Lu v. Hulme et al

Filing 10

First Opposition re 7 MOTION to Disqualify Counsel filed by George Hulme, Trustees of Boston Public Library. (Driscoll, Caroline)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-11117-MLW

FRIEDRICH LU,
Plaintiff,
v.
GEORGE HULME, in his individual
capacity and in his official capacity,
TRUSTEES OF THE BOSTON PUBLIC
LIBRARY,
Defendants.

DEFENDANTS GEORGE HULME AND THE TRUSTEES OF THE
BOSTON PUBLIC LIBRARY’S OPPOSITION TO PLAINTIFF’S
MOTION TO DISQUALIFY SO CALLED COUNSEL

The City of Boston Law Department (“Law Department”) submits this Opposition
to Plaintiff’s Motion to Disqualify So Called Counsel. Plaintiff claims that the Law
Department does not have the authority to represent either the Trustees of the Boston
Public Library (“Board of Trustees”) or George Hulme (“Hulme”) (collectively,
“Defendants”). As established by City of Boston Municipal Code Ch. 5-8, however, the
Law Department is duly authorized to provide legal services to all city departments,
officers and employees. The Board of Trustees is a municipal board charged with the
care of the Boston Public Library (“BPL”). Mr. Hulme is an employee of the BPL.
Because the Law Department may represent both of the Defendants, the Law Department
respectfully requests that this Court deny Plaintiff’s motion with prejudice.

ARGUMENT
A cursory review of the City of Boston Municipal Code (“CBC”) reveals that the
Law Department is authorized to represent both Defendants:
The Law Department under the Corporation Counsel among other duties,
shall 1) advise any officer or employee of the City on any question of law
connected with the discharge of his official duties; 2) appear as Counsel in
all suits, actions, or prosecutions which may involve the rights or interests
of the City; and 3) defend the officers of the City in suits against them for
their official actions, or for the performance of their official duties, or
when any estate, right, privilege, interest, ordinance, act, or direction of
the City is brought in question. The only restriction mentioned is that no
person connected with the Law Department shall […] appear in court in
any case to which the City is not a party. CBC Ch. 5-8.1.
Per CBC Ch. 5-8.1, the Law Department has a broad mandate to provide legal
services to all City departments, officers and employees. Moreover, CBC Ch. 11, § 9 states that “the word ‘officer’ shall include officers and boards in charge of
departments and the members of such boards.”
As noted above, the Law Department shall “defend the officers of the City
in suits against them for their official actions, or for the performance of their
official duties.” CBC Ch. 5-8.1. The Trustees are a municipal board whose sole
purpose is “the general care and control of the central public library in [Boston]
and of all branches thereof.” See 1878 Mass. Acts, Ch. 114, p. 76; see also CBC
Ch. 11-8.1 (establishing a “Library Department” under the charge of a Board of
Trustee). Thus, as a municipal board in charge of a City department, the Board of
Trustees is an officer of the City of Boston that may be represented by the Law
Department.
Moreover, the fact that the Board of Trustees is a municipal corporate board with
legal capacity to accept bequests and own property has no bearing on the Law

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Department’s ability to represent it. See Trustees of Pub. Library of City of Boston v.
Sherrill, 263 Mass. 173, 174 (1928) (affirming a bequest to the Trustees for the purchase
of books and other items; the Law Department appeared on behalf of the Trustees); see
also CBC. Ch. 11.8.2 (requiring the Board of Trustees to submit an annual,
comprehensive report on the condition of the library).
Here, Plaintiff is suing the Board of Trustees as caretaker of the library because of
an incident at the Copley branch. See Plaintiff’s Complaint at ¶ 2 (“Compl. ¶ __.”). The
Board of Trustees is a City officer whose very inclusion in Plaintiff’s Complaint is
related to the performance of its official duties; therefore, the Law Department has the
authority to represent the Trustees.
Likewise, Mr. Hulme is employed as the Supervisor of Security, Shipping and
Receiving at the BPL. See Compl. ¶ 9; BPL Management Staff, http://www.bpl.org/
general/management.htm (site last visited July 12, 2012). A person employed at a
“municipal agency” is a “municipal employee,” and a “municipal agency” is any
department of a city government or any division or board thereof or thereunder. See
M.G.L. c. 268A, § 1. Because the Public Library is a City department, the Law
Department may represent any of its employees. See CBC Ch. 1-1, § 9. Thus, the Law
Department’s representation of Mr. Hulme is this case is entirely appropriate.

CONCLUSION
For the reasons discussed above, it is clear that the Law Department has the
authority to represent the Defendants. Therefore, Defendants respectfully request that
this Court deny Plaintiff’s Motion to Disqualify with prejudice.

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Respectfully submitted,

DEFENDANTS GEORGE HULME, in his
individual capacity and in his official capacity
and TRUSTEES OF THE BOSTON PUBLIC
LIBRARY
William Sinnott
Corporation Counsel
By their attorneys:

/s/Caroline O. Driscoll____________
Caroline O. Driscoll, BBO# 647916
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
[phone]

Date: July 13, 2012

LOCAL RULE 7.1 CERTIFICATION
I also certify that on July 13, 2012, I filed this document through the Court’s
CM/ECF system and that an electronic copy will be sent via email to those identified as
non-registered participants per agreement with Plaintiff.

/s/Caroline O. Driscoll
Caroline O. Driscoll

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