If the topless pictures of Kate Middleton were taken in Massachusetts, would she have had a legal claim under Massachusetts law for violation of her privacy?

17 September 2012

Most likely.  The topless photos of Kate Middleton reportedly were taken in the south of France while the royal couple was sunbathing.  The pictures apparently were obtained from a significant distance, one report being a ½ mile away.  Although the privacy laws in France are known to be some of the strictest in the world, and much more so in general than the United States, due to the nature of the photos, the Duchess of Cambridge would likely have a legal claim under Massachusetts law if the incident occurred here in Massachusetts.

Whether a tort for the violation of a person’s right to privacy in some shape or form has existed under the common law (created by courts) in Massachusetts and under what circumstances a claim would arise was not firmly established in Massachusetts.  Baker v. Libbie, 210 Mass. 599 (1912); Corliss v. E.W. Walker, Co., 57 F. 434 (C.C.D. Mass. 1893) modified, 64 F. 28 (C.C.D. Mass. 1894).  Only in recent times did the tort under the common law take some shape.  In Alberts v. Devine the Massachusetts Supreme Judicial Court affirmed that a patient has a right of privacy for the information a physician obtains in the patient-physician relationship.  395 Mass. 59, 65 (1985).  Today, a right to privacy under the common law may still arguably have some grounding in Massachusetts law.  However, reliance on the common law in most instances may not be necessary; in October 1973 the Massachusetts legislature passed a law intended to provide citizens a statutory right to privacy.  It is Mass. Gen. Laws ch. 214 § 1B.  It reads:

   

“A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.”

Although what is “unreasonable” or “substantial” or “serious” is a matter of some legal debate, it is hard to imagine that sneaking around taking nude pictures of a woman who is on private property is not unreasonable or substantial or serious in anyone’s book.  This author thinks it is safe to say that Kate Middleton would have a claim under this statute under the facts as reported if the photos were taken in Massachusetts. 

In the event that you are a party in a case involving the right to privacy in Massachusetts, expect to be a party in a case, or want to know if a claim exists under a certain set of facts, feel free to give our office a call.

What is limited assistance representation in Massachusetts and how can I benefit from it?

12 September 2012

Limited assistance representation (“LAR”) is a relatively new (and exciting) way clients and attorneys can structure representation agreements.   Specifically, for clients LAR is an agreement to limit the representation to only part of a case, such as one hearing or court conference, instead of the more traditional representation agreement where an attorney represents the client for the entire court case.  The goal of LAR is to allow a client to hire an attorney on a limited basis and save money by avoiding the cost of an attorney for an entire case.  Also, an intended benefit is for clients to be represented for at least part of the case when they normally would not be represented at all due to cost.  It is something to consider when money is tight for the right kind of case. 

For attorneys and formally for Massachusetts, LAR is a relaxing of procedural rules.  You see, traditionally, a lawyer who files a document in a case makes an “appearance” that triggers a number of responsibilities for the clerk’s office, the lawyer, and the opposing party.  Most importantly, a lawyer that has made an appearance in a case for a client must continue to represent the client until he gets permission to leave the case or is replaced by successor counsel.  The gist for the lawyer is that (in the past without LAR) it has been difficult to get out once you’re in.  (This is one big reason why attorneys require retainers before representing a client.)  Lawyers are fearful to avoid having to spend the time to get out of a case when the client is not paying them, or worse, have to represent the client in a trial because for whatever reason the judge will not let them out of the case, which has and does happen. 

Technically what has happened is that the Massachusetts Supreme Judicial Court has issued a standing order setting up the procedural rules that must be followed to represent a client on a LAR basis and allowing individual courts throughout Massachusetts to allow LAR if desired.  An attorney must follow these procedural rules to appear before a court under LAR. 

LAR can be a great way to go for both client and attorney.  But it is not appropriate for every case.  An attorney considering a LAR agreement must analyze the matter and make sure it is appropriate.  If so, the benefits can be great.

In the event that you are involved in a court case or expect to be involved in a court case in Massachusetts and LAR interests you, feel free to give our office a call.

Do I have a claim for intentional infliction of emotional distress under Massachusetts law?

1 September 2012

Maybe, but it is a real high legal standard to meet.

There are many people making claims for intentional infliction of emotional distress.  Once I saw a car (Car #1) driving in the breakdown lane of a congested highway fast enough to pass other cars sitting in traffic.  I then saw a car in the right lane (Car #2) pull enough into the breakdown lane to stop the progress of the car.  Is there a claim here?  Was this intentional?  Yes.  Is it inflicted upon someone?  Yes.  Is it emotional distress?  Yes.  But it is quite unlikely any judge would believe that there is a claim for intentional infliction of emotional distress under Massachusetts law. 

 

This is because the title of a claim is not all there is to it.  One must research statutory and case law to gain an understanding of what the claim is all about.  Just a few of the requirements are the degree of the behavior and the severity of the distress. 

Under Massachusetts law, the behavior inflicted must be “extreme and outrageous conduct.”  Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997).  It must be “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.”  Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).  What car #2 did is arguably rude and intended to cause frustration, but it does not meet this standard. 

 

An intentional infliction of emotional distress claim also must cause severe distress, not garden variety distress.  Bailey v. Shriberg, 31 Mass. App. Ct. 277, 279-80 (1991) (being “upset and up tight,” or “disgusted, annoyed, fed up, tired, and rundown” about defendant’s dogs’ barking and radios blaring 20 feet away not distress of “requisite severity”).  The distress must be of a nature that “no reasonable man could be expected to endure it.”  Agis v. Howard Johnson Co., 371 Mass. at 145.  One may be quite upset that a person blocks their way to drive in the breakdown lane, but it doesn’t meet this standard.

Now pretend that the driver of Car #1 was rushing their friend to the hospital who had time-sensitive and serious injuries and the driver of Car #2 knew of the injuries and the intended destination of Car #1 and was yelling “you’ll never get there and she will die.”  Hmmmm, maybe we are getting closer.

The point is that there is usually more than just the title of a particular claim and care must be taken prior to filing suit to see if legal standards are met.  

In the event you believe you have a claim for intentional infliction of emotional distress or another tort, feel free to give us a call.