While most attorneys assume that their notes from client and witness interviews, as well as their mental impressions and resulting work product, will be protected from disclosure in all circumstances, counsel must take care to ensure client confidences and secrets are adequately protected in the face of a subpoena.
Numerous scenarios can arise where counsel is served with a subpoena to produce a client file, or to even testify regarding a client’s confidential information. Employees, consulting experts, and other professionals retained by counsel, including accountants and public relations firms, may also be subpoenaed for client information. For example, counsel may be subpoenaed to testify regarding the state of mind of a client when a contract is signed or to detail what was said at a meeting between business partners. When a subpoena is issued relating to confidences of a current client, the attorney is in a particularly difficult position because compliance with the subpoena may result in the attorney becoming a witness against her client and the potential destruction of the attorney-client relationship. The following article reflects some of the significant obstacles counsel may face and the best strategies for protecting the client information in these circumstances.
If served with a subpoena for a client’s confidential information there are a few steps an attorney should initially undertake. An Oregon attorney should first contact the Professional Liability Fund (PLF). Under current PLF policies, the PLF will provide a consultation for attorneys who have received subpoenas to testify or to provide client files relating to former or current clients. Additionally, an attorney should immediately contact the client to determine whether the client provides consent to the disclosure or whether they desire the confidences to be maintained. Assuming confidentiality is desired, both the attorney and the client may separately move to quash the subpoena, with the client as intervenor in the matter.
The question then becomes how to best protect the client’s confidences and secrets in the face of a subpoena. The first part of this article outlines the attorney’s ethical duty to make all non-frivolous arguments in opposing a subpoena for client confidences, the second part highlights the best legal strategies for prevailing on a motion to quash a subpoena for client confidences, and in conclusion we offer several practical tips for maintaining client confidentiality during the representation so as to have the strongest legal arguments if faced with subpoena for client confidences and secrets.
Notably, ORPC 1.0(f) encompasses both information protected by the attorney-client privilege (client confidence), as well as any other client information that the client has requested to be kept confidential and of which disclosure would negatively impact the client (client secrets). Thus, the duty to protect information provided to an attorney extends beyond information protected by the attorney-client privilege, and in fact has been interpreted very broadly by the Oregon Supreme Court to include information to the public record. The Oregon Supreme Court saw fit to provide specifically that this duty encompasses “other information gained in a… professional relationship that the client has requested to be held inviolate or the disclosure of which… would be likely to be detrimental the client.” An attorney would therefore violate ORPC 1.6 and 1.0(f) if he or she disclosed this information without the client’s consent.
Accordingly, when faced with a subpoena that requires disclosure of client confidences, an attorney has an ethical obligation to limit the subpoena on all available grounds and may not reveal a broad range of information relating to the representation of a client until ordered to do so by a court of appropriate tribunal.
Attorneys typically have several legal bases for opposing a subpoena for client confidences. In addition to relying on the ethical rules prohibiting the disclosure of client secrets, an attorney should also assert attorney-client privilege and work-product protections as appropriate when moving to quash. In arguing that materials or testimony sought are protected by the relevant privilege, protection or ethical rule, counsel may need to request in camera review of any underlying documents and attorney affidavits for the judge to make any necessary factual determinations regarding the claims of confidentiality. In camera review does not waive any privilege or protection.
Of course, an attorney will be most likely to prevail in quashing a subpoena when all client confidences have been maintained to the greatest degree possible throughout the representation; however, an effective advocate must be prepared to present the strongest legal arguments for maintaining confidentiality. To review the basic legal doctrines protecting client confidences, attorney-client privilege protects confidential communications between attorney and client made in order to obtain legal assistance. In Oregon, attorney-client privilege is established by Rule 503 of the Oregon Evidence Code, while the federal rule is grounded in the common law. It is well-established that “voluntary disclosure to a third party waives the attorney-client privilege even if the third party agrees not to disclose the communications to anyone else.” The privilege is not waived, however, by disclosures made between counsel, counsel’s representatives, the client, and client’s representatives.
Work product protection shields from the discovery tangible and intangible materials prepared by a party or a party’s representative in anticipation of litigation. The doctrine encompasses “documents and tangible things” and “opinions and impressions” of attorneys and their representatives. Indeed, because intangible work product often includes attorney opinions, impressions, legal theories and conclusions, it is often afforded heightened protection under both Oregon and federal law.
In many instances, there will be a challenge to the privilege when a third party is present during the communication between counsel and client. In that case, an adversary will argue that what is being sought by subpoena has been voluntarily disclosed to third parties and is therefore not protected by attorney-client privilege. For example, and adversary would argue that the presence of the client’s brother at the client meeting waived attorney-client privilege as to what was discussed at the meeting.
While Rule 503 protects only those communications that the lawyer and the client treat as confidential, the rule and its commentary expressly contemplate that effective representation sometimes requires the inclusion of certain third parties in confidential lawyer-client communications. Specifically, Rule 503 defines “confidential communication” to include those communications between a lawyer and client and other persons “to whom disclosure is in furtherance of the rendition of professional legal services to the client.” The rule’s commentary expressly anticipates that such other persons will include family members, business partners, and others whose presence during the lawyer-client communication may be necessary to further the interest of the client in the consultation with his attorney, especially when the subject matter of the communication is a matter of joint concern with the other person. Note, however that the commentary’s list of person that could be considered necessary to the furtherance of legal services is not exhaustive, and arguments could be made that a wide variety of individuals are necessary to best provide counsel with the information counsel needs to effectively represent the client.
A similar issue arises when counsel has provided materials containing client confidences to individuals retained by counsel to assist in the furtherance of legal advice, such as accountants, public relations firms and other consulting experts. Adversaries will surely argue that such documents, including drafts of documents ultimately intended for public disclosure, are not privileged. Attorney client privilege, however is held to cover communications made to certain agents of an attorney, including accountants hired to assist in the rendition of legal services.  As to such agents, “[w]hat is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”  Accordingly, “[i]nformation provided to an accountant by a client at the behest of his attorney for the purposes of interpretation and analysis is privileged to the extent that is imparted in connection with the legal representation.” This analysis has been extended in other jurisdictions to include communications between counsel and public relations firms, when the public relations firm had been hired by counsel and had a sufficiently close nexus to the attorney’s role in advocating on behalf of the client before a court or other decision-making body.
Attorneys will rarely provide tangible work product directly to adversaries. The closer question becomes when an attorney has provided materials related to client confidences to a third party and whether that disclosure has made it more likely for a potential adversary to obtain the information.
For example, courts have split on whether materials prepared in anticipation of litigation, but provided to independent auditors to assess litigation risk, waives the work-product protection. In Medinol Ltd. v. Boston Scientific Group, the court found that work-product protection for board minutes discussing outside counsel’s internal investigation had been waived by the disclosure to auditors because the auditor necessarily performed an independent watchdog function, and then therefore no common interest existed between the auditor and company. Conversely, in Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc., the court found that disclosure of internal investigative reports to an independent auditor did not waive work-product protection because the auditor was not an adversary or conduit to a potential adversary. the Allegheny court noted the different outcome in Medinol and explained that Medinol turned on the fact that there was no pertinent litigation purpose in providing the board minutes to the auditor. The Allegheny court rejected this approach, and held that no common litigation purpose between the client and the third party was needed, but instead it was enough that “they both seek to prevent, detect, and root out corporate fraud.” Notably, the Allegheny court also explained that the auditor was under an ethical and professional obligation to maintain confidentiality, and therefore was little likelihood that the material would be disclosed to a true litigation adversary. Accordingly, when arguing that providing tangible work product to a third party has not waived work-product protection, counsel should focus on any common interest between the client and the third party and the facts surrounding the disclosure, including whether any confidentiality agreement was entered into or was required under the professional standards of the third party.
Further, forcing counsel to play the role as witness interferes with counsel’s role as officer of the court, Accordingly, practitioners should zealously defend against such a subpoena and argue that the facts an attorney would be called upon to testify to regarding any client meeting or witness interview are inextricably linked with her mental impressions and other work performed in her role as counsel, and are therefore protected work product.
Notably, however, an attorney facing a subpoena for client confidences should not abandon opposition to the subpoena because the client has disclosed the confidences to third parties inconsistent with maintaining attorney-client privilege or work-product protection. A client’s disclosure of the secrets to others does not waive his counsel’s independent duty to preserve those secrets. ORPC 1.6 offers a broader and different protection of confidential communication that does the evidentiary rule of privilege. Waiver or inapplicability of the privilege does not allow the lawyer to disclose other client information that the client has asked be kept secret or that would embarrass or injure the client if revealed.
Whether a court will find persuasive the argument that ethical rules protect the information sought by an adversary, and therefore any such efforts and compelled disclosure should be rejected, may depend on the context in which the client information is being sought. For example, a pre-existing statutory duty to provide information that is covered as a client secret has been found to trump and ethical rules requiring confidentiality, while a subpoena for an attorney’s testimony has been found to be “unreasonable or oppressive” when compliance with the subpoena would potentially destroy the attorney-client relationship based on the relevant ethical rules.
Of course, the best defense to any subpoena for client confidences is to anticipate that current and future adversaries may seek information that an attorney may presume to be protected, including an attorney’s recollection of client meetings, witness interviews and internal investigation reports. Well-prepared practitioners will implement case management strategies that contemplate the contours of the applicable legal and ethical doctrines related to confidentiality. As practical matter, that means educating the client as to the importance of confidentiality using care when disclosing confidential materials to any third parties, and being aware of the potential for becoming a witness when attending meetings with clients and third parties. Counsel should also clearly define at the outset the purpose behind any third parties’ being present at client meeting and whether materials provide to third parties are for the furtherance of legal advice and are intended to remain confidential.
 See In re Bergeson, 425 F.3d 1221, 1226 (9th Cir. 005) (noting that the district court found that the attorney-client relationship would be destroyed if the attorney were forced to testify at grand jury because the attorney would become a witness against her client in violation of ORPC Rule 3.7).
(6) to provide the following information in discussions preliminary to the sale of a law practice under Rule 1.17 with respect to each client potentially subject to the transfer: the client’s identity; the identities of any adverse parties; the nature and extent of the legal services involved; and fee and payment information. A potential purchasing lawyer shall have the same responsibilities as the selling lawyer to preserve information relating to the representation of such clients whether or not the sale of the practice closes or the client ultimately consents to representation by the purchasing lawyer.
 See ABA Formal Op. 94-385 (1994); Helen Hierschbiel, Client Information Subpoenas, Oregon State Bar Bulletin, June 2008 (noting that although Oregon has no relevant case law or ethics opinions directly on point “many authorities have concluded that the duty of confidentiality compels lawyers who are faced with a subpoena or request for client information to assert on behalf of the client all non-frivolous claims that the information is protected from disclosure” and it is safe to assume the same is true in Oregon).
 Although not the subject of this article, counsel for clients under criminal investigation should additionally assert, as applicable, their client’s state constitutional right to counsel under Article I, section 11 and the related federal constitutional rights under the Fifth, Sixth, and Fourteenth Amendments when moving to Quash a subpoena for client confidences, whether the subpoena stems from civil or criminal proceedings.
 Frease v. Glazer, 330 Or.364 (2000) (in camera review is appropriate where the applicability of a privilege or privileges is at issue).
 Frease v. Glazer, 330 Or.364 (2000) (stating that in camera review does not destroy privilege).
 Fisher v. United States, 425 U.S. 391, 403 (1976), citing 8 J. Wigmore, Evidence § 2292; see also OEC Rule 503.
 Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991); see also OEC Rule 511.
 See Kirkpatrick, Oregon Evidence, § 503.14 (5th ed. 2007) (work product includes communications in anticipation of litigation whether or not reduced to writing); State v. Bockorny, 125 OR. App. 479, 485-86 (1993) (Bockorny I) (protection applied to attorney’s discussions of opinions and theories), on recons. 126 Or. App. 504 (Bockorny II), rev. den. 319 Or. 150; (1994). See also Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (recognizing work-product privilege for memoranda, statements and mental impressions of attorneys); Wright & Miller, Federal Practice and Procedure, § 2024 (2d ed. 1987)(West 2008) (“‘[i]t is clear from Hickman that work product protection extends to both tangible and intangible work product’”) (quoting In re Cendant Corp. Securities Litigation, 343 F.3d 658, 662 (3d Cir. 2003)).
 See ORCP 36B(3) (“the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney… concerning the litigation” even when substantial need and undue hardship are shown); Wright & Miller, Federal Practice and Procedure, § 2024 (since intangible work product includes thoughts and recollections of counsel, it is often eligible for the special protection accorded opinion work product).
 OEC 50391)(b). The definition in its entirety reads: “Confidential communication means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id.
 See OEC Rule 503, comment (“The rule allows some disclosure beyond the immediate circle of lawyer and client their representatives without impair confidentiality, as a practical matter. It permits disclosure to persons to whom disclosure is in furtherance of the rendition of professional legal services to the client, contemplating that these will include a ‘spouse, parent, business associate, or joint client.’”); see also Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984) (holding that presence of adult defendant’s father in conference between defendant and attorney to provide “support and guidance” was consistent with intent to make communications confidential and therefore did not destroy privilege).
 See State v. Jancsek, 302 Or. 270, 274 (1986) (“Lawyers can act effectively only when fully advised of the facts by the parties whom they represent[.]”); State v. Durbin, 335 Or. 183 (2003) (“The purpose of the… privilege ‘is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.’”) (quoting State ex rel OHSU v. Haas, 325 Or. 492, 500 (1997) (quoting Upjohm Co, v. United States, 449 U.S. 383, 389 (1981)).
 United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).
 See In re Grand Jury Subpoenas Dated march 24, 2003 Directed to (a) Grand Jury Witness Firm and (b) Grand Jury Witness, 265 F.Supp.2d 321, 326 (S.D.N.Y 2003) (holding that confidential communications between public relations firm and counsel were protected by the attorney-client privilege to the extent that they took place for the purpose of giving or receiving legal advice); but see Calvin Klein Trademark Trust v. Wachner, 124 F.Supp.2d 207 (S.D.N.Y. 2000) (holding that a draft press release and accompanying memo requesting comment from counsel prepared by public relations firm was not expert or legal advice and was, therefore, discoverable).
 Note, however, that the majority view is that a non-party to current litigation cannot assert work production in that litigation. See Wright & Miller, Federal Practice and Procedure, § 2024 (Documents prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3) even though the person may be a party to a closely related lawsuit in which he will be disadvantaged if he must disclose in the present suit.).
 See Wright & Miller, Federal Practice and Procedure, § 2024.
 Goff v. Harrah’s Operating Co., 240 F.R.D. 659, 661-62 (D. Nev. 2007) (internal quotation marks omitted); see also United States v. MIT, 129 F.3d 681, 687 (1st Cir. 1997) (stating that “work product protection is provided against ‘adversaries,’ so only disclosing material in a way inconsistent with keeping it from an adversary waives work product protection”).
 214 F.R.D. 113, 116-176 (S.D.N.Y. 2002).
 229 F.R.D. 441 (S.D.N.Y. 2004).
 Hickman v. Taylor, 329 U.S. 495, 510 (1947).
 See State v. Keenan/Waller, 307 Or. 515, 519 (1989).
 See In re Lackey, 333 Or. 215, 227 (22) (stating that “even if the information was no longer privilege because its prior, authorized disclosure… it still could be held a “secret” if the client had requested that it be held inviolate or if the disclosure would be embarrassing or likely be detrimental to the client.”).
 United States v. Blackman, 2 F.3d 1418 (9th Cir. 1995).
 In re Bergeson, 425 F.3d 1221 (9th Cir. 2005).


034 Pa. Code § 131.58. Informal conferences.
(a) Under section 402.1 of the act (77 P. S. § 711.1), the parties upon, or after, filing a petition may agree to participate in an informal conference.
(b) All parties shall agree to participate in the informal conference.
(c) The request for the informal conference shall be recorded on a form prescribed by the Department and filed with the judge to whom the pending petition has been assigned.
(d) If no petition is pending, a petition and corresponding request for the informal conference shall be filed with the Department on a form prescribed by the Department.
(e) The informal conference will be governed by the instructions and procedures specified on the form prescribed by the Department and by section 402.1 of the act.
(f) The request shall be served on all parties and the adjudicating judge.
(g) Subsections (a)(f) supersede 1 Pa. Code § § 31.2131.23 and 35.11135.116.
The provisions of this § 131.58 issued under the sections 401.1, 435(a) and (c) and 1608 of the Workers Compensation Act (77 P. S. § § 710, 991(a) and (c) and 2708); section 2205 of The Administrative Code of 1929 (71 P. S. § 565); and section 414 of The Pennsylvania Occupational Disease Act (77 P. S. § 1514).
The provisions of this § 131.58 adopted December 6, 2002, effective December 7, 2002, 32 Pa.B. 6043; amended December 19, 2014, effective December 20, 2014, 44 Pa.B. 7837. Immediately preceding text appears at serial pages (346002) to (346003).


text:
COMMONWEALTH vs. MATTHEW G. LAVOIE.
Constitutional Law, Public trial, Jury, Waiver of constitutional rights, Assistance of counsel. Practice, Criminal, Public trial, Empanelment of jury, Waiver, Assistance of counsel. Jury and Jurors. Waiver.
This court concluded that counsel may waive, with or without a criminal defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy [86-89]; further, here, counsel's waiver of a defendant's right to a public trial during jury selection by failing to object to a court room closure did not constitute ineffective assistance, where it was a tactical decision that was not manifestly unreasonable when made, in that counsel provided a clear explanation of his practice of not objecting to the exclusion of family members or supporters of his clients in the court room during jury selection, including his concerns regarding family members sitting near potential jurors, the court officers' responsibilities, and the risk that family members could be a distraction [89-91].
INDICTMENTS found and returned in the Superior Court Department on May 31, 2001.
A motion for a new trial, filed on December 31, 2007, was heard by Kenneth J. Fishman, J.
Edmund D. LaChance, Jr., pro se.
Richard C. Felton, pro se.
Timothy J. Cruz, District Attorney, & Mary Lee, Assistant District Attorney, for District Attorney for the Plymouth District.
Donald A. Harwood for Committee for Public Counsel Services.
IRELAND, C.J. We granted the Commonwealth's application for further appellate review to consider whether a Superior Court judge properly denied the defendant's motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The Appeals Court concluded that the defendant's right to a public trial was violated, reversed the denial of the defendant's motion, and vacated the judgment. Commonwealth v. Lavoie, 80 Mass. App. Ct. 546 , 547 (2011). Because we conclude that counsel may waive a defendant's right to a public trial during jury selection without express consent and, in the circumstances here, that counsel's decision was a reasonable tactical decision, we affirm the denial of the defendant's motion for a new trial.
Facts and procedure. In 2003, the defendant was convicted of murder in the second degree, and the Appeals Court affirmed the conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. Commonwealth v. Lavoie, 67 Mass. App. Ct. 1114 (2006).
In 2007, in light of a decision by a Federal court, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when court officers excluded his family from the court room during jury selection and his counsel failed to object. [Note 1] The trial judge conducted an evidentiary hearing on the defendant's motion on August 28 and September 11, 2008. In his written findings of fact, rulings of law, and order, the judge found the following facts.
At the motion hearing, defense counsel testified to his reasons for not objecting, which the judge implicitly credited. Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with "court officers who he perceived engaged in a difficult job" or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant's mother "was an emotional individual [who would] be a distraction." Although defense counsel had no specific recollection of court officers excluding the defendant's family during jury selection and did not discuss this issue with the defendant, "he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B."
defendant's Sixth Amendment rights, which were not waived. [Note 3] The judge also noted that, in accordance with Owens v. United States, 483 F.3d 48 (1st Cir. 2007), he would have allowed family members in the court room "once prospective jurors began to leave" and the need for the exclusion "dissipated."
However, the judge also reasoned that because the defendant had not raised any issue concerning the denial of his right to a public trial until this new trial motion, the issue to be decided was whether justice had been done. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The judge concluded that there was no miscarriage of justice because closing court room 12B during jury selection did not materially impact the case or verdict and that defense counsel's failure to object to the closure was a reasonable tactical decision. [Note 4] He denied the defendant's motion for a new trial. The defendant appealed. A divided Appeals Court concluded that the defendant's right to a public trial had been violated. Commonwealth v. Lavoie, supra at 547.
Discussion. A defendant has a constitutional right to a public trial, which includes the jury selection process. Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 106 (2010), citing Presley v. Georgia, 130 S. Ct. 721, 723-724 (2010) (right to public trial granted by First and Sixth Amendments to United States Constitution). The right to an open court in criminal proceedings is "an effective restraint on possible abuse of judicial power," In re Oliver, 333 U.S. 257, 270 (1948), which functions for "the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned." Waller v. Georgia, 467 U.S. 39, 46 (1984).
trial." Taylor v. Illinois, 484 U.S. 400, 418 (1988). See United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (trial court has latitude to balance Sixth Amendment right to counsel with needs of fairness and efficiency of trial process). Counsel is best equipped to make "[n]umerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance." Gonzalez v. United States, supra at 249. These choices, which depend "upon tactical considerations of the moment and the larger strategic plan for the trial," promote a fair trial process. Id. (where counsel gives express consent, magistrate judge may preside over jury selection process in felony criminal trial).
The defendant argues that the judge was correct to conclude that the defendant had not waived his right to a public trial because "there was no explicit waiver by the defendant or his attorney, and . . . defense counsel could not waive his client's rights without ever discussing the issue of his right to a public trial with him." The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right. The Commonwealth argues that counsel may waive the defendant's right to a public trial without the defendant's personal consent, and asserts that where a defendant has waived a right, no constitutional violation has occurred.
Here, the defendant, through his counsel, waived his right to a public trial during jury selection. This tactical decision is in defense counsel's purview to manage the conduct of the trial. See Gonzalez v. United States, supra at 249-250; Taylor v. Illinois, supra at 418 ("The adversary process could not function effectively if every tactical decision required client approval"). The issue is whether that waiver constituted ineffective assistance.
The standard of review for unpreserved errors in noncapital murder cases is whether there was a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). [Note 11] "[W]hen the claim of ineffectiveness is predicated . . . on counsel's failure to object to something that occurred at trial," Commonwealth v. Azar, 435 Mass. 675 , 686 (2002), we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974), because, "whether we view the unpreserved claim of error . . . [by] utilizing the substantial risk of a miscarriage of justice standard, or . . . by focusing on counsel's ineffectiveness in failing to object to the error, our approach is essentially the same, and . . . the result would be the same." Commonwealth v. Azar, supra at 686-687.
at the time it was made. Commonwealth v. Burgos, 462 Mass. 53 , 70, cert. denied __ S. Ct. __ (2012).
The defendant agrees that the standard for ineffective counsel set forth in Commonwealth v. Saferian, supra, applies. However, he asserts, in essence, that he is entitled to a new trial because the denial of his right to a public trial was structural error and claims that the United States Court of Appeals for the First Circuit held that "a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice." See Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007).
The defendant confuses the nature of the prejudice discussed in the Owens case. In that case, the issue of court room closure also was not objected to at trial or raised in the defendant's direct appeal, but raised in a motion for postconviction relief. However, the procedural similarity between that case and the one here ends at this point.
[Note 1] The record is not clear, but the case was either Owens v. United States, 483 F.3d 48, 66 (1st Cir. 2007) (trial judge abused discretion in not holding evidentiary hearing concerning possible court room closure), or Owens v. United States, 517 F. Supp. 2d 570, 577 (D. Mass. 2007) (on remand, motion for new trial granted where counsel ineffective for failing, inter alia, to object to court room closure).
[Note 2] Jury selection took place on a Thursday and the following Monday. On the intervening Friday, the judge heard argument on a motion by the Commonwealth. Family members were present during the hearing. At no time were any members of the family disruptive when they were in the court room.
[Note 3] The judge found that "the public was explicitly denied access to the courtroom during the entirety of the jury selection process."
[Note 4] The judge stated that defense counsel also had accounted for every other strategic decision he made, such as routinely informing defendants of their right to be present at sidebar and of the potential negative impact of doing so.
[Note 5] To satisfy the four-part test concerning court room closure set forth in Waller v. Georgia, 467 U.S. 39, 48 (1984), " the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced,  the closure must be no broader than necessary to protect that interest,  the trial court must consider reasonable alternatives to closing the proceeding, and  it must make findings adequate to support the closure." Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 107 (2010), quoting Commonwealth v. Martin, 417 Mass. 187 , 194 (1994).
[Note 6] Where a judge has not determined closure necessary, excluding family members from jury selection constitutes, at minimum, partial closure of the court room. Commonwealth v. Martin, supra at 195 (proceedings typically "may not be closed to the family and close friends of the defendant"). See, e.g., Owens v. United States, 517 F. Supp. 2d at 574-575 (family members' exclusion from court room during jury selection constituted closure).
[Note 7] The defendant claims defense counsel's decision was, however, "thinly reasoned."
[Note 8] There are two types of waiver: procedural waiver of a claim, and waiver of a right. A procedural waiver occurs "when a litigant fails to raise at trial or on appeal a claim that he could have raised." Commonwealth v. Edward, 75 Mass. App. Ct. 162 , 165 (2009). A waiver of a right "involves the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right." Black's Law Dictionary 1580 (6th ed. 1990). See Commonwealth v. Alphas, 430 Mass. 8 , 22 n.1 (1999) (Greaney, J., concurring). The parties' first argument concerns waiver of a right. The defendant argues ineffective assistance of counsel, discussed infra, because he asserts that his counsel's failure to object waived a claim.
[Note 9] See, e.g., Commonwealth v. Lavoie, 80 Mass. App. Ct. 546 , 556 n.12 (2011) ("right of public trial . . . can be waived only with the defendant's personal, knowing assent"); Commonwealth v. Edward, supra at 173 & n.13.
[Note 10] Other jurisdictions have also concluded that counsel may waive a defendant's right to public trial during jury selection without the defendant's express consent. See, e.g., Berkuta v. State, 788 So. 2d 1081, 1082 (Fla. Dist. Ct. App. 2001) (defense counsel effectively waived defendant's right to public trial by consenting to court room closure); People v. Vaughn, 491 Mich. 642, 658 (2012) (right to public trial during jury selection is not within limited class of constitutional rights that require a waiver to be personal and knowing).
[Note 11] Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 118 (2010), is factually distinct from this case in at least one important respect: Cohen's defense counsel objected to the court room closure at his trial. Because closure of the court room was an objected-to structural error, it was "not susceptible to harmless error analysis," and the defendant was granted a new trial. Id. at 105, quoting Commonwealth v. Baran, 74 Mass. App. Ct. 256 , 296 (2009).
[Note 12] See Commonwealth v. Dyer, 460 Mass. 728 , 737 (2011), cert. denied, 132 S. Ct. 2693 (2012) (new trial denied where facts of jury selection did not suggest "a substantial likelihood a miscarriage of justice occurred"); Horton v. Allen, 370 F.3d 75, 82-83 (1st Cir. 2004), cert. denied, 543 U.S. 1093 (2005) (no ineffective assistance of counsel where defense counsel's agreement to closed jury selection was objectively reasonable strategy). Cf. Commonwealth v. Baran, supra at 293-294 (new trial affirmed where defense counsel's unreasonable strategic choices, including not protecting the defendant's public trial right, resulted in "cascading and pervasive error").
[Note 13] Because defense counsel's conduct does not fall below that of an ordinary, fallible lawyer, we need not reach the second part of the test for ineffective assistance of counsel, i.e., whether his conduct prejudiced the defendant by depriving him "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974).

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text:
MATTHEW E. CARDOZA & another vs. FRANK LEVERONI, administrator.
Gift. Mortgage, Of real estate: discharge. Trust, What constitutes.
a right to maintain a suit in equity to enjoin the foreclosure of the mortgage by the administrator of his estate. Although no particular form of words is necessary to create by declaration a trust in a note secured by a mortgage of real estate, a mere executory purpose to do so is not enough.
An imperfect gift cannot be interpreted to be a declaration of trust.
Where the owner of a note secured by a mortgage of the maker's real estate, while the note and mortgage were in the possession of an agent of the owner together with a signed but unacknowledged and unrecorded assignment of them by the mortgagee to the agent, made statements to the mortgagor which plainly showed that he considered that the mortgagor had paid enough on the debt, that he considered the mortgage paid and that he intended to make a transfer of the title in the future by discharging it, but died without having done so, such facts are not sufficient to show a complete declaration of a trust of the note for the benefit of the mortgagor.
BILL IN EQUITY , filed in the Superior Court on August 9, 1917, alleging that the defendant, as administrator of the estate of one Mary De Castro, was in possession of a mortgage upon certain real estate owned by the plaintiffs, which he intended to foreclose, contending that there was a balance due thereon; that the defendant's intestate previous to her death had made a gift to the plaintiffs of the balance due on the mortgage. The prayers of the bill were that the defendant be restrained from foreclosing the mortgage and be ordered to execute and deliver a discharge of it.
The suit was referred to a master. Material findings of the master are described in the opinion. The suit was heard upon the pleadings and the master's report by Jenney, J., who ordered the report confirmed and the bill dismissed with costs. The plaintiffs appealed.
W. H. Lewis, (I. H. Fox with him,) for the plaintiffs.
S. L. Bailen, (F. Leveroni with him,) for the defendant.
interest may appear. On the following day Miss De Castro signed and delivered to Miss Cass an assignment of the mortgage, which never was acknowledged or recorded, and an order on the Cardozas to pay her the interest and principal of the mortgage when due. The order and assignment were executed solely for the purpose of authorizing Miss Cass to collect the interest or principal which Miss De Castro might demand of the mortgagor.
The master found that when these instruments were signed Miss De Castro was "undecided as to whether or not she would ask the Cardozas to pay anything further toward the balance then remaining due on the mortgage, but felt that they should pay at least $500 in order to entitle them to a release from all further obligation thereunder, and so expressed herself to Miss Cass;" that in November of the same year, when Miss Cass asked Miss De Castro what, if anything, she was to do with the Cardoza' mortgage, Miss De Castro "replied by the single word, 'Wait';" that after the papers were signed, Miss De Castro began to regret her action and to distrust Miss Cass; that she became hostile to her and this hostility lasted until the death of Miss De Castro, although "Miss Cass at no time did anything to justify the attitude which Miss De Castro adopted toward her."
De Castro considered the mortgage paid and intended to deliver the note and mortgage to the plaintiffs; but that no delivery or assignment of the mortgage was made, the mortgage remained undischarged of record, the note and mortgage were in the possession of Miss Cass until the death of Miss De Castro, and no request was made to deliver them.
From the master's findings it is clear that Miss De Castro intended to absolve the Cardozas from further payment and to make a gift to them of the note and mortgage; but this intent was never carried out. The gift was not perfected. The note remained in the possession of her agent and there was no delivery of the instruments: her purpose was never executed. There was no consideration to support the parol promise to make the gift; and words alone, without a delivery, are insufficient to complete it. The contemplated gift to the Cardozas rested in the intention of Miss De Castro to transfer the title in the future. "An intent to give is not a gift; nor is an executory agreement or promise without consideration a gift." Gerry v. Howe, 130 Mass. 350. Graver v. Graver, 24 Pick. 261. Buswell v. Fuller, 156 Mass. 309. Duryea v. Harvey, 183 Mass. 429. A gratuitous promise to discharge a debt does not extinguish it. Although the intestate intended to discharge the debt, her intention never became effective. See Weber v. Couch, 134 Mass. 26; Smith v. Johnson, 224 Mass. 50.
that Cardoza had paid enough and that she considered the mortgage paid are insufficient to establish a trust; and if she contemplated the making of a gift in the future, a trust does not arise from this circumstance; for an imperfect gift cannot be converted into a declaration of trust. In the case of a voluntary disposition of property the settlor must complete the transfer in order to make it binding upon him; and if it is intended that the settlement is to be perfected as a gift, the court will not make it operative as a trust. "If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." Milroy v. Lord, 4 DeG., F. & J. 264, 274. Welch v. Henshaw, 170 Mass. 409.
We find nothing in the Massachusetts cases cited by the plaintiffs contrary to what is here decided. If anything is to be found in the decided cases of other jurisdictions, in conflict with the well settled law of this Commonwealth which governs the case at bar, we must decline to follow them.
It follows that, as there was no perfected gift, nor a sufficient declaration of trust, the plaintiffs cannot prevail.

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§ 437-1 Findings and limitation on number of taxicab licenses.
§ 437-2 Findings and limitation on number of livery licenses.
§ 437-4.1 License required for use of vehicle for sightseeing service.
§ 437-6 License application and issuance; conditions.
§ 437-8 Renewal and surrender of license.
§ 437-9 Driver's license; record of trips; identification on cards.
§ 437-10 Transferability of licenses.
§ 437-11 Revocation and suspension of license.
§ 437-15 Reduced rates for senior citizens.
§ 437-16 Excess rates prohibited.
§ 437-17 Rates to be displayed.
§ 437-18 Solicitation of passengers.
§ 437-20 Penalties for offenses.
Editor's Note: The title of this chapter was amended to add sightseeing buses 6-12-2007, effective 6-20-2007.
It is hereby found and declared that the taxicab business in the City of Buffalo provides an important part of the transportation facilities of said City and the service rendered by said business is a matter of public concern and interest.
A study and survey of the business points to the conclusion that the public cannot properly be served and the business itself cannot operate in an orderly and appropriate manner without regulation of the business and the limitation by the City of the number of taxicabs using the streets.
Taxicabs now in use and licensed are operated principally by fleet owners and by owners of single or comparatively few taxicabs. To preserve an equitable ratio of taxicabs operated by the two classes of owners and to prevent a monopoly of the business by a limited number of owners, the number of licenses which may be issued is hereby fixed as follows: maximum total fleet available is 525 taxicabs.
If a fleet operator sells any of his licensed taxicabs to an individual operator, the number of licensed taxicabs assigned hereinbefore to fleet operators shall be deemed reduced accordingly and the number of licensed taxicabs hereinbefore assigned to individual operators shall be increased accordingly. However, no such sale shall be permitted unless such sale is recommended by the Commissioner of Permit and Inspection Services and approved by the Common Council.
It is hereby found and declared that the livery business in the City of Buffalo provides an important part of the transportation facilities of said City and the service rendered by said business is a matter of public concern and interest.
Months of discussions, public hearings and investigation lead to the conclusion that the operation of liveries must be regulated to protect the interests of the public. To enable both livery and taxicab businesses to operate in an orderly manner, there must be a limitation by the City of the number of livery cars using the City streets. The number of livery licenses in effect at any one time shall not exceed 325.
Liveries are principally owned by fleet owners and by owners of single or comparatively few livery cars. To maintain an equitable ratio of liveries operated by the two classes of owners and to prevent a monopoly of the business by a limited number of owners, the number of licenses which may be issued is hereby fixed as follows: maximum total fleet available is 325 livery cars.
If a fleet operator sells any of his licensed liveries to an individual operator, the number of licensed liveries assigned hereinbefore to fleet operators shall be deemed reduced accordingly and the number of licensed liveries hereinbefore assigned to individual operators shall be increased accordingly. However, no such sale shall be permitted unless such sale is recommended by the Commissioner of Permit and Inspection Services and approved by the Common Council.
The Commissioner of Police of the City of Buffalo.
An individual or individuals who operate pursuant to federal law governing communications on two-way radios and dispatch various liveries and/or taxicabs to locations pursuant to requests by potential passengers.
A person licensed to drive a taxicab or livery in the City of Buffalo.
A person, firm or corporation owning and operating five or more taxicabs or liveries.
A person, firm or corporation owning and operating fewer than five taxicabs or liveries.
A passenger automobile with an interior seating capacity for seven or fewer passengers which transports fares for hire. However, a livery service shall not secure business by cruising the streets or by soliciting fares in public places. A "livery" may have the word "livery" and the name of the owner or company on the vehicle. A "livery" shall not, however, have placed upon it a dome light or other lights located on the roof of the vehicle or the words "taxi," "taxicab" or words of similar import or any other distinctive or unusual equipment, device, design, color, numbers or lettering liable to deceive the public that such a vehicle is a taxicab.
Includes any person, firm, corporation or association owning and operating one or more taxicabs or liveries.
A person who owns a taxicab or livery and drives his own vehicle exclusively.
Includes individuals, firms and corporations.
A motor vehicle used to provide a guide service or tour which seats eight or more passengers, operating for hire by an individual or group at a fixed price on a fixed route in the City of Buffalo to a place or places of interest within the City of Buffalo.
Any individual whose function is to drive a sightseeing bus as herein defined within Chapter 437 for the purpose of providing a guide service or tour.
A passenger automobile with a seating capacity in the interior thereof for seven or fewer passengers, operated for the purpose of transporting persons for hire from points of origin within the City of Buffalo which either: cruises the streets of the City of Buffalo for the purpose of securing passengers; or receives calls from individuals or from dispatchers for the purpose of transporting passengers for hire; or is parked in a space as provided for in § 437-19 of this chapter.
A mechanical instrument or device by which the charge for hire of a taxicab or livery may be mechanically calculated either for the distance traveled or waiting time, or both, and upon which such charge is indicated by means of figures.
Editor's Note: The definition of "Director," which immediately followed this definition, was repealed 12-9-2003, effective 12-19-2003.
No person shall use any motor vehicle in the conduct of a taxicab or livery business unless a license therefor issued by the Commissioner of Permit and Inspection Services is in full force and effect.
No person shall use any motor vehicle in the conduct of a sightseeing service unless a license therefor issued by the Commissioner of Permit and Inspection Services is in full force and effect.
No taxicab or livery shall be licensed unless the same is equipped with a taximeter of approved design and in good working order.
Application for a taxicab or livery license shall be made to the Commissioner of Permit and Inspection Services by the owner, in writing, duly sworn to, upon forms to be furnished by the Commissioner of Permit and Inspection Services, and shall show the owner's name and address, the motor number and make of the vehicle, the year manufactured, the New York State license number attached thereto, the size of the tires used and the make, type and number or other descriptive designation of the taximeter, together with an accurate and complete statement of the color of said taxicab or livery and, if more than one color, a description of the color design thereof. An application for a livery license shall indicate if said vehicle operates through a dispatcher and, if so, the identification of said dispatcher service. The Commissioner of Permit and Inspection Services may require such further information as he deems necessary.
If it shall appear that the color design stated in the application for the license of any taxicab or livery, if said taxicab or livery is of more than one color, or if it appears at any time, upon inspection of any taxicab or livery, that the color design thereof is so similar to the color design of other taxicabs or liveries as to be liable to deceive the public, then the Commissioner of Permit and Inspection Services is authorized to withhold a license to said applicant or to revoke or suspend the license thereof until the color design of said taxicab or livery has been changed or altered so as not to resemble the color design of any other taxicab or livery operated under separate ownership and so as not to deceive the public. Any applicant for a license for a taxicab or livery of more than one color shall be entitled to use the color design thereof, provided that such applicant establishes to the satisfaction of the Commissioner of Permit and Inspection Services that such applicant was using said color design upon his taxicab or livery at the time of the enactment of this chapter and was the first to continuously use said design in the City of Buffalo or, in case of a new design, that the same is not being used by any taxicab or livery owner. After being licensed, no color design of any taxicab or livery shall be changed without the written approval of the Commissioner of Permit and Inspection Services.
An owner who drives his own cab or livery exclusively may place the words "owner driver" on the outside of the front doors thereof immediately below the windows in letters contrasting strongly with the color of the vehicle, not less than two inches high. However, taxicabs or liveries so marked must be operated by no one other than the licensed owner, under penalty of having the license suspended or revoked.
No person shall drive or operate upon the streets of the City any passenger automobile with a seating capacity in the interior thereof for seven or fewer passengers and registered as an omnibus by the State of New York, while such vehicle has a taximeter or unusual or distinctive equipment, device, design, color, numbers or lettering liable to deceive the public that such vehicle is a licensed taxicab or livery as above provided, unless such vehicle is duly licensed under this section. A livery shall not have a dome light or other lights located on the roof of the vehicle or the words "taxi," "taxicab" or words of similar import on the vehicle.
The mileage rates fixed by this chapter shall be displayed on each taxicab and livery so as to be readily visible to passengers entering the vehicle. The rates shall be painted in a contrasting color on both rear doors of all licensed taxicabs and liveries in letters and figures which shall be not less than 3/8 of an inch in height.
A taxicab or livery may have illuminated advertising billboards, placards or similar devices, no larger than 18 inches high by four feet six inches long, attached securely to the roof or trunk of the vehicle, not to exceed the length or width of such roof or trunk. The advertising displayed upon livery vehicles shall not include the words "taxi" or "taxicab" or words of similar import.
Unless specifically prohibited by any rule or regulation of the New York State Vehicle and Traffic Law, advertising wheel hubcaps no larger than 17 inches in diameter, attached to the wheel hub, may be utilized for advertising purposes as limited herein. Such wheel hubcaps may be illuminated by a nonblinking light that is removable by the taxi driver. Such advertising may only be used for a trial period of 45 days from the ratification of this section. After such time, such advertising shall be prohibited in the absence of a further amendment to this section.
Effective May 1, 2007, the maximum allowable vehicle age in order to obtain a taxicab and/or livery vehicle license shall be fifteen model-year age from the most current licensing year.
Effective May 1, 2008, the maximum allowable vehicle age in order to obtain a taxicab and/or livery vehicle license shall be twelve model-year age from the most current licensing year.
Effective May 1, 2009, the maximum allowable vehicle age in order to obtain a taxicab and/or livery vehicle license shall be ten model-year age from the most current licensing year.
No person shall be denied a license for a taxicab or livery by reason of having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of good moral character when such reason is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless: (a) there is a direct relationship between one or more of the previous criminal offenses and the personal transportation for hire industry; or (b) the issuance of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Application for a sightseeing bus license shall be made to the Commissioner of Permit and Inspection Services by the owner, in writing, duly sworn to, upon forms to be furnished by the Commissioner of Permit and Inspection Services, and shall show the owner's name and address, the motor number and make of the vehicle, the year manufactured, and the New York State license number attached thereto. The Commissioner of Permit and Inspection Services may require such further information as he deems necessary.
The owner of any licensed sightseeing bus shall securely affix to such licensed sightseeing bus on the outside thereof at the rear of the vehicle, in a conspicuous place, a metal plate, showing the number assigned to such sightseeing bus.
Said partition shall be framed totally with metal, which frame shall be firmly secured to the center post on each side of the vehicle so that not more than two inches of space remains between the center post and frame nor more than two inches between the frame and the roof. In addition to the above, the space between the seat and center post, extending from the top of the seat to the floor on the driver's side of the vehicle, is to be covered by a shatterproof substance in such a fashion as to prevent a passenger from reaching the driver of said taxicab or livery.
Said partition shall be constructed of an optically clear, shatterproof substance and designed in a way which will afford the driver complete rearview vision.
Said partition shall also be so designed so that the driver can collect fares without leaving the vehicle.
Said partition shall also be installed so as not to cause any added reflections.
All edges or parts of said partition are to be smooth to afford maximum safeguards to passengers.
The holder of a taxicab or livery license shall be permitted to renew the same annually, provided that all ordinance provisions relating thereto are complied with and the application for such renewal is filed with the Commissioner of Permit and Inspection Services not later than May 1 of each year. The motor vehicle to be used must be presented for inspection as provided in § 437-7 of this chapter. If the application for renewal is not made within said time, the holder will be deemed to have abandoned said license, and a license in place thereof may be issued to another applicant as hereinafter provided.
The holder of a taxicab or livery license may voluntarily surrender the same to the Commissioner of Permit and Inspection Services at any time.
If a taxicab or livery license issued to a fleet operator is abandoned or surrendered by the holder or revoked by the Commissioner of Permit and Inspection Services, a license in place thereof may be issued only to a fleet operator, except as hereinafter provided; and, similarly, if a taxicab or livery license issued to an individual operator is abandoned or surrendered by the holder or revoked by the Director of Licenses and Permits, a license in place thereof may be issued only to an individual operator whose total taxicab or livery licenses will not be increased to more than four thereby or to a new applicant who will be an individual operator.
In case of the disuse for a taxicab or livery purposes of any licensed taxicab or livery, the holder of the license may have the same transferred to another vehicle with the approval of the Commissioner of Permit and Inspection Services and the payment of a transfer fee as provided in Chapter 175, Fees.
A fleet operator, any of whose taxicab or livery licenses are abandoned, surrendered or revoked so that the number of his licenses remaining in force are less than five in number, shall thereupon become an individual operator. Any person not now holding a taxicab or livery license desiring to secure a license may annually register his name for such purpose with the Commissioner of Permit and Inspection Services upon payment of a registration fee as provided in Chapter 175, Fees.
A taxicab or livery license may be issued to the applicants so registered in the order of registration in place of any license which is abandoned, surrendered or revoked; and in case two or more such persons were registered on the same day, such licenses shall be awarded to them by lot; provided, however, that the total number of taxicab or livery licenses held by fleet operators shall not be increased by such award. In case of the sale of a licensed taxicab or livery, the license therefor may be transferred to the new owner if he complies with all ordinance requirements and the number of taxicab or livery licenses held by fleet operators is not increased thereby.
The holder of a taxicab or livery license shall be permitted to renew the same annually, provided that all ordinance provisions relating thereto are complied with and the application for such renewal is filed with the Commissioner of Permit and Inspection Services not later than May 1 of each year.
Any person who desires to act as a driver of a taxicab or livery shall make written application to the Commissioner of Permit and Inspection Services for a taxicab or livery driver's license, furnishing in such application the information required by the Commissioner of Permit and Inspection Services, including but not limited to the person's correct address, phone number and proof of motor vehicle liability insurance coverage currently in effect and in the amounts prescribed by New York State for omnibus vehicles. Any change in the information provided must be reported to the Commissioner of Permit and Inspection Services within 10 days after the change occurs. Any person applying for a taxicab or livery driver's license must hold a valid chauffeur's license issued by the State of New York and must reside within the County of Erie. The Commissioner of Permit and Inspection Services shall issue to each licensed taxicab or livery driver a badge showing the number assigned to such driver; and the badge, conspicuously displayed, shall be worn by such driver at all times when on duty. Such badge shall remain the property of the City of Buffalo and shall be surrendered upon the expiration or revocation of the driver's license.
Each driver's license shall provide a space wherein the Department of Police shall enter a record of all accidents of any nature and retain a record thereof. Such record shall be given consideration in relation to the renewal, suspension or revocation of the driver's license. The erasure or obliteration of any official entry relating to accidents made upon a driver's license shall be sufficient cause for suspension or revocation of such license.
It shall be the duty of each driver to keep a record, upon forms approved by the Commissioner of Permit and Inspection Services, of all trips made and to file the same with the owner of the taxicab or livery, and such record shall be preserved for at least 60 days.
At the time of the issuance of the driver's license herein provided for, the Commissioner of Permit and Inspection Services shall issue to each licensed driver an identification card containing the driver's license number and his name and address and shall provide space for a small photograph of said licensed driver. Said driver shall provide the Commissioner of Permit and Inspection Services with two copies of said small photograph, one to be affixed to said identification card. Said identification card shall be carried in a suitable frame furnished by the City through the Department of Permit and Inspection Services and shall be hung in the passenger compartment in the rear of the taxicab or livery, together with a card showing the rates of fare, at all times while said driver is on duty. Said identification card and rate card shall be visible to any passenger riding in said vehicle, shall be so placed as to be readable by any passenger and shall have light shining on the same at night. The kind and size of said cards, the writing thereon and the placing and illumination of said cards shall be approved by the Commissioner of Permit and Inspection Services.
Any person who desires to act as a driver of a sightseeing bus shall make written application to the Commissioner of Permit and Inspection Services for a sightseeing bus driver's license, furnishing in such application the information required by the Commissioner of Permit and Inspection Services, including but not limited to the person's correct address, phone number and proof of motor vehicle liability insurance coverage currently in effect and in the amounts prescribed by New York State for omnibus vehicles. Any change in the information provided must be reported to the Commissioner of Permit and Inspection Services within 10 days after the change occurs. Any person applying for a sightseeing bus driver's license must hold a valid chauffeur's license issued by the State of New York and must reside within the County of Erie. The Commissioner of Permit and Inspection Services shall issue to each licensed sightseeing bus driver a badge showing the number assigned to such driver; and the badge, conspicuously displayed, shall be worn by such driver at all times when on duty. Such badge shall remain the property of the City of Buffalo and shall be surrendered upon the expiration or revocation of the driver's license.
At the time of the issuance of the driver's license herein provided for, the Commissioner of Permit and Inspection Services shall issue to each licensed driver an identification card containing the driver's license number and his name and address and shall provide space for a small photograph of said licensed driver. Said driver shall provide the Commissioner of Permit and Inspection Services with two copies of said small photograph, one to be affixed to said identification card. Said identification card shall be carried in a suitable frame furnished by the City through the Department of Permit and Inspection Services and shall be hung in the passenger compartment in the rear of the sightseeing bus, together with a card showing the fixed rates of fare, at all times while said driver is on duty. Said identification card and fixed rate card shall be visible to any passenger riding in said vehicle and shall be so placed as to be readable by any passenger. The kind and size of said cards, the writing thereon and the placing and illumination of said cards shall be approved by the Commissioner of Permit and Inspection Services.
No taxicab, livery or sightseeing driver's license shall be assigned from one person to another. No taxicab, livery or sightseeing bus license shall be assigned from one person to another, and no plate attached to a taxicab, livery or sightseeing bus by the Commissioner of Permit and Inspection Services shall be transferred from one vehicle to another except as otherwise herein permitted.
Any license issued by the Commissioner of Permit and Inspection Services may be revoked or suspended by him for cause.
The fee for a taxicab license and for a taxicab driver's license, including identification card, shall be as provided in Chapter 175, Fees. The fee for a livery license and for a livery driver's license, including identification card, shall be as provided in Chapter 175, Fees. The fee for a sightseeing bus license and for a sightseeing bus driver's license, including identification card, shall be as provided in Chapter 175, Fees. Each such license shall expire on the first day of May annually.
There shall also be paid to the City at the office of the Commissioner of Permit and Inspection Services, upon the issuance of a duplicate identification card to replace a lost, stolen, destroyed or misplaced card, the sum as provided in Chapter 175, Fees.
All fees and moneys received by the Commissioner of Permit and Inspection Services shall be transmitted to the office of the Director of the Treasury of the City for deposit therein in accordance with regulations established by the Comptroller.
No person shall use or permit to be used on any taxicab or livery a taximeter which shall be in such condition as to be more than 5% incorrect to the prejudice of a passenger. No taximeter affixed to any taxicab or livery shall be operated from either rear wheel of such vehicle. Between sunset and sunrise, the face of every taximeter shall be illuminated by a suitable light so arranged so as to throw a continuous steady light thereon and render the figures on such taximeter readily discernible by any passenger. No person shall use or permit to be used a taximeter on which the seal placed by the Director of Licenses and Permits has been broken nor unless its cover and gears are intact.
It shall be unlawful to change the size of the front wheels or tires of a taxicab or livery or the gears operating the taximeter or to change said instrument from one vehicle to another without a reinspection and approval of the Commissioner of Permit and Inspection Services.
Hourly rates: $24 per hour for one or more passengers.
Mileage rates: $2.30 for the first 1/6 mile or less; $0.40 for each additional 1/6 mile or less; $0.40 for each one minute of waiting time, including time lost in traffic delays.
No additional or extra charge shall be made for carrying more than one passenger, but all passengers up to the seating capacity of the vehicle shall be carried for the same fare as that above prescribed for one passenger.
Upon demand, the driver of a taxicab or livery shall furnish to the passenger a receipt for the fare paid, showing the name and badge number of the driver.
All disputes as to the lawful rate of fare shall be determined by the police officer in charge of the police station nearest to the place where the dispute arises or occurs; and a failure to comply with such determination, provided that it be in accordance with the rate herein fixed, shall be a violation of this chapter.
The rate charged in the City of Buffalo shall be subject to review and renewal by the Common Council after a period of one year from the effective date of such rate change. During that one-year period, taxicab and livery service providers shall work with the Common Council on improving the quality of service in the City of Buffalo. The amount of improvement and extent of cooperation by the taxicab and livery service providers may be considered in the decision to renew the rate for an additional period of time.
The rate of fare for any sightseeing bus (including all charges) for each fixed route of said sightseeing bus shall be on file with the Office of Licenses and shall be clearly displayed within each sightseeing bus.
Upon producing certification issued by the Mayor's office as to senior citizen status, persons shall be entitled to a ten-percent reduction in the amount of the fare.
No person shall charge, for taxicab or livery service, rates higher than the rates permitted by § 437-14; any person who charges greater rates than the rates so filed for taxicab or livery service in vehicles to which such advertised rates apply shall be guilty of a violation of this chapter.
A card indicating rates allowed to be charged by this chapter, printed in English, shall be furnished by the Commissioner of Permit and Inspection Services and displayed in each taxicab or livery. Such cards, before being used, shall be approved, as to design and size of type used, by the Commissioner of Permit and Inspection Services.
No taxicab driver shall solicit passengers on any street or taxicab stand at a greater distance than 20 feet from his taxicab.
No owner or operator of any taxicab shall occupy with such vehicle for the purpose of securing passengers any other place or stand on any public street or place than those above designated, except that radio-dispatched taxicabs, if not otherwise in violation of parking or standing ordinances, may stand on such main thoroughfares as are listed in Chapter 479, § 479-4, of the Code while awaiting employment or further direction from the radio dispatcher of their employer; except that, to meet special conditions, the Commissioner of Police is hereby authorized to designate additional places where taxicabs may stand while awaiting employment, but the use of such stands shall be subject at all times to the orders of said Commissioner.
No owner or operator of any livery shall occupy with such vehicle for the purpose of securing passengers any area designated by this section as a taxi stand nor any other place or stand on any public street; except that liveries, if not otherwise in violation of parking or standing ordinances, may stand on such main thoroughfares as are listed in Chapter 479, § 479-4, of the Code while awaiting further direction from the radio dispatcher of their employer.
Nothing herein contained shall be construed as prohibiting the temporary occupation of any street in the vicinity of hotels, theaters and places of public entertainment by any taxicab while actually engaged by one or more passengers; provided, however, that, in such case, the vehicle and its operator shall be subject at all times to the orders of the police.
For the purpose of finding a vacant taxicab stand in which to await business or in proceeding to a definite location, a taxicab driver shall proceed with the general flow of traffic and shall not obstruct traffic by slow driving or dilatory tactics and shall not, for said purposes, frequently drive around substantially the same blocks or area. No taxicab driver shall resort to any practice or manner of driving which unnecessarily will add to or tend to cause traffic congestion.
No owner or operator of any livery shall secure business by cruising the City streets or by soliciting fares in public places. In proceeding to a definite location, a livery driver shall proceed with the general flow of traffic and shall not obstruct traffic by slow driving or dilatory tactics and shall not frequently drive around substantially the same blocks or area. No livery driver shall resort to any practice or manner of driving which unnecessarily will add to or tend to cause traffic congestion.
Where a taxicab stand is located in an area regulated by an ordinance prohibiting parking or standing during certain periods, no operator of a taxicab or other vehicle shall permit the same to remain parked or standing in violation of such parking or standing ordinances.
Except as herein otherwise specifically provided, every person who shall in any manner violate any of the provisions of this chapter or who shall charge, take or receive or attempt to charge, take or receive any greater rate or rates of fare or charges than those prescribed by this chapter or who shall fail to do any act required by this chapter to be done by him shall be liable to a fine or penalty of not more than $1,500 or to imprisonment for not more than 15 days, or to both such fine and imprisonment, for each offense.
In addition to the fines and penalties herein fixed, the Commissioner of Permit and Inspection Services may, for cause, revoke any license issued hereunder, in accordance with the Charter of the City.
The provisions of this chapter shall have no application to vehicles while in use at funerals, christenings or weddings.


Mr. Joseph, an inmate in federal prison in Colorado, filed a pro se civil rights complaint under 42 U.S.C. § 1983, that asserts several claims, which can grouped into four categories: (1) He was sexually harassed by Defendant Juanita McCulley, a secretary in the education department where Mr. Joseph worked, in violation of his Eighth Amendment right to be free from cruel and unusual punishment and in violation of his Fifth Amendment right to equal protection; (2) the Defendants unlawfully retaliated against Mr. Joseph by (a) terminating him from his job in the education department, (b) removing him from the prison GED program, (c) denying him access to the law library and (4) classifying him as in the "red card" high-visibility program; (3) the district court abused its discretion when it refused to allow Mr. Joseph to amend his complaint; and (4) the district court abused its discretion when it refused to appoint counsel for Mr. Joseph.
In his report and recommendation, the magistrate judge determined that the Bureau of Prisons was immune from suit, as were the individual Defendants in their official capacities. The magistrate judge therefore recommended that the claims against the Bureau of Prisons and the individual Defendants in their official capacities be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject jurisdiction. The magistrate judge also recommended that the claims against the individual Defendants in their individual capacities be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief.
We review de novo a district court's dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject jurisdiction. See Redmon ex rel. Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir. 1991). We also review de novo a district court's dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for relief. See Bauchman ex rel. Bauchman v. West High Sch., 132 F.3d 542, 550 (10th Cir. 1997). We construe the pleadings and papers of a pro se appellant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
Mr. Joseph asserted that Ms. McCulley violated his Eighth Amendment rights by subjecting him to sexual harassment: She allegedly touched him several times in a suggestive manner and exposed her breasts to him. "As a threshold matter of law, we must first decide whether [Mr. Joseph] could have suffered, at the hands of corrections officials, any deprivation of his constitutional rights under the due process clause of the Fourteenth Amendment and the cruel and unusual punishments clause of the Eighth Amendment." Harris by and through Harris v. Maynard, 843 F.2d 414, 415 (10th Cir. 1988).
"We agree . . . that an inmate has a constitutional right to be secure in h[is] bodily integrity and free from attack by prison guards." Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993). Further, "because the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the 'unnecessary and wanton infliction of pain,'" that is forbidden by the Eighth Amendment. Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)) (internal quotation marks omitted)); see also Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (recognizing inmates' sexual harassment allegations may be sufficiently serious to state a claim under the Eighth Amendment). "To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused 'pain' and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind." Freitas, 109 F.3d at 1338 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
We agree with the district court that the alleged instances of sexual harassment were not "objectively, sufficiently serious" to demonstrate a use of force of a constitutional magnitude. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). See also, Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997) (noting that sexual abuse by a corrections officer may be cognizable as a violation of a prisoner's Eighth Amendment rights, but ultimately holding that the circumstances alleged by the plaintiff were not "severe enough to be objectively, sufficiently serious") (internal quotation marks omitted). In addition, there is no evidence of deliberate indifference on the part of the Defendants. Cf. Barney, 143 F.3d at 1310 (noting that inmates failed to show deliberate indifference). Finally, as to Mr. Joseph's claim that the unwanted touching caused him emotional distress and violated the Eighth Amendment, the claim is insufficient to implicate the Eighth Amendment.
[J]ail officials [must] provide humane conditions of confinement by ensuring [that] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by taking reasonable measures to guarantee the inmates' safety. To hold a jailer personally liable for violating an inmate's right to humane conditions of confinement, a plaintiff must satisfy two requirements, consisting of an objective and subjective component.
the basis of an Eighth Amendment violation. This inquiry turns not only on the severity of the alleged deprivations, but also on their duration.
Id. at 495 (internal quotation marks and citations omitted).
As to Mr. Joseph's loss of his job and expulsion from the GED program, "[p]risoners have no constitutional right to educational or vocational opportunities during incarceration." Wishon v. Gammon, 978 F.2d 446, 450 (8th Cir. 1992); see also Templeman v. Gunter, 16 F.3d 367, 370 (10th Cir. 1994) (stating that "[w]ithout . . . a statute [entitling a prisoner to a prison job], prisoners do not have a constitutional right to employment"). Mr. Joseph states no Eighth Amendment claim.
As to his equal protection claim, "if the state provides educational or vocational opportunities to its prisoners, it cannot deny equal access to such services to all prisoners absent a rational basis." Wishon, 978 F.2d at 449; see also Barney, 143 F.3d at 1312 n.15 ("The Equal Protection Clause in the prison-conditions context is usually invoked to remedy disparities in educational, vocational, and recreational programs offered to male and female inmates.") (citation omitted). There is no evidence that Mr. Joseph was treated differently from other inmates who were similarly situated. Mr. Joseph's equal protection claim also fails.
As to the denial of access to the law library, to state a cognizable claim under Lewis v. Casey, 518 U.S. 343 (1996), Mr. Joseph had to demonstrate an actual injury that hindered his effort to pursue a nonfrivolous legal claim. See id. at 351-53. There is no allegation that Mr. Joseph's ability to litigate this claim or any others have been diminished as a result of the denial of access. In addition, Mr. Joseph points to only one request for law library services. Mr. Joseph's allegations of constitutional deprivations in this regard are unsubstantial.
The Constitution does not entitle an inmate to any particular degree of liberty in prison; thus, changes to an inmate's prison classification do not involve deprivations of liberty. See Templeman, 16 F.3d at 369. Mr. Joseph's classification on "red card" status amounts to a security classification decision, analogous to a transfer to administrative segregation resulting from disciplinary violations. See id.
will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). Moreover, our review of the record fails to reveal the imposition of the "atypical and significant hardship" contemplated by Sandin or procedural irregularities leading to his classification on red-card status placement in administrative segregation. Under these circumstances, there was no violation of Mr. Joseph's due process rights. Nor were his First Amendment or equal protection rights affected. Mr. Joseph has failed to allege or show harm that he has suffered by being placed on red-card status or that similarly situated individuals of different races were treated differently. See Powells v. Minnehaha County Sheriff Dep't, 198 F.3d 711, 712 (8th Cir. 1999).
Mr. Joseph argues the district court erred in denying his motion to appoint counsel. "We review the denial of appointment of counsel in a civil case for an abuse of discretion." Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In considering whether to appoint counsel, the factors the district court should consider include "'the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims.'" Id. at 979 (quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir.1991)). After careful review of the record, we conclude the district court did not abuse its discretion in denying Mr. Joseph's motion to appoint counsel.
We review the district court's denial of a motion to amend a complaint for an abuse of discretion. See Lambertsen v. Utah Dep't of Corrections, 79 F.3d 1024, 1029 (10th Cir.1996). The magistrate judge noted that Mr. Joseph offered no new facts to include in his complaint to cure any deficiencies and that he did not tender an amended complaint to the court. The district court did not abuse its discretion in denying Mr. Joseph's motion to amend.
For the foregoing reasons, we affirm the district court's order granting the Defendants' motion to dismiss and we deny Mr. Joseph's motion to proceed in forma pauperis.