Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
_ Don’t let the government push you around and scare you from protecting your rights.  Many people are afraid that the government has a huge advantage in unlimited resources to pay for attorneys.  And worse, if a case gets thrown out, the plaintiff could get stuck on the hook for those fees and lose even more than if they never went to court.  It is a method some governments and large corporations use to intimidate small guys not to pursue their rights.  That is just the message being sent inEfron v. Mora Dev. Corp., No 11-1347 (2012). Puerto Rico in the First Circuit, shares the same Federal Appeals Court as Massachusetts.  Unlimited resources, however, does not mean attorneys can rack up hours and bills on frivolous defense.  

In this case the Plaintiff owned land near lots intended for development. The Puerto Rico Highway and Transportation Authority planned to condemn (take by the power of eminent domain) most of plaintiff's land, to help complete the development. The Plaintiff's filed a motion to dismiss the condemnation proceeding and halt the taking of his property, but the Federal district court in Puerto Rico rejected it.  So the Plaintiff filed suit under 42 U.S.C. 1983 against the developer, Puerto Rico Highway and Transportation Authority  and their employees, alleging conspiracy to deprive him of his property without just compensation or due process and torts claims under commonwealth law of Puerto Rico.   The district court entered summary judgment for defendants.  Further the court awarded $92,149 in attorney fees to the Defendant’s. On March 26th the First Circuit Court of Appeals vacated the fee award. They held that Puerto Rican law provides process to get compensation for property takings by the government and the Plaintiff did not take advantage of that process. Those were the only facts that needed to be shown for the dismissal, so the award of $92,149 in attorney’s fees was not justified.  

If you have a case against a monster defendant like the government or a mega corporation.  You should not be afraid because your David facing Goliath.  First you want a good evaluation of your case and want to be sure you have exhausted all your administrative remedies.  Sometimes a court case is premature when you could still work with an agency to resolve your problem.  Finally, you want an attorney who will give you a fair evaluation of your chances, not every case is a winner.  If after your evaluation you decide to go forward, be sure that your attorney keeps records of and objects to improper actions by the other attorney’s so that you can defend yourself from padded bills should you be charged with covering the other sides attorney fees.   

Remember we work under the American system and not the English system, which means, in most cases, each client is responsible for his or her own attorney fees regardless of who brought the action of who wins.  In some cases, however, it is possible to get attorney fees awarded when the other claim is frivolous or a statute authorizes it.  Even in those cases, however, the paying client does not have to pay for unnecessary work.

If you would like to have an evaluation of you case contact the Law Office of Isaac J. Mass for a free consultation.  

_ Yesterday, The United States Supreme Court has just handed down two split decisions on the rights afforded to criminal defendants in regards to plea bargaining. 

 In Missouri v. Frye,  No. 10-444 (2012), the court found that a Defense Attorney had a duty to convey all written plea offers to the criminal defendant and the failure to do amounts to ineffective assistance of counsel and a violation of the defendant’s  sixth amendment rights.  This decision is not likely to have far reaching implications.  While it is true, though some attorneys acting on previous instructions of their defendants refuse plea offers without communicate such offers to the defendant, very few of these offers are in writing.  Typically a plea agreement, or “green sheet” as they are called in Massachusetts are not drafted until there is an agreement between the parties.  An assistant district attorney, particularly in the face paced hurly burly of the District Court, would be unlikely to draft plea offer without the prior acquiescence of the defendant.

In Lafler v. Cooper, No. 10-209 (2012), however, the court held that bad advice from defense counsel about whether or not to take a plea agreement may amount to ineffective assistance of counsel and a violation of the defendant’s sixth amendment rights.  Where a defendant refused a plea offer from the prosecution which he or she would otherwise accepted, on the basis of an attorney’s recommendation which itself was grounded in an error in law, the split court found the criminal defendant’s sixth amendment rights were violated.  In this case, the defense attorney told his client that the prosecution would not be able to prove “intent” to kill, where the victim was shot below the waist. 


This case has much farer reaching implications.  Defense attorneys regularly make judgments about what they believe the prosecution can prove.   Elements of a crime, including intent, are facts for a jury to consider and they must be proven beyond a reasonable doubt.  These are not legal principals.  A jury considers all the evidence in coming to a decision and the weight it gives any individual piece of evidence is up to the jury alone.  The fact that a victim was wounded in an area that produces a non-lethal wound is certainly a factor a jury might consider in weighing intent.  The problem as it appears hear is the confidence with which the attorney presented his opinion about how the jury would weigh the evidence.  While the attorney suggested the prosecution could not prove its case, in fact he would have been better to have advised his client that in his opinion and based in his experience it would be unlikely that a jury might find the element of intent based on those facts.  The absoluteness is what the court found problematic.


Proving the advice your attorney gave you and that you would have accepted the plea otherwise is somewhat problematic.  In this case, the defendant was on record having indicated that he would accept the plea, before he had an opportunity to consult with counsel.  While that can occur, it is infrequent and most initial offers are not on the record.  Harder still is the proving the advice an attorney gave you unless it is in writing.  Of course, a criminal defendants communications with his or her attorney are privileged and confidential.   Because they are privileged and confidential they rarely take place in front of witnesses.   That, privilege and confidence, however, belongs to the defendant and not the attorney, and a defendant can compel his trial attorney to take the stand and reveal the advice he gave the client.


If the only difference between the trial and plea is that the defendant would have received a lesser sentence under the plea, the court found, that the trial court should have an evidentiary hearing to determine whether the defendant would have accepted the plea. If so, the court may exercise discretion in determining whether the defendant should receive the term offered in the plea, the sentence received at trial, or something in between.

If, however, the offered guilty plea was for less serious counts than the ones for which a defendant was convicted after trial, or where a mandatory sentence confines a judge’s sentencing discretion. In these circumstances, the proper remedy may be to require the prosecution to reoffer the plea. The judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea, or leave the conviction undisturbed. In either situation, a court must weigh various factors. For example, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.  Additionally, a judge is not required to disregard any information concerning the crime discovered after the plea offer was made.


Prosecutors are concerned that this case may open a flood gate of litigation, for everyone who accepted a plea over the last 30 years.  As over 90% of all state and federal convictions are the result of plea agreements, this is not a minor concern.  The court, however, looked to the 6th circuit where this rule has already existed and found the courts able to handle the volume of litigation.  A very real concern for defendants is that prosecutors are less likely to offer plea agreements.  Because the defense counsel’s advice is privileged and the prosecutor has no right to know what advice was given, he or she may be gun shy about offering an agreement only to be refused and not know the basis of the refusal.  It may result in the need for a judicial colloquy on each refused plea prior to proceeding to trial, in order to assure that the defendant was afforded al the sixth amendment protection and that a trial would not be a waste of judicial resources where the defendant would have accepted had he or she been correctly advised of the law.   Note currently such colloquy’s caused only when defendants accept pleas not when they refuse them.  This is real danger to judicial economy.  Additionally, defendants, may be intimidated by judges who appear to be second guessing the advice defense counsel has given them, deteriorating the attorney client relationship.


If you or a loved one has accepted a plea agreement and believe the protections of the sixth amendment were not given, contact the Law Office of Isaac J. Mass for a free initial consultation.  We offer flat rates to investigate and review records find errors of law.  You need not be currently incarcerated to take advantage of this decision.  If you were convicted of a serious crime for which you have already served your time, but were offered a plea for a lesser offense, this case may help clear your record.  You can never get back time served, but a cleaner record may make it easier in some cases to find employment or other services.


(c) 2012 Law Office of Isaac J. Mass, 289 Main Street, Suite 201 Greenfield, MA 01301