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Leonardo Angiulo: Did Worcester’s City Solicitor File Strategic Litigation Against Public Policy?

Monday, March 04, 2013


Our criminal justice system begins with an adversarial system. Prosecutors rely on evidence gathered by hard working members of law enforcement, and defense attorneys seek to apply principles of due process guaranteed by the Federal and State Constitutions.

With that background, consider that local Criminal Defense Attorney Ed Ryan convinced a Judge of the Worcester Superior Court that police improperly coerced an admission to a murder from his client. Charges against the client were dismissed and she later filed suit against the City alleging civil rights violations and seeking damages for the three years she spent in prison. Attorney Ryan now faces a claim against him filed by the City of Worcester that says, in summary, if his client was in prison too long it was his fault for not getting her out fast enough.

Massachusetts General Laws chapter 231, section 59H is titled “Strategic litigation against public participation.” The statute is designed to effect the prompt dismissal of lawsuits filed to intimidate citizens, and their attorneys, who become defendants simply because they petitioned a branch of the government for a redress of grievances. These motions to dismiss are known as Anti-Slapp motions and are referred to in precedent as meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.

Now, I must point out that I do not have access to all the facts of the case against Attorney Ryan, nor will I pretend to. So, for the purposes of clarity in this column, I think an example based on a previous case would be helpful. Lets say a land conservation group files a lawsuit to prevent a developer from building on a particular parcel of real estate. Then the developer responds by counter-claiming that the land conservation group's attorney has interfered with that developer's use and enjoyment of his property. The question presented is whether the developer's suit represents a meritless action designed, not to win, but to intimidate the people standing between him and his subdivision.

The process for filing an Anti-Slapp motion has two main steps. First, the attorney for the land conservation group would have to show the claim against them was based on their petitioning activities alone and have no basis other than those good faith actions on behalf of their client. If that first burden gets met, then the burden falls on the developer to show the court that a) the petitioning activity of the attorney in question had no basis in fact or law and b) the developer suffered some injury as a result of the petitioning activity.

As a general matter, however, suits targeting attorneys for no reason except they were the ones to represent a particular client appear to me to be especially toxic. If these types of cases were to proceed it would change the face of the adversarial system by shifting attorneys' focus onto saving their own skin instead of what is ethical and in the best interests of their client. How can attorneys fulfill their role in the judicial process as advocates if they have, in the back of their mind, that they could become defendants themselves by aggressively defending an unpopular person or an unpopular cause?

It is a strange time when a party accused of wrongdoing turns around and says it was your own fault for not catching up to me sooner. But that is precisely what the City of Worcester seems to be saying to Attorney Ryan.   


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