Law Offices of David J Volkin

09/26/2023

A quick update on some bar-related activities.

First, I have officially started as Chairman of the Small Firm and Solo Practice and Law Firm Management Committee. This is the largest section of the MA Bar Assoc. I think this is my seventh year on the Committee overall and I had served as Vice Chair the previous two years. I am looking forward to this bar year as we will focus on AI's impact on the practice of law.

Second, I agreed to serve a third year as President of the Attleboro Area Bar Assoc. I am hoping to do some joint programs with the two organizations as well as looking at doing Friday after-work meet-ups once or twice a quarter.

While not bar-related, and I am not sure if the official announcements were made, I was named to MA SuperLawyers again for the 3rd of 4th year in a row (not sure) for the top 5% of business litigation attorneys in MA. And no, I do not pay them for this.

09/02/2023

I hope everyone had a great summer. My summer started off with a bench trial in Land Court over an esoteric issue of law that would have fit right in with a law school Property class exam. Reported in MA Lawyer's Weekly's relevant judgment sections, the Land Court, in a 21-page opinion, agreed with my client and voided the document titled "Right of First Refusal" (it was really a fixed price preemption) where she agreed to sell her property for a fixed price with no time limit to get the buyer to cancel a sale when it was determined that she could no longer sell due to an unknown illness that became an issue post-PSA. In this case, the lack of a time limit appeared to be accidental by the two counsels who handled the transaction (although one did try to deny that despite the evidence to the contrary).

These types of agreements can violate public policy. It is a highly factual analysis the courts must undergo to see if the document is or is not an improper alienation of land. In this case, the property had almost doubled in value since the agreement was executed and so this verdict provides a significant benefit to my client as her ability to move out of her residence to continue treatment elsewhere was severely compromised by the old home value. While I did not agree with this portion of the analysis, it was significant to the Court that the Defendants failed to assert their rights under the agreement other than refusing to agree to pay a higher price for the property and defending the lawsuit. After four years, the Court felt that all claims on the agreement were now unenforceable. *note- I actually argued that, but that was more hedging and wanting her to preclude a future case for specific performance of the original PSA agreement that was replaced with the "Right of First Refusal".

If there is a lesson in this for people, I would say the following:

1) Consider the experience of the transactional real estate attorney doing any type of agreement involving "springing" rights. I do not do transactional work, but do have a few who I have worked alongside with where collateral issues have arisen.

2) For the other side, assert your rights when they are questioned right away. Waiting out a party carries significant risks and, in this case, the financial burden of litigation with nothing to show for it.

3) For transactional attorneys, if in doubt about a novel type of agreement, consult a real estate litigator to help understand how these issues have played out in the courts. A small fee is a lot better than a malpractice case.

4) Generally a good idea to avoid entering into (regardless of which side you are on) agreements to sell property for a fixed price without any time limit (or an exceptionally long time limit) without addressing market valuation for durations over 4 years.

Where a plaintiff has challenged the validity of a right of first refusal agreement, the agreement became unenforceable with the passage of time, so a declaratory judgment should enter that the agreement is an unlawful restraint on alienation. “Plaintiff Nancy Tucker (‘Ms. Tucker’) commenced t...

05/16/2023

Due to the current high volume of cases, no new clients are being accepted at this time. Availability is expected to open back up to new clients in mid-July.

Thank you for your understanding.

12/31/2022

http://jlcards.com/xz3UB9

12/08/2022

I anticipate that this will be a very informative seminar for small firms and solo practitioners. Please join me as I host Dominic Grew on Tuesday, December 13 at 12:00. Free for MBA members, $50 for non-members (membership has a lot of benefits, including CLEs, legal research programs, among other items which you can view on the MBA membership page.

04/06/2022

In all this talk about the Supreme Court nominee, I thought this would be a good time for a primer on how our criminal justice system works.

Having spent a good part of the first 5 years of my career doing criminal defense work as a member of the United States Navy, I have a good understanding of the importance of defense counsel in our system.

The purpose of zealous advocacy by the defense bar is not about letting criminals escape justice, it is about ensuring that our government does not abuse its power. On the one hand, you have the massive resource of the government and on the other hand, the average person who would go bankrupt matching those resources. And this isn't even taking into account the natural human bias against those accused of a crime.

Zealous advocacy of a defendant forces the government to do its job correctly. When evidence is gathered correctly, investigated correctly, and prosecuted correctly, the likelihood of someone who committed a crime getting off on a technicality is near zero. If there are no consequences for doing their job wrong, you end up with a system of justice that is more akin to what we are seeing in Russia. Many would say that is where we are headed in terms of how the system treats the indigent and minorities. But, even if that is your belief, imagine how much worse it would be without zealous advocates for the defendants?

And so when you hear that a Supreme Court nominee was basically doing her job in defending the accused with all of her energy, vigor, and talent, you should only look at that as evidence of someone who knows how to do their job, do it well, and has taken part in the necessary process of ensuring a fair justice system in our nation.

As for myself, while the Navy chose my clients (much as a public defender doesn't choose their clients), whether they were accused rapists or child molesters, I did my job. While I was very successful in my rate of acquittals, I did personally find the work was hard on my psyche and it is why I left criminal law when I left active duty. If anything, I have more respect for those who do criminal defense because I know that I could not because of the emotional toll it can take.

So, I ask you not to consider a nominee's past in doing criminal defense as a negative. Instead, you should look at the totality of their career, their skill sets, their decisions, and analysis as a judge, and come to your own conclusions as to whether they are capable of preserving the Constitution and providing the intellectual heft necessary to render decisions which impact all of the courts in the nation. Whether you agree or disagree with the current nominee's individual case decisions, no one with knowledge of the law or how the system works would say that she lacks the necessary qualifications for the US Supreme Court.

Before anyone assumes I have a particular bias here, I also thought the same of Gorsuch, Kavanaugh, and to a slightly lesser extent, Barrett. I would actually say that I found all of the justices, with the exception of Thomas, as having demonstrated qualifications for the U.S. Supreme Court when nominated. To the extent that their political views, views on specific issues, etc. differ from my own, I consider that a separate issue from whether they are "qualified" and one which we need to consider carefully when voting for the person who nominates them (the President).

03/21/2022

http://jlcards.com/yF93JZ

02/13/2022

I know that there is a narrative that the state was pushing about people getting unemployment benefits they didn't deserve and the overall importance these payments were to the economy compared to other corporate benefits which may or may not have gone to their intended purposes or have as much impact on the economy. Most of these people were innocent and simply caught in the trap of thinking that selecting "electronic delivery" was the right thing to do rather than wait for snail mail to get notices. They didn't think that months after they stopped collecting benefits that the DUA would send them some odd decision reversing the benefits (often being wrong in that assessment) and the claimants see the letter only after they are told it is too late to appeal.

I will say that the DUA hearing officers have been decent in the appeals process and I also, thanks to the State Reps, have a contact within the DUA who helps people's cases get to the right people. To date, throughout the pandemic, I have successfully challenged every DUA appeal. This is in part because I have only taken appeal cases from those who have bona fide cases who properly deserved the benefits to the extent the law allows and that is the majority of the people who have called. Sometimes there are also those who were not eligible to receive payments who did because they thought they were eligible. That is not fraud. And this is why the Dept of Labor recently issued guidance to the states to waive these overpayments where the fault lies with the DUA for providing benefits to someone who accurately answered the eligibility questions and were still provided benefits. Now it is up to MA to adopt that guidance and I am hoping that they do. What purpose does it serve our community to take back a few thousand dollars from someone who used that money to pay for food, rent, and other payments which benefited others in the economy.

I also want to commend both journalists here, Shirley Leung and Larry Edelman. I have spoken with both of them at length and they have also spoken with many other advocates for the people caught in this (now political) crossfire as well. It is good to see aggressive journalism and the pursuit of accuracy and accountability these days.

I encourage you to read this article (and their others in this series) and have some empathy for the situation that the State has caused.

Months after approving their jobless claims, Massachusetts began telling people that they may need to return the money. Here are the stories of people battling with the Department of Unemployment Assistance.

01/11/2022

I almost forgot to mention that I will be a guest panelist for today's Small Firm and Solo Law Practice Management Committee Roundtable at 1:00 today. I am actually filling in for someone whose schedule got tied up late last week. There are already over 40 registrants so it should be a lively session. If you are a member of the Mass Bar Association and have registered, I hope to see you there.

12/31/2021

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12/24/2021

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