or manage the indirect costs of establishing and maintaining what is effectively a severable “inside law firm.” One real cost of placing one or more lawyers in the role of in-house counsel is that they run the risk of being conflicted out whenever an issue arises, because the designated counsel has to run the risk of proving that she/he had not performed any work on the particular client matter at issue or a substantially related matter. Thus, counsel would be justifiably hesitant to advise the firm on any matter related to that client for fear of the conflict.

While one of the undecided issues is when in-house counsel is consulted before the client has threatened litigation, observant counsel is aware that smoke is starting to billow out and flames may someday follow. In that case, one of the risks is that the client will press to see all of the communications prior to the actual “threat of litigation” and the fight will be over whether they were or should be deemed to be “in contemplation” of litigation and, thus, also privileged.

UNINTENDED CONSEQUENCES As with all attorney-client communications, they must be made in confidence and kept confidential. Thus, the age-old conundrum raises its head as to expectations and “unintended consequences” of the relationships within the firm. The client is the law firm. The partners who consult in-house counsel are doing so as the firm’s lawyer. The issue is not whether communications with in-house counsel are privileged – they are. But the facts disclosed are not privileged as they exist outside of the communication. This push and pull of interests becomes heightened if blame starts to be pushed to a responsible

partner. Inside counsel is the firm’s lawyer, and not the lawyer for any individual partner or associate. Inside counsel is not an ombudsperson. How are the lawyers who relied on the close relationships in the firm going to react in such circumstance? Do they need to be advised to seek separate and independent counsel to advise them? if so, when? Does all of this start to sound like an internal investigation as opposed to an internal relationship? t Jim Bolan is a partner with the Newton law firm of Brecher, Wyner, Simons, Fox & Bolan, LLP, and represents and advises lawyers and law firms in ethics, bar discipline and malpractice matters. He can be reached at jbolan@legalpro.com.

Points to ponder Keep the roles separate. One is either “one of the lawyers in the firm” or “in-house counsel to the firm.” Remember that the “client” is the law firm, and not the individual attorneys in the firm, so there is no detrimental reliance or expectation that legal advice is for the benefit of other than the firm.

Keep separate note pads. The in-house counsel should have a set of note pads that say “Personal and Confidential – Attorney-Client Privileged” on the top of each set of notes, memos, emails and letters.

Segregate electronic communications within the firm. Can you set up a separate privileged database or computer?

If you send out an email to the lawyer seeking advice and it is in the server with access to all, how to you denote its privileged status?

Recording time. How do you record the time everyone spends on the advice of counsel communications? Do you merge it with everything else? Do you not keep a record at all?

Probate Court Chief Justice Ordoñez to address Estate Planning Committee JUDGE ORDOÑEZ

Judge Angela M. Ordoñez, newly appointed chief justice of the Probate and Family Court, will be a guest of REBA’s Estate Planning, Trusts and Estate Administration Committee at a luncheon meeting on Feb. 20, 2014, at a venue to be

announced. Ordoñez was appointed to a five-year term as chief justice last June.

Ordoñez, the state’s first Hispanic chief justice, was appointed as a judge to the Probate & Family Court in 2000, after seven years as an assistant register of probate in Suffolk County and three years as an attorney at Greater Boston Legal Services. She was appointed the first justice of Norfolk County in 2011 and had previously served as first justice of Nantucket County. In

2010, she was named a Distinguished Jurist by the Massachusetts Association of Women Lawyers. In 2001, she received the Las Primeras Award from the Massachusetts Association of Hispanic Attorneys.

Ordoñez’s many community initiatives include the 2009 creation of, and continued ongoing active participation in, the Massachusetts Bar Association’s Tiered Community Mentoring Program. When serving Nantucket County, she created the Com-

munity Court Program and introduced a Lawyer for the Day Program. Ordoñez received her law degree and a bachelor’s degree in criminal justice from Northeastern University.

The Probate and Family Court Department comprises 14 divisions with 51 authorized judicial positions across the state.

To register for the luncheon, REBA members should contact Nicole Cunningham at cunningham@reba.net. t

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JANUARY 2014

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TRANSCENDENTAL LAWYERING

To boldly go where no lawyer has gone before: legal ethics and social networking B Y JA M E S S. BO L A N

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Google, YouTube, Facebook, Linked-In, Plaxo, Second Life, email, social networks, chat rooms, forums, bulletin boards, listservs, newsgroups and virtual reality sites; these are the forms JI M BO LA N of 21st century communications among peers, third parties, clients and potential clients. Lawyers are using the web in exponential measure, but such communication does not change a lawyer’s duties and responsibilities under real world ethics rules. Henry David Thoreau, meet Dick Tracy. Dick Tracy, meet Philip Rosedale.

Under the Massachusetts Rules of Professional Conduct, lawyers must abide by ethics rules where they are licensed, where they have offices, and where they direct communications, regardless of where the conduct occurs. A lawyer not admitted in Massachusetts is nonetheless subject to the disciplinary authority of this and the lawyer’s home jurisdiction if the lawyer provides any legal services here. Providing legal services in a jurisdiction where one is not admitted can result in unauthorized practice of law (UPL) issues.

How does one know where the person online is located, or even how old they are?

The possibility that one could engage in unauthorized practice of law when communicating in the ether is real. Protection against UPL should include disclaimers in online communications as to one’s licensure and geographic limitation on practice.

Do not take on a relationship in a jurisdiction where one is not admitted.

One could, by communicating in cyberspace, unintentionally create an attorney-client relationship. In 2007, the MBA Ethics Committee issued an opinion (2007-01) that, in the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence even if the lawyer declines the representation.

Communication in cyberspace is subject to bar regulation in many states. ABA Model Rule 7.2 was amended to include internet advertising. See, Massachusetts Rule of Professional Conduct 7.2(a) that includes public media or written nonsolicitation communication. Advertising rules may apply even if the site is a nonconfidential chat room, thus rendering a lawyer not only subject to disciplinary rules, but risking confidentiality. While websites/pages constitute advertising, is the same true for virtual world or MySpace pages? Are these activities more akin to solicitation than advertising?

While websites constitute advertising, no rules expressly state that online offices in “virtual” communities do. In virtual cyberspace, the level of interaction surpasses chat rooms. Some state ethics committees (California and Arizona) have conditionally blessed communication with prospective clients through real-time electronic contact. Others (Michigan, West Virginia, Virginia and Utah) have opined that inperson solicitation rules apply to interactive communications. At least one state (Florida) has decided that a lawyer may not solicit prospective clients through real-time communications. Rule 7.3 of the Massachusetts Rules of Professional Conduct precludes personal communication by electronic device “or otherwise.”

If your network page contains comments from clients or colleagues about how fabulous you are (hold the applause!), you may run afoul of testimonial prohibitions in some states. Massachusetts does not expressly prohibit testimonials, but California, New York and others do. And, the Constitution notwithstanding, many states (Kentucky, New Jersey, Florida and Nevada, for example, but not Massachusetts) still have rules requiring filing and pre-screening of ads. Some states (New York) still require labeling of “attorney advertising,” which is applicable to Internet activity. Finally, mandatory disclaimers are required in some states.

A number of states are now insisting that social websites or video sharing sites must comply with advertising rules. No See SOCIAL MEDIA, page 10

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REBAnews

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PAGE 9

COMMENTARY

The most important closing of my life B Y PAU L F. A L P H E N

I recently read that the average American moves 14 times in a lifetime.

My mother lived in her house in Wayland for 46 years. I went to the closing on her house today and a PAUL ALPH EN nice young couple with young kids will now begin to create their own collection of memories within. A lot happens in 46 years. We have memories of 46 Christmases, countless birthdays, plus Mother’s Days, Father’s Days, graduation celebrations and all the other important family events that naturally gravitate to the home of the matriarch and patriarch of the family. You could not calculate the number of meals served, or the number of times I mowed the lawn.

We went from coloring books and train sets to automobiles and universities. We learned how to barbeque chicken and broil haddock. It is where I tormented my sisters. It is where I painted a house for the first and last time in my life. We also learned how quickly the fire department can arrive when summoned, and how the neighbors can report on the parties that occurred when our parents were away.

The house was more than a home. It was the office of our parents’ insurance business. It was a function hall, when called upon to be the site of my sisters’ wedding receptions and my rehearsal

dinner. It was the headquarters for numerous political campaigns. It was a police substation when my buddies in the department would stop by to eat at all hours of the day and night. It was a garage, where Stevie, Dougie, Jeff and I graduated from oil changes to racing engines armed with nothing more than a Chilton’s Manual and some Craftsmen tools. It was a boat yard. It was an all-day diner. It was our hangout.

We made lifelong friends in the neighborhood. We made lifelong friends in the town. The house is an indelible part of our personalities.

It was the place where each of us introduced our mother to our future spouses. It was where we received neighbors, relatives and friends after our dad died in 1973. It was where our children played with their cousins, and where our kids stayed when it was time for their parents to have a short vacation. The house had been the center of our universe, but we naturally moved away to start our own lives and families, always returning for important events or for just dinner with Mom. It was where we all gathered around the kitchen table last year to share the prognosis that the medical oncologist had explained to my mother and I earlier in the day. It was where I told my sisters than our mother would be gone in a few months. The house again became the center of our universe, as we maintained a constant vigil and sustained the spirits of Mom and one another.

A home is more than lumber and plumbing. It is more than the colloquial “American Dream.” It is more than a

mortgage application, an appraisal and a deed. A home is a gathering place. It is a safe place where you can laugh and you can cry. You can be alone or with a gang.

You can fend off an illness, you can rejoice in accomplishments, you can teach your children everything you know. It is a playground. It is a school. It is a restaurant. It is an inn. It is a hospital.

From my key ring I removed the house key that I had carried since I was 11 years old, handed it to the young couple and I wished them well. I told them that their kids will love the playroom and the lake across the street. I went out to my car and had to sit and wait a few minutes for my eyes to clear.

Then I returned a call from my eldest son, who had left a message about an offer he had made to purchase his

first home. It occurred to me that I had a front-row seat to witness the circle of life.

In the aftermath of the mortgage crisis and the ongoing foreclosure debacles, do not let the bad publicity associated with abuses in the mortgage market distract us from the true value of homeownership. Homeownership is priceless. t REBA’s president in 2008, Paul Alphen currently chairs the association’s long-term planning committee. A frequent and welcome contributor to these pages, he is a partner in Balas, Alphen and Santos, P.C., where he concentrates in commercial and residential real estate development and land use regulation. Paul can be reached at paul@lawbas.com.

MassDEP’s proposed regulatory reform revisions B Y G REG O R I . M C GR E GO R

The stated purpose of the pending MassDEP Regulatory Reform Initiative is to streamline the permitting process and maintain MassDEP’s high standards of environmental protecGREG tion. Following a reMCG R EG O R view over two years, all MassDEP bureaus proposed changes to take effect soon, if not already.

The ideas are to eliminate duplicative approvals and consolidate others; retain public process and appeals; create incentives for better environmental outcomes; provide alternative oversight methods and tools; streamline permitting mechanisms; and simplify for general understanding.

WASTEWATER, SEPTAGE AND WATER QUALITY STANDARDS These changes create a presumptive approval process for renewals of Type I suitability approvals issued for the land application of wastewater sludge, and permit longer terms for all suitability approvals; expand an exemption from the certified operator requirements for small scale treatment (neutralization) typically performed at small labs, schools, universities and biotechnology businesses. When treating less than 100 gallons per day, a

certified operator will not be required.

There are site specific water quality standards for copper (12 segments) and zinc (one segment) added to the surface water quality standards.

SEPTIC SYSTEMS, SEWER CONNECTIONS, AND INNOVATIVE TECHNOLOGIES MassDEP proposes to streamline Title 5 reviews by eliminating duplicative approvals by MassDEP of certain on-site wastewater and disposal systems when local boards of health, referred to as local approving authorities, also issue the same approvals; and authorizing MassDEP to contract out to third parties the evaluation of innovative and alternative on-site wastewater treatment systems.

MassDEP proposes to eliminate the requirement for its involvement in determinations whether facilities asserted to be in separate ownership are in fact a single facility (310 CMR 15.011). MassDEP will continue to provide local boards of health with technical assistance on complex projects. Additionally, in cases involving sensitive resources or unusually complex projects, 310 CMR 15.003(2) (c) provides MassDEP with authority to intervene in the local permitting process.

INNOVATIVE AND ALTERNATIVE TECHNOLOGIES MassDEP will maintain final approval authority on all innovative tech-

References WASTEWATER, SEPTAGE AND WATER QUALITY STANDARDS Final recommendations available at: www.mass.gov/eea/agencies/massdep/ about/programs/massdep-regulatoryreform-initiative.html www.mass.gov/eea/agencies/massdep/ water/regulations/314-cmr-4-00-masssurface-water-quality-standards.html SUPERFUND OIL AND HAZARDOUS MATERIALS For more information, see MassDEP’s blog: mcpregreform.wordpress.com.

nology systems, but utilizing a third party agent for on-site wastewater treatment technologies. MassDEP will continue to set standards and provide oversight in the review of new wastewater treatment technology proposals, and will oversee the work of the authorized agent. MassDEP will develop an auditing protocol to ensure effective results are demonstrated in the field.

The approval of on-site installation and use of innovative alternative technologies will remain unchanged. Local boards of health will approve most systems; MassDEP and the local board of health will approve piloted systems.

ASBESTOS STANDARDS AND PROCEDURES For more information, see MassDEP’s website: http://www.mass.gov/eea/ agencies/massdep/service/regulations/ proposed-and-recently-promulgatedregulations-.html#2 LANDFILLS, TRANSFER STATIONS. AND OTHER SOLID WASTE FACILITIES For more information, see MassDEP’s website: http://www.mass.gov/eea/ agencies/massdep/service/regulations/ proposed-and-recently-promulgatedregulations-.html#5

PERMIT PROCEDURES These regulatory revisions will harmonize the public notice requirements for state surface water discharge permits with EPA’s procedures for issuing National Pollutant Discharge Elimination (NPDES) permits, in response to a request for these changes by EPA. The revisions will eliminate public notice in newspapers for other draft state discharge permits (groundwater, reclaimed water, and sewer connection and extension permits), relying instead on notice See MASSDEP, page 11

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JANUARY 2014

PRIVATE PROPERTY RIGHTS VS. CONSTITUTIONAL RIGHTS CONTINUED FROM PAGE 1

lied Stores Int’l, Inc., as well as by the United States Supreme Court’s 1980 decision in Pruneyard Shopping Center v. Robins.

In both those cases, the constitutional rights of the individuals distributing hand bills and soliciting signatures were deemed to supersede the private property rights of the shopping ED B LO O M mall owners on whose properties the activities occurred. Both of those cases, however, involved large shopping center malls containing 75 to 100 stores, on massive acreage, that are designed to lure a very large number of people not just to shop, but also to socialize and congregate in a “congenial environment … of numerous amenities,” recreating in effect a traditional “downtown.” In Batchelder, the shopping center in question was the Northshore Mall, situated on 84 acres with nearly 100 stores, extensive common areas and weekly special events that invited the public to gather and linger on the premises so as to constitute the functional equivalent of a public space. In fact, the Northshore Mall was said to draw 175,000 to 200,000 individuals per week at the time of the SJC’s decision, which works out to be 25,000 to 28,500 people per day, whereas the entire present population of Westwood, where the Roche Brothers supermarket is located, is only about 14,000.

So the question before the SJC is whether the careful balancing of private property rights with the state’s Declaration of Rights should also be applied to any retail store that invites in the public, even if the retail store stands by itself and contains a mere five acres, most of which is dedicated to parking for the retail customers.

I would submit that the holdings and rationale behind the Pruneyard and Batchelder decisions should not

and cannot be applied to the Roche Brothers supermarket in Westwood or to any other small retailer or strip shopping mall that may contain anywhere from one to 10 stores. To do so would severely impinge on the constitutional property rights of landowners, who should have the absolute right to govern and control the nature and scope of activities that may occur on their property. The fundamental basis of both the Pruneyard and Batchelder holdings is that these large shopping centers and their management encourage the public not merely to shop, but to visit and congregate in large numbers, including for social, charitable, civic and entertainment purposes other than mere shopping, and this informal dedication to the public of these common areas causes them to function as an actual downtown or public meeting place. In such an environment, one can understand why the courts would be reluctant to prevent individuals from exercising their constitutional rights in a public meeting area to distribute materials and seek signatures for various causes. Unlike these large malls, however, retail supermarkets like Roche Brothers in Westwood and other small shopping centers use their common areas solely in a functional manner to support the public in shopping in the various retail stores.

If it was important for Glovsky to collect nomination signatures for the Governor’s Council in a public place, he could have done so at the Legacy Mall in Dedham (74 stores), the Emerald Square Mall in North Attleboro (over 140 stores), the Natick Mall in Natick (200 stores), the South Shore Plaza in Braintree (over 180 stores) or the Wrentham Village Premium Outlets in Wrentham (170 stores), all of which are in the district of the Governor’s Council seat that Glovsky was seeking and all of which would certainly be governed by the holding of Batchelder.

The retail industry awaits the SJC’s decision, but any holding which supports Glovsky’s position will clearly erode private property rights and create a new paradigm

for how retail stores must accommodate the public’s use of their properties. t Ed Bloom is partner in the real estate department at Sherin and Logden, and past president of REBA. He can be reached at embloom@sherin.com.

TO BOLDLY GO WHERE NO LAWYER HAS GONE BEFORE: LEGAL ETHICS AND SOCIAL NETWORKING CONTINUED FROM PAGE 8

matter what, one must ensure that what you say in cyberspace is true and not misleading.

SEPARATION OF FIRM AND TWEET

Keep social network sites and posts separate from your law firm websites.

Twitter is no different from the conversation in the courthouse elevator. Attorneys need to make sure that when they post on a blog or on Twitter that they aren’t revealing any attorney-client confidences. Your tweet about a case could disclose information that you would not otherwise think is risky, but the ease and familiarity of use in a society where the pressure is to move fast or die is inherently risky.

Be careful who you give access to in your network.

The rule was always, if you don’t mind seeing what you write or say on the front page of the Herald, then fire away!

Facebook and LinkedIn and other sites allow anyone to peruse fellow members’ networks and connections.

Letting someone into your network means your data can be mined. That may be fine. But, not if it contains information about clients or contacts that you do not want someone else to use or misuse.

Notwithstanding First Amendment protections, one can imagine a bar complaint filed by an “aggrieved” person for statements made by a lawyer in a blog, a listserv, a chat room or a virtual world. A missive in cyberspace belies the discretion borne of patience found in old-fashioned letters. Note that lawyers are subject to regulation for conduct occurring in one’s private, as well as professional, life.

VIRTUAL WORLD RIGHTS AND DUTIES Second Life is a virtual online community, in which “residents” are represented by avatars that can communicate, socialize, buy, sell, barter and provide services.

Virtual (and real) law firms “exist” in such worlds. Some lawyers are using Second Life to recruit real-world cli-

ents. By chatting, advertising and participating in virtual activities, lawyers are looking for potential clients in this alternative medium. Advertisement or solicitation will generate real world oversight. In one instance, lawyers used social networking sites to gain information to defend a criminal client. They then posted a story online explaining how they used social networking sites with success, thus running the risk of advertising or other violations in some states.

Some state bar associations believe that virtual activity that is “sufficiently game-like” might avoid bar scrutiny even if it generates real work. Some bar officials have stated, informally, that regulation of such “game-like” activity in a virtual environment might not even be worth undertaking.

But, misconduct even within a virtual site runs the

risk of bar regulation, as well as disgorgement of illgained fees, civil exposure and certain potential criminal exposure (UPL, for example). Non game-like activity in cyberspace is increasingly attracting the attention of real world regulators and prosecutors. Lawyer complaints won’t be far behind!

The risks and rewards in cyberspace parallel conventional world activity. “Boldly go” where lawyers have not gone before, but look before you leap! t Jim Bolan is a partner with Brecher, Wyner, Simons, Fox & Bolan, LLP, with principal offices in Newton, and offices on Cape Cod and the North Shore. He represents lawyers and law firms in Board of Bar Overseers and malpractice matters, partnership breakups, departures and law firm litigation. Jim can be contacted at jbolan@legalpro.com.

REBAnews

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PAGE 11

MASSDEP’S PROPOSED REGULATORY REFORM REVISIONS conditions, a general permit also makes the permitting process more predictable for the applicant.

The general permit amendments to the wetlands regulations apply only to qualifying ecological restoration projects. However, the proposed revisions to the wetlands regulations give MassDEP the ability to create additional general permit categories in the future.

CONTINUED FROM PAGE 8

in the Environmental Monitor. This should result in a more streamlined process for MassDEP as well as for regulated entities, including in particular municipalities.

SEWER EXTENSION AND CONNECTION PERMIT PROGRAM

EXEMPTIONS FOR REGULATED RESOURCES

The regulations at 314 CMR 7.00 require a permit from MassDEP for connections to, and extensions of, local sewer collection systems. Prior to applying for a permit from MassDEP, an applicant must first obtain a local permit from the department of public works, sewer department, or wastewater treatment facility. MassDEP approval typically does not apply different criteria or add significantly different conditions than these local permits. In all cases, the MassDEP permit requires compliance with the local permit. MassDEP proposes eliminating the current duplicative state permitting requirements for sanitary and industrial connections to, and extensions of, public sewer systems. These permitting requirements will continue to be regulated at the local level.

MassDEP proposes changes to clarify that wetlands arising from the creation of stormwater management systems do not constitute new wetland jurisdictional areas. In addition, the changes allow the maintenance of stormwater systems that have been previously approved to be modified or improved without additional review, provided that documentation is supplied demonstrating that the system is not within a naturally occurring wetland resource area, and that any changes to the stormwater management system occur in accordance with the provisions of the act, and improve upon or maintain the capacity, pollution attenuation, and flood control properties of the stormwater management system.

SUPERFUND OIL AND HAZARDOUS MATERIALS

WATERWAYS REGULATIONS – MEPA PERMITTING TIMELINE/CHAPTER 91 This proposed regulatory modification streamlines the application review timeline for large projects subject to review under both the Massachusetts Environmental Policy Act (MEPA) and under MGL c. 91 (Waterways) described at 310 CMR 9.11(2)(b)(4) and eliminates the Summary Table of Application Review Schedules at 310 CMR 9.11. These revisions will save 25 application review days by allowing the MassDEP Waterways Program to begin reviewing an application prior to receipt of the Secretary’s Final MEPA Certificate. The regulations also clarify the timeframe within which a public hearing must be held.

WETLANDS PROTECTION ACT REGULATIONS COMBINED APPLICATIONS AND PERMITS The proposed regulatory amendments streamline review mechanisms for permitting projects subject to multiple and different regulatory requirements. The revisions will allow a project applicant to file a combined application and receive a combined permit from MassDEP for as many as three separate required permits. In order to preserve the authority of conservation commissions to approve projects under the Wetlands Protection Act, in many instances, a combined permit from MassDEP will only incorporate the requirements of Chapter 91 and the 401 Water Quality Certification Regulations. If a superseding order of conditions is requested of MassDEP, the combined permit may is-

“The purpose of the pending MassDEP Regulatory Reform Initiative is to streamline the permitting process and maintain the department’s high standards of environmental protection.” sue under the Wetlands Protection Act, Chapter 91 and 401 Water Quality Certification. The combined application may not serve as the application for a Chapter 91 license or permit for a non-water dependent use, an application for a small structure accessory to a residence under the simplified process established by 310 CMR 9.10, or certification under the general license issued in accordance with 310 CMR 9.29 (currently being proposed as part of a separate regulatory reform effort).

GENERAL PERMIT FOR ECOLOGICAL RESTORATION The proposed amendments to the wetlands regulations streamline the permitting process for qualifying projects that require a wetlands approval. Since a project authorized by a general permit is exempt from the environmental review process under the Massachusetts Environmental Policy Act (MEPA), a proponent can save substantial time and money by applying for a general permit. Because a general permit contains standard

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The proposed MCP amendments in MassDEP’s Regulatory Reform Initiative will make noteworthy changes to key terminology, site classifications, AUL procedures, site closures, NAPL requirements, and cleanup standards.

ASBESTOS STANDARDS AND PROCEDURES MassDEP is revising 310 CMR 7.15 to align asbestos removal work practice requirements with the Massachusetts Department of Labor Standard’s asbestos regulations and make the regulations clearer and more consistent with EPA’s standards contained in its Asbestos NESHAP by incorporating existing federal requirements.

LANDFILLS, TRANSFER STATIONS AND OTHER SOLID WASTE FACILITIES MassDEP is streamlining 310 CMR 19.000 by streamlining aspects of MassDEP permitting for transfer stations, certain post-closure uses at closed landfills, and management of “special wastes,” and standardizing and expanding the solid waste program’s use of thirdparty inspections and reviews at solid waste management facilities, and standardizing certain other program requirements that have traditionally been dealt with in facility permits. t Greg McGregor is a member of the REBA board of directors and chair of REBA’s environmental committee. He can be reached at gimcg@mcgregorlaw.com.

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JANUARY 2014

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No one else offers 3-way IOLTA reconciliation (and it’s FREE!).* • Save valuable billing hours.

• Avoid costly mistakes.

• Additional services included in our REBA affinity package available at no cost to members: 3 Free remote deposit and check scanner 3 Free online wire transfer service with email alerts on IOLTA 3 Free stop payments on IOLTA 3 Access to our dedicated Law Firm Service Group for all your service needs.

Call Senior Vice President Ed Skou today at 617-489-1283 or email at edward.skou@belmontsavings.com.

How can we help you?

belmontsavings.com

Learn how we can help you: | 617-484-6700 | In Belmont, Cambridge, Newton, Waltham & Watertown |

*Free 3-way IOLTA reconcile service available to REBA members with Belmont Savings IOLTA balance of $1,000,000 or higher.

Member FDIC. Member DIF.