MA to Review Rules Limiting Judicial Comment

The Massachusetts Supreme Judicial Court announed today that it has appointed a panel to consider whether to revise the rule limiting public comment by judges. Canon 3B(9) of the Massachusetts Code of Judicial Conduct requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." The rule came under fire most recently in when Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who is charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

Asked about the incident during her speech at the Nov. 30 annual meeting of the Massachusetts Newspaper Publishers Association, SJC Chief Justice Margaret H. Marshall indicated she might revisit the rule. In today's announcement, the court said:

"The Committee's task is to provide the Justices with a recommendation regarding changes, if any, that should be made in the canons or commentary to that provision of the Code, or such other recommendations relating to public comment by judges that the Committee wishes to make. The Justices have asked the Committee to submit its report within three months."

Chairing the 11-member committee is Superior Court Judge E. Susan Garsh, a former media lawyer. Other members include lawyers, judges and a law professor.

Podcast: Virtual Law Firms

Almost since the earliest days of the Internet, lawyers have been experimenting with virtual firms to increase efficiency and lower costs. More recently, virtual firms have taken on greater levels of sophistication and complexity. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss this phenomenon with the principals of two virtual firms and a business-development consultant. Joining my cohost J. Craig Williams and me are: Larry Bodine, business development consultant and author of the Law Marketing Blog; Wyatt Durrette, founding member of the virtual IP firm XDL Group; and Mark Harris, CEO of Axiom Legal.

Download or listen to the program on this page or listen on your mobile phone using mobilize. Subscribe to receive all Lawyer2Lawyer programs via RSS or using iTunes.

Podcast: Social Networking and the Law

This week on our legal-affairs podcast Lawyer2Lawyer, my co-host J. Craig Williams and I look at the topic, Social Networking and the Law. We have an insightful conversation with three guests who have very different perspectives on the topic: Chris Carfi, co-founder of business-networking company Cerado; Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law; and Kara Swisher, co-executive editor of All Things Digital. Listen to or download the program at this page.

Reg Requires Media to Wear Safety Vests

A Federal Highway Administration regulation that takes effect later this year appears to require members of the news media to wear high-visibility safety apparel when covering events on federally supported highways. The regulation, published at 71 Federal Register 67792, requires, "All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel." The term "workers" is defined to include "responders to incidents," and the explanatory notes that preface the regulation (on page four, far right column) say that includes "media representatives when covering news events or similar actions within highway rights-of-way." The regulation takes effect on Nov. 24, 2008, and will be published as 23 CFR Part 634.

E-mails did not Violate Open Meeting Law

A Massachusetts district attorney has ruled that a Northampton city councilor did not violate the state's open meetings law when he sent e-mails discussing city business to a majority of city councilors. The Daily Hampshire Gazette reports that Northwestern Assistant DA Cynthia M. Pepyne concluded that the e-mails were lawful because they did not result in deliberation among the council members.

The newly elected councilor had not been sworn in when he sent the e-mails. If I understand the story correctly, he sent the e-mails to nine city residents and the council president. In them, he discussed other communications he'd had with other councilors asking where they stood on an issue that was to be voted on at the next council meeting.

"While Reckman's email correspondence was within the bounds of the law," reporter Dan Crowley writes, "Pepyne noted in her ruling that email communications amongst a quorum of members of the City Council, even if conducted in serial fashion, will constitute a violation of the Open Meeting Law and subject the council to enforcement proceedings."

The Republican Opposes CORI Changes

An editorial today in The Republican, Changes in CORI Would Be a Crime, says that Gov. Deval Patrick's proposed changes to the Criminal Offender Record Information law, or CORI, would restrict the public's right to know about criminal convictions in a job applicant's past. The bill -- available here -- proposes various changes to the composition of the criminal history systems board and creates a criminal justice information services department. From the perspective of public and news media access, the significant provisions of the bill are those that reduce the time periods after which offenders can request sealing of their records:

• Records of misdemeanors could be sealed after five years, instead of the current 10 years.
• Records of felonies could be sealed after 10 years, instead of the current 15.
• The requirement of 10 years without a conviction prior to sealing would be changed to five for misdemeanors.
  

Those changes are contrary to the public interest, says The Republican:

"This law was passed as a public safety measure. Parents in Massachusetts, for example, can be reasonably certain that the bus driver who transports their children to school every day does not have a history of drunken driving convictions. That's the CORI at work -- and, although it has its flaws, it does not need to be disassembled."

I am Interviewed on LexBlog

Thanks to Rob La Gatta at Real Lawyers Have Blogs, the blog of LexBlog, for publishing this Q&A with me.