Open Meeting Bill Lacks Teeth

A bill to overhaul the Massachusetts open meeting law was reported favorably out of committee yesterday. While there is a lot to like about the bill, it is disappointing for its failure to address the most significant weakness in the law -- its lack of teeth. The bill that the Joint Committee on State Administration and Regulatory Oversight reported out represents a compromise between the bill filed by the House chair of the committee, Rep. Antonio F.D. Cabral (D-New Bedford) and a draft bill circulated but never filed by Attorney General Martha Coakley. Earlier versions of both bills would have given the law teeth and put Massachusetts on a par with most other states by authorizing fines against public officials who violate the law. Rep. Cabral's bill also would have authorized awards of attorneys' fees to citizens who brought successful actions to enforce the law. Yesterday's compromise bill dropped the penalties and the attorneys fees. While existing law allows a fine against a board that violates the law (as opposed to its members), the new bill weakens even that provision by adding in proof of "intent" as a condition precedent to the fine -- a standard that is nearly impossible to meet with regard to a public board or commission.

For more on the law, including comments from me, see these reports:

• Lawmakers ax fines for meeting violations.

• Move to reform open meeting law advances.

'Fahrenheit 9/11' Defamation Case Dismissed

A federal appeals court has dismissed the defamation lawsuit brought by a U.S. military veteran of Iraq against filmmaker Michael Moore over his depiction in the 2004 documentary Fahrenheit 9/11. In Damon v. Moore, the 1st U.S. Circuit Court of Appeals ruled Friday that former Army Reserves Sgt. Peter J. Damon's appearance in the documentary could not be construed as defamatory.

Damon lost his right arm and part of his left arm while on National Guard duty in Iraq in 2003. While awaiting surgery at Walter Reed Army Medical Center in Washington, D.C., he was interviewed by Brian Williams of NBC about a new pain blocker he was receiving. Damon consented to the interview's broadcast on Nightly News but not to its use elsewhere. Nonetheless, NBC allowed Moore to use it in the documentary, which was critical of President Bush and the Iraq war. The 16-second clip showed Damon describing the pain he had felt in his hands.

In his lawsuit, Damon claimed the film was an attack on the integrity of the Commander-in-Chief and on the Armed Forces and he alleged that his appearance in it defamed him by falsely portraying him as sharing and endorsing Moore's views. On appeal after the trial court dismissed the case, the 1st Circuit affirmed the dismissal, ruling that his appearance in the film was not susceptible to a defamatory meaning either within the community at large or within the community of military personnel and veterans.

"While we appreciate Damon's anger and frustration over appearing without his consent in a documentary that stands in direct contrast to his own personal and political beliefs, we conclude that his appearance in the documentary is not reasonably susceptible of a defamatory meaning. ... Since Damon's appearance was not reasonably susceptible to a defamatory meaning under Massachusetts law, we need not reach the question of whether being falsely labeled either pro- or anti-war, as a matter of law, holds a member of the military up to the type of scorn and ridicule required for a defamation claim."

The full decision can be read here.

Podcast: Spitzer and the Law

Lawyers considered Eliot Spitzer either a hero or a villain. But as the now-former governor of New York faces possible criminal charges, we explore the case against him on this week's edition of the legal-affairs podcast LegalTalkNetwork. Joining my cohost J. Craig Williams and me to discuss the legal case against Spitzer are: Harvey Silverglate, nationally known criminal defense and civil liberties lawyer, writer and blogger; Dan Slater, lead writer for The Wall Street Journal's Law Blog; and David Frank, former criminal prosecutor and now a reporter at Massachusetts Lawyers Weekly.

• Episode details.
• Download the MP3 file.
  
• Listen in Windows Media.
  

You can receive all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Libel Suit Tossed Against Local News Site

A Vermont judge has dismissed the libel lawsuit filed against Chris Grotke and Lise LePage over a comment posted on the community news site they co-founded, iBrattleboro.com. The plaintiff, Effie Mayhew, had argued that they should have edited or removed the allegedly defamatory comment. But the judge found that they are immune from liability under section 230 of the Communications Decency Act.

David Ardia has full details at Citizen Media Law Project.

Town's Unposted Meetings Violated Law

The town of Charlton's ad hoc Water Search Subcommittee violated the Massachusetts open meeting law when it met in a series of unposted meetings, the Worcester District Attorney's Office has ruled. According to the Worcester Telegram & Gazette, the meetings came to light after the newspaper filed a public records request for the subcommittee's minutes. Upon learning of the illegal meetings, the newspaper filed a complaint with the DA.

Sunshine Week coverage in Mass.

I am collecting links to Sunshine Week coverage by Massachusetts newspapers at the Web site of the Massachusetts Newspaper Publishers Association.

Podcast: Incompetence Among Immigration Lawyers

A recent decision of the 2nd U.S. Circuit Court of Appeals opened with these words: "With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country." This week on the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I explore the competence of legal representation provided to immigrants. Joining us as guests to discuss this issue are three experts in immigration law:

• Lisa D. Ramirez, an immigration lawyer in Santa Ana, Calif.
• Nora Privitera, special projects attorney for The Immigrant Legal Resource Center in San Francisco.
• Eleanor Newhoff, immigration lawyer in Cambridge, Mass., and part-time attorney for Greater Boston Legal Services.
  

We discuss the quality of legal representation provided to immigrants, why so many immigrants receive inadequate legal assistance and what lawyers are doing to educate clients and the bar.

• Episode details.
• Download MP3 file.
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You can receive all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Podcast: The Lawyer Candidates

With the Democratic race for president down to two lawyers, how well did the legal careers of Senators Barack Obama and Hillary Rodham Clinton prepare them to become our nation's chief executive. That is the topic this week on the legal-affairs podcast Lawyer2Lawyer, as my cohost J. Craig Williams and I are joined by:

• Professor Paul Finkelman, the President William McKinley distinguished professor of law and public policy at Albany Law School and author -- among his many publications -- of the chapter, "Abraham Lincoln: Prairie Lawyer," in the book, America's Lawyer Presidents: From Law Office to the Oval Office.
• Robert J. Spitzer, distinguished service professor of political science at SUNY Cortland and author of several books about the presidency, as well as the forthcoming book, Saving the Constitution from Lawyers.
  

We discuss how well legal experience prepares a candidate to become president and look at the specific careers of Obama and Clinton.

Listen to or download the show from this page. Subscribe to receive all Lawyer2Lawyer programs via RSS or using iTunes.

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.

Our Podcast Named Best Legal Podcast

I am honored to report that Lawyer2Lawyer, the weekly legal-affairs podcast I cohost with J. Craig Williams, is the winner for the second year in a row of Dennis Kennedy's Best of Law-related Blogging Award for Best Legal Podcast. Dennis writes:

"This regular weekly podcast of interviews and panel discussions has a new name for 2007, but is once again the clear choice as best legal podcast. The ability to produce a consistent weekly show with great topics and guests helps this podcast move to the top of the list. I'm consistently impressed by the way Bob Ambrogi and Craig Williams put together shows on the leading stories of the day. If you want to learn about how to do a good legal podcast, you can go to school on this one. And it's fun to be a guest on this podcast."

Kennedy's honorable mention in this category goes to Denise Howell's always superb This Week in Law.

The award is all the more special in that it comes from someone who hosts his own well-done podcast, The Kennedy-Mighell Report, together with Tom Mighell. Congratulations to Craig Williams and our producers and show hosts at the Legal Talk Network. Congratulations, as well, to the other Blawggies winners.

Podcast: The Tavares Case

A Massachusetts' judge's release of Daniel Tavares become part of the national political debate after Tavares allegedly shot and killed a newlywed couple in Washington state and Republican presidential hopeful and former Bay State Gov. Mitt Romney called on the judge -- his own appointee -- to resign. On the legal-affairs podcast Lawyer2Lawyer this week, we dissect the debate with two guests: lawyer and radio host Dan Rea, host of WBZ Radio's NightSide with Dan Rea, and David Frank, attorney and reporter with Massachusetts Lawyers Weekly. Listen to or download the show from this page.

Podcast: Vioxx Lawyers Discuss Settlement

On Nov. 9, Merck & Co., after long insisting it would never settle the 27,000 Vioxx cases filed against it, turned an about face and agreed to a global settlement in which it will pay $4.85 billion to resolve the bulk of these cases. Two of the lawyers who were instrumental in bringing this about join us to discuss the settlement on the latest episode of the legal-affairs podcast Lawyer2Lawyer. My cohost J. Craig Williams and I discuss the terms of the settlement and its implications with:

• Thomas V. Girardi of Girardi & Keese, one of the six attorneys who made up the plaintiffs' negotiating committee.
• Leigh O'Dell, a member of the Vioxx litigation team at the law firm Beasley Allen, whose partner Andy D. Birchfield Jr. was also a member of the plaintiffs' negotiating team.
  

We invited representatives of Merck and also of the Defense Research Institute to appear on the program, but they declined.

Listen to or download the show from this page. Subscribe to future episodes of Lawyer2Lawyer usings its RSS feed or subscribe via iTunes.

Podcast: The RIAA vs. File Sharers

This week on the legal affairs podcast Lawyer2Lawyer, we discuss the ongoing litigation by the Recording Industry Association of America against college students, soccer moms and others accused of illegally sharing and downloading music. Our guests for this program are two experts on the issue:

• Richard L. Gabriel, national lead counsel for the RIAA and a partner with the Colorado law firm Holme Roberts & Owen LLP.
• Fred von Lohmann, senior staff attorney specializing in intellectual property issues with the Electronic Frontier Foundation.
  

We discuss the state of these cases in the wake of the $222,000 verdict in the RIAA's case against Jammie Thomas and also consider alternatives to litigation, including the EFF's proposal for a different system of music licensing.

Listen to or download the program from this page.

MNPA Annual Meeting Set for Nov. 29

The annual meeting of the Massachusetts Newspaper Publishers Association is scheduled for Nov. 29, 2007, at Anthony's Pier Four in Boston. This year's featured luncheon speaker is Margaret H. Marshall, chief justice of the Supreme Judicial Court, who will speak on courts and the news media and take questions from the audience. A morning panel will focus on legislative proposals to reform the Massachusetts open meeting law. Panelists will include Robert J. Ambrogi, Esq., MNPA executive director; Robert W. Ritchie, Esq., head of the Attorney General's Municipal Division; and Thomas J. Urbelis, Esq., past president of the City Solicitors and Town Counsel Association.

The day begins with an MNPA business meeting at 10 a.m. The open meeting panel is at 11 a.m. At noon is a cocktail reception, followed by the luncheon at 12:30. Tickets are $60. Reservations may be made using this form.