Giving Thanks for Civil Legal Aid – MLAC at BBA Council

As we gear up for the coming state-budget season, and prepare once again to advocate for civil legal aid, the BBA was pleased to welcome Lonnie Powers, Executive Director of the Massachusetts Legal Assistance Corporation (MLAC), Deb Silva, Director of the Equal Justice Coalition (EJC), and Lauren Song, Housing Attorney with Greater Boston Legal Services to its November Council meeting.  Powers began his presentation with a brief history – established in 1983, MLAC’s mission has always been to ensure that low-income people with critical non-criminal legal problems have access to legal information, advice, and representation.  It is the largest funding source for civil legal aid program in Massachusetts, distributing money to fifteen legal aid organizations throughout the state, largely based on the regional population of income-eligible people.


MLAC Executive Director Lonnie Powers

The BBA has long taken pride in supporting MLAC’s work, both through our partnership in the EJC and also through our funding advocacy.  This effort resulted in the release of the BBA’s Investing In Justice report in late 2013 following nearly 18 months of study by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  The report revealed that 64% of income-eligible individuals who seek legal aid are turned away due to lack of resources.  This circumstance has a significant impact, not only on these individuals, but also on the justice system as a whole.  A survey of judges conducted by the Task Force revealed that roughly 6 out of 10 judges felt that a lack of representation negatively impacts the courts’ ability to ensure equal justice.  Many also reported that the increasing number of pro se litigants has bogged down court procedures.  Finally, the report demonstrated that increased investment in civil legal aid can result in cost savings to the Commonwealth of anywhere from $2 to $5 for every $1 invested.  So not only is increasing funding for legal aid the right thing to do, it is also the fiscally responsible thing to do.

With this report as the basis for our advocacy, we were pleased when the Legislature demonstrated their support for legal aid, and their understanding of the Task Force report’s findings, by appropriating $2 million in additional funds, bring the total MLAC line item to $17 million – a substantial increase in a year when the overall budget growth was otherwise quite constrained.  Powers revealed that the MLAC board approved a request this year of an additional $10 million, to bring total MLAC funding to $27 million.  He explained that the $2 million increase enabled MLAC to handle almost 1,100 more cases to the benefit of some 4,300 people.  With potentially almost one million people qualifying for legal aid, there is still a very long way to go to serve the need and bring down that nearly-2/3 turn-away rate, but we are headed in the right direction.  Furthermore, this requested $10 million investment will likely return at least $20 million in savings by avoiding back-end costs such as police, shelter, and medical expenses to the state in domestic violence, homelessness, and other cases.

Lauren Song spoke next.  She is an attorney for the GBLS Housing department, which she describes as requiring near-24/7 work.  She told a story of her representation of the families and individuals affected by an East Boston building collapse.  She explained her calm reaction to a text late one Saturday afternoon – her experience with the current homeless crisis in Boston makes this sort of thing a routine occurrence.  In this case, 22 adults and 9 children from 11 households were evacuated when the building collapsed.  Instead of repairing the building to let these people continue living there, developers attempted to evict them and turn the buildings into luxury condos.  GBLS is fighting for their rights – to return to their homes and, in the meantime, to gain shelter housing.
MLAC at Council cropped 1Deb Silva then presented on the EJC campaign.  Walk to the Hill, the annual lobby day for civil legal aid will take place on January 28th at the State House.  Many law firms send teams, and hundreds of lawyers visit the State House to hear speeches from government leaders and speak to their elected officials about why civil legal aid is important.  Here is our write-up from last year’s program.

The EJC campaign is also responsible for broader advocacy, such as sign-on support letters from law firm managing partners, general counsels of major Massachusetts businesses, and law school deans.  It also solicits support from a coalition of individuals and organizations, including social services providers that refer clients to legal aid and recognize its importance.  This year, they are also working on putting together teams from local law schools to participate in the walk.  Finally, they are facilitating the involvement of local bar associations, particularly in the western part of the state for a “Talk to the Hill,” where lawyers who live and work too far from the city to participate in the walk, call their elected officials.

We look forward to all of these efforts coming together and hope that they will achieve the BBA and MLAC’s shared goal of an additional $10 million in funding for civil legal aid.  We hope you will join us at this year’s Walk to the Hill, and that you will be on the lookout for various budget alerts from January through July during the lengthy budget process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Forum Follow-up: Report on the BBA Chapter 180 Working Group Forum

A couple of weeks ago we previewed our Chapter 180 Working Group Forum.  The Forum was held at the BBA on November 12 and we couldn’t be happier with the outcome.  Around forty attendees representing a broad array of stakeholders took part.  There were representatives from law firms of all sizes, academia, organized labor, health care, state legislators’ offices, a large number of non-profit and charitable organizations and related trade groups as well as government agencies including the Attorney General’s and Secretary of State’s Offices.

Ch. 180 pic 2

By way of review, nonprofits are a major part of the Massachusetts economy.  According to a 2012 Bureau of Labor Statistics report, they employ 17.7% of the state’s total private work force, one of the highest such percentages in the country.  Chapter 180 is the principal corporate statute that applies to nonprofits in Massachusetts.  It has existed generally in its current form since the early 1970s, and the last round of minor revisions were completed in early 1991.  In the late 1990’s a BBA task force studied Chapter 180, and in 2000 proposed a series of significant amendments to modernize and streamline the law.  Although at that time there was significant consensus on most individual items, there were a few major items that divided practitioners and resulted in putting the entire proposal aside.  Fifteen years later, it is overdue for a fresh consensus look.

As it applies to nonprofit corporations, Chapter 180 largely cross-references governance provisions from Chapter 156B, the outdated business corporation law.  In 2004, Chapter 156D, which is based on the American Bar Association Model Business Corporation Act, replaced Chapter 156B as the business corporation statute.  However, Chapter 156B remains on the books, mainly because of the cross-references contained in Chapter 180 and for its application to insurance and banking corporation laws.

Many Massachusetts nonprofit leaders, as well as lawyers who practice in this field, are frustrated with this construct.  Not only are the laws regarding nonprofits cumbersome and difficult to find, cross-reference, and interpret, but they are also seriously outdated.  For example, Chapter 180 does not address modern technology, such as email communication, or the current understanding of fiduciary obligations.  Other provisions permit overbroad access to members’ personal contact information and make mergers and amendments to articles of organization exceedingly difficult in certain circumstances.  For practitioners who deal with nonprofits only occasionally, the existing laws can easily be subject to misunderstanding or misinterpretation.  For non-lawyer directors, officers, and organization members, the primary audience for the statute, it is an exemplar of obscurity and inscrutable legalese.

In 2008, the ABA updated its Model Non Profit Corporation Act in 2008 (3rd ed.).  This update and other past versions of this model act serve as a principal source for many state nonprofit corporation laws.  Several states, including New York and California, have recently enacted significant updates to their nonprofit corporation laws.

Ch. 180 pic 1

At the forum, the Working Group Co-Chairs Melissa Sampson McMorrow, of Nutter, McClennen & Fish, and Michael Malamut, an attorney-at-law with a practice in nonprofit governance, discussed this history as well as the Working Group’s subgroups, which are studying various materials with an eye towards updating the statute.  The subgroup issues include:

  • History of Amendment Proposals to Chapter 180
  • Useful provisions of the American Bar Association Model Nonprofit Corporation Act (3d ed. 2008, with 2013 & 2015 amendments), including modifications in the D.C. Code §§ 29.401 et seq., Nonprofit Corporation Law (2010)
  • Thorough review of Chapter 180, with concerns raised by practice
  • Review of parallel provisions of Chapter 156B cited in Chapter 180 and Chapter 156D
  • Useful provisions in Chapter 156D not addressed in the current cross-references to Chapter 156B in Chapter 180

They then opened the floor for discussion.  They discussed a range of policy issues such as:

  • Mergers of charitable organizations, especially with out-of-state organizations
  • Voting powers of directors
  • Defining members and membership
  • Regulation when there is a change of a charitable or primary purpose
  • Ability of board of directors to consider larger societal impacts in their decisions, even if they are at odds with the purposes of the organization
  • How to revise Ch. 180 without losing the wealth of existing case law
  • Duties of boards to a family of charities
  • How labor and trade organizations work under Ch. 180

And these are only the beginning.  Since the forum, we have already received follow-up contacts, both from those who attended and would like to remain engaged with our effort and from others who were unable to attend but would like more information.

There is no question the Working Group will have a busy year trying to address all stakeholder concerns and improve the law.  The Working Group wlecomed the opportunity for people outside the Working Group to share their views and help shape its pracitce.  We look forward to gathering more feedback from Forum attendees and others as we continue to move forward with this process and will keep you updated on all of the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association


BBA Helps Achieve Access to Justice for Abused Youths

It has been a momentous last few weeks for our Amicus Committee.  Most recently, they worked on a brief in the Recinos v. Escobar case that ultimately played a major role in achieving a positive outcome facilitating access to justice.  Recinos, which was initially before the Appeals Court, and was taken up sua sponte by the Supreme Judicial Court (SJC) in expedited fashion, deals with the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

In brief, since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there is a small class of individuals – roughly estimated to be about 60 in number — that would otherwise qualify for SIJ status, but may be barred from doing so because the Probate and Family Court will not make a finding because they are aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extends equity jurisdiction to hear these cases, but this is not uniform and judges have no guidance on the matter.

The brief, which we signed onto with a coalition of concerned organizations and individuals, argues that the Probate and Family Court has equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argues that the pathway to permanent legal residency for immigrant youths requires the state courts to play an essential role and that the Probate and Family Court has equity jurisdiction over these cases.  First, it argues that the Court’s equity jurisdiction is not limited by statute and makes the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy.  The brief further argues that children who have been abused, abandoned, or neglected are dependent on the court to make such a finding since they have been mistreated and because such a finding is required to qualify for SIJ status.

It is also important to note that the BBA has previously considered this issue.  In 2014, the BBA Council approved a bill, entitled “An Act relative to abused, abandoned, or neglected immigrant juveniles,” which would have statutorily extended Probate and Family Court jurisdiction to this discrete group of individuals.  The BBA’s Immigration Committee was the force behind this action, and current Co-Chairs Iris Gomez and Prasant Desai, along with former Co-Chair Bill Graves, were a great help in vetting the current case.

Thus, the brief here was a means to the same end, and footnote 15 on pages 43-44 of the brief addresses the interplay of the case and legislation.  It notes that the Legislature is currently considering this session’s refiled versions of those bills (H1418/S740 – currently before the Joint Committee on the Judiciary) and argues that the fact that there are proposed bills pending “is not determinative of whether the court has equity jurisdiction without legislative action.  In light of inconsistent positions held by lower court judges, both routes have been pursued to ensure that these vulnerable youth have the access to the courts they desperately need.”

On Thursday, November 5, the SJC heard oral argument on the case.  The Justices asked a series of tough questions, raising concerns about the circularity of the dependency argument and the appellant’s reliance on case law where the Probate and Family Court exercised equity jurisdiction under very different factual circumstances.  They also referenced our amicus brief.  Justice Hines explains at about the 12 minute mark that she found the brief “extremely helpful” and noted that she felt the brief clarified the dependency issue.  The Justices also asked about the pending legislation, and we hope that the explanation provided in the amicus brief and spelled out above helped them see the necessity of their action in this case.

As it turned out, on Monday, November 9, the SJC released their order, ruling in line with the brief – that the Probate and Family Court does have equity jurisdiction to decide the case, and remanding to that court for further proceedings on an expedited basis, so that the appellant may have time to apply for SIJ status before her 21st birthday.  We applaud the SJC for their work on this case, first taking it up sua sponte, and then handling it in such an expedited manner in order to assure justice for an individual in need and clarify the law for a small class of dependent youths.  We would also like to thank former BBA President Mary Ryan, and Cynthia Guizzetti, Nutter McClennen & Fish, LLP, and their team for drafting the brief and working with us to facilitate our participation.

In all, the BBA was proud to be involved with this case and couldn’t be more pleased with the outcome.  We look forward to keeping you up to date on all the fine work of our Amicus Committee as they continue to review and consider cases locally and nationally.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Expanding the Conversation: BBA Chapter 180 Working Group Forum

This week we want to take the opportunity to highlight the exemplary work of a BBA group operating somewhat behind the scenes to serve the Commonwealth.  The Chapter 180 Working Group has been meeting for a number of months now, discussing an overhaul of the law governing Massachusetts nonprofit corporations.  The Working Group has accomplished a lot over the last few months, but they still have a long way to go.  Their ultimate goal is to revise the nonprofit corporation law in the most inclusive manner possible with input from all stakeholders.

In furtherance of that end, we are excited to be hosting the Chapter 180 Working Group Forum on Thursday, November 12, 2015, from 3:00 to 5:00 pm at the BBA.  Leaders of the Chapter 180 Working Group will briefly discuss their progress and are eager to hear from forum attendees about their interests and concerns.  We hope that you will join us and help spread the word.  Please click here to learn more and RSVP if you are interested in attending.  The forum is free and open to everyone.

Nonprofits, which include institutions of higher education and many hospitals, are a major part of the Massachusetts economy.  According to a 2012 Bureau of Labor Statistics report, they employ 17.7% of the state’s total private work force, one of the highest such percentages in the country.  Chapter 180 is the principal corporate statute that applies to nonprofits in Massachusetts.  It has existed generally in its current form since the early 1970s, and the last round of minor revisions were completed in early 1991.  Almost twenty-five years later, it is overdue for a fresh look.

As it applies to nonprofit corporations, Chapter 180 largely cross-references governance provisions from Chapter 156B, the outdated business corporation law.  In 2004, Chapter 156D, which is based on the American Bar Association Model Business Corporation Act, replaced Chapter 156B as the business corporation statute.  However, Chapter 156B remains on the books, mainly because of the cross-references contained in Chapter 180 and for its application to insurance and banking corporation laws.  Confused yet?

Many Massachusetts nonprofit leaders, as well as lawyers who practice in this field, are frustrated with this construct.  Not only are the laws regarding nonprofits cumbersome and difficult to find, cross-reference, and interpret, but they are also seriously outdated.  For example, Chapter 180 does not address modern technology, such as email communication, or the current understanding of fiduciary obligations.  Other provisions permit overbroad access to members’ personal contact information and make mergers and amendments to articles of organization exceedingly difficult.  For practitioners who deal with nonprofits only occasionally, the existing laws can easily be subject to misunderstanding or misinterpretation.  For non-lawyer directors, officers, and organization members, the primary audience for the statute, it is an exemplar of obscurity and inscrutable legalese.

Having identified these issues, the Working Group, which is comprised of leading lawyers from many nonprofits and government entities and is co-chaired by Michael Malamut, an attorney-at-law with a practice in nonprofit governance, and Melissa Sampson McMorrow, of Nutter, McClennen & Fish, created a number of sub-groups to examine specific aspects of the issue.  In preparation for the revision, Working Group members looked at the current text of Chapter 180, the language of 156D, the cross-references to 156B, and the ABA’s Model Nonprofit Corporation Act.  They are attempting to identify all the problems with the statute as currently written and devise the best fixes that will maximize the statute’s utility while minimizing disruptions to current practice, existing corporate by-laws, and the surrounding case law.

At the same time, members of the Working Group are continually reaching out to those stakeholders with particular interests in the potential revisions.  They have already met with a number of representatives of Massachusetts nonprofits, including foundations, hospitals, universities, religious groups, social service agencies, cultural institutions, conservation organizations, sports leagues, government employee unions, and business and trade associations.  These meetings have been extremely beneficial in gathering input and determining how best to take on the daunting challenge of redrafting an entire statute, and the chairs anticipate having more similar meetings to come.  Many individuals have expressed their support for the Working Group’s goal and shared their insights on ways to fix the law as well as anecdotes about frustrations caused by Chapter 180’s myriad problems.  The members of the Working Group are working to compile all the information from these meetings as evidence for why the law needs to be changed and also as inspiration for aspects of the law to streamline, modernize, and improve.  The Forum is the next step in these efforts.

As for officials from state government, representatives from the offices of the Attorney General and the Secretary of State are part of the Working Group.  In addition, the Chairs have been in communication with the staff of the state legislature’s Joint Committee on Economic Development and Emerging Technologies and the Executive Office of Housing & Economic Development’s Office for Business Development and International Trade.

So what’s next?  Following the Forum, the Working Group will start the initial drafting of legislation that incorporates all of the concerns they have heard.  Their work so far offers a model for how to pursue major statutory revisions, and we are confident that their reasoned, methodical, and comprehensive process will be effective in producing — and securing consensus around — the right bill for the Massachusetts nonprofit sector, one that can ultimately win approval at the State House.  We look forward to seeing you at the Forum, keeping you updated on the Working Group’s progress, and making Massachusetts, a state known for the significant role of its nonprofits, into a legislative leader in this area.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Raising and Revising the Bar

MW at Council2

We were pleased to have Marilyn Wellington speak to our Council last week about her role as Executive Director of the Board of Bar Examiners (BBE) and how her agency is changing.  The BBE is tasked with being a gatekeeper for admission to the bar in Massachusetts.  As Wellington explained, this is largely a public protection function – to assure that anyone licensed to practice law in Massachusetts meets our high standards for competency and character and fitness.  To achieve these ends for the roughly 2,500-3,000 applicants each year, the BBE administers the bar examination, considers each applicant’s character and fitness, and also reviews the qualifications of several hundred lawyers trying to waive-in from other states.

The BBE Board consists of five members who oversee their policies and processes and also draft the essay questions used in the bar examination.  Board members are geographically diverse and serve five-year volunteer terms.  They are all experienced lawyers with decades of practice in Massachusetts, devoting a significant amount of time to maintain the high caliber of lawyers permitted to practice in the Commonwealth.

After explaining the BBE, Wellington went on to discuss an issue that has been occupying the bar’s attention – bar passage rates.  She reported that the passage rate has dipped in Massachusetts, though less dramatically than it has nationally.  Some explanatory charts are below and law-school specific data is available here.  Note that, at the same time, scores on the Multistate Bar Exam continue to be higher for Massachusetts test-takers than the national average. (Click on the image to enlarge)

10 year result table

10 year result chart


While some have been quick to trace this trend back to a possible decline in the caliber of law school graduates, Wellington was clear that, at most, this cause is one of a multitude of factors.  She explained that another factor may be recent changes in law school curricula.  As firms and clients have pushed for more practice-ready lawyers, law schools have increased practice-style courses and clinics, perhaps at the expense of traditional courses teaching the core principles tested on the bar exam.  This is a fascinating and challenging issue, and one in which the BBA is particularly interested.

The BBA is hoping to do its part to help prepare lawyers for practice and has become increasingly active toward this goal, having recently partnered with all five Boston area law schools, welcoming their students to learn and network at the BBA.  In addition, as you may have heard, BBA President Lisa Arrowood is committed to enhancing lawyer practice readiness and has been the force behind the creation of our Friday Fundamentals programs.  These classes focus on essential skills in core elements of specific practice areas.  They are designed to introduce subject matter to newer attorneys and challenge experienced practitioners who may be looking to review or expand their expertise.

Wellington then spoke on reforms being considered by the BBE.  First, they are considering switching to the Uniform Bar Exam (UBE), with the help of a court appointed committee that includes BBA representative Wayne Kennard, WilmerHale.  The 19 member committee includes representatives from eight Massachusetts law schools, the court, the bar, and the BBE.  They are also looking at a number of programs nationally surrounding bar examination such as the new pro bono requirement in New York and accelerated bar exam programs in place in a number of other states.

The UBE is a two day exam featuring “portable scores,” meaning test takers can bring their scores to other states that use the exam.  It does not test any local law and one portion is a legal skills test, requiring no legal knowledge.  Instead, test takers are given materials and any legal maxims they will need and are tasked with a writing exercise, often a bench memo or memo to a legal partner about the materials.  This style of test is aimed at practice readiness.  An absence of state law testing may make some members of the bar nervous, especially given the focus on state knowledge in many rules (see for example the BBA’s Ethics Committee’s recent comments on proposed changes to the Massachusetts Rules of Professional Conduct Rule 5.5).  At the same time, the memo-style test might be a good way to prepare young lawyers for practice.

Seventeen states currently use the UBE, including New York, a bar considered the gold-standard by many states and foreign practitioners.  One concern is that each state using the UBE sets its own passing score.  This means that a student could fail in one state, but pass in another, resulting in potential “forum shopping” for bar admission.  States also still independently examine all other aspects of the admission process, such as the character and fitness and education requirements.

In sum, we applaud the reasoned approach taken by the BBE.  We are confident that their thorough examination of the bar exam and programs surrounding it will help Massachusetts come to the best outcome – one that will balance legal knowledge, practice readiness, and character and fitness in order to maintain the high quality of practice and commitment to justice we have today.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Repairing the World through Judicial Innovation and Evolution

On Tuesday, Chief Justice Ralph Gants gave his annual State of the Judiciary Address at the MBA’s Bench Bar Symposium in the Great Hall of the John Adams Courthouse.  Attendees such as Speaker of the House Robert DeLeo, Judiciary Committee Co-Chairs Representative John Fernandes and Senator William Brownsberger, Attorney General Maura Healey, Governor’s Chief Legal Counsel Lon Povich, and a host of SJC Justice and Chiefs of the Trial Court departments were there.

Chief Justice Gants began with high-minded principles.  He explained that he sees every court – not just specialty courts — as a problem solver, which he defines as meeting an obligation to repair the world, an obligation met by saving even one life.  No one, he noted, comes before our courts unless they have a problem that cannot otherwise be amicably resolved.  All courts seek to repair the world, one problem at a time – a task that can be accomplished only with the support and assistance of the two other branches of government.

Gants SotJ

The Chief went on discuss two main issues, civil case reforms and justice reinvestment.

Civil Case Reforms

The Courts are intent on changing civil cases, making them more affordable and cost efficient at all levels.  “Slow, expensive litigation,” he said, “is the way of the dinosaur.”  Three changes are coming this winter:

  • A menu of options in Superior Court – parties will soon be able to choose from a number of resolution options. The top option will be the “three course meal” of full discovery and a jury trial.  However, there will be a sliding scale of other options, available only upon the agreement of all parties, which will attempt to bring cases to resolution with greater speed and less expense.  We expect to have an opportunity to circulate these proposals for comment within the BBA before they take effect.
  • More efficient cases – judges will monitor cases more closely to assure that they stay on track. In addition, the SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure will be revising Rule 26 of the Rules of Civil Procedure.  Using the recently revised federal rule on discovery as a model, the Committee will tweak our state rule to encourage discovery proportional to case costs.  We look forward to being part of the review and comment process on Rule 26 as well.
  • Increased number of dedicated civil sessions – the District Court and Boston Municipal Court will, at least partly in response to our comments, introduce more sessions dedicated to civil cases, so that these will no longer be the third priority behind criminal and domestic abuse cases. They will also delay implementing the proposed increase in the procedural amount at these courts until these new sessions are running well and demonstrating that they can more efficiently handle civil cases.

Justice Reinvestment

The Chief Justice shared a number of ways the courts are working to improve criminal practice, with a focus on decreasing recidivism, helping individuals become productive members of society, and using the state’s criminal-justice budget more wisely to help achieve these twin goals.

  • Trial Court departments with criminal jurisdiction have been studying best practices in sentencing and hope to use this information to improve sentencing practices starting this winter. The BBA was represented by Thomas Peisch, Conn Kavanaugh, on the Superior Court Working Group; Daniel Dain, Dain, Torpy, Le Ray, Wiest & Garner PC and Michael Fee, Pierce & Mandell PC on the Land Court Working Group; and Thomas Beauvais and Nigel Long, Liberty Mutual on the BMC Working Group.
  • Chief Justice Gants is committed to following the findings and recommendations of the Council of State Governments, which he, along with the Governor, Speaker, and Senate President, invited to examine the Massachusetts criminal justice system. He cited a fact that the Council had already found – in 2012, 46% of those released from state prison in the Commonwealth went back to the street without either parole or probation supervision.  This is one of the highest unsupervised release rates in the country and may have the effect of increasing recidivism rates.
  • The Chief offered a number of ideas on justice reinvestment such as increasing the availability of good time credits, promoting step-down and re-entry programs, and removing mandatory minimum sentences, or at least their prohibition on the aforementioned programs. He also expressed the belief that the Commonwealth may benefit from decreasing sentence lengths and enhancing post-incarceration supervision.  Even though the Commonwealth’s incarceration rate is amongst the lowest in the country, it still does not compare favorably to history (the incarceration rate now is three times higher than it was in 1980 despite the fact that the rates of violent crime are now 22% lower and property crime are now 57% lower), or the world (if Massachusetts were a separate nation, it would have the eighth highest incarceration rate).
  • We need to reconsider all of the fees we are imposing on criminal defendants. We are charging them each hundreds, and sometimes thousands of dollars – fees that amount to more than $30 million per year, when many of these individuals have little or nothing to spare.  In addition, the task of collecting these fees has fallen to probation officers, which distracts them from their far more important function of helping probationers succeed in re-entering society.

Chief Justice Gants ended his speech with some notes on access to justice and jury voir dire.  On the former issue, he touted the recent opening of four Court Service Centers and the adoption and beginning implementation of a language access plan to help non-English speakers understand court processes, forms, and procedure.  The Courts are constantly exploring ways to assure that everyone can meaningfully access their services.

Finally, he talked about how the SJC responded to the bar with the adoption of attorney voir dire.  We were pleased to be involved in this process, as current BBA Vice-President Mark Smith, Laredo & Smith, LLP, served on the SJC Committee on this issue.  Over the past year, the Court issued a standing order governing lawyer participation in voir dire and designed a pilot project on panel voir dire, which is in use by 15 Superior Court judges.  They also recruited 30 Superior Court judges to study attorney-conducted voir dire.  The Courts have trained judges and gathered data on the impact of the new measures.  In all, the Courts continue to develop, grow, and adapt to this new aspect of practice.

As always, Chief Justice Gants clearly has his finger on the pulse of the judiciary.  We are excited to learn of the changes that are coming and to reflect on the strides the Courts have made in the last year.  We look forward to working with the judiciary to bring the Chief’s visions to reality, as the Courts innovate and thrive.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Massachusetts leads, SCOTUS follows? Retroactivity in Juvenile Life Sentencing

Earlier this week, the US Supreme Court heard oral argument in the case of Montgomery v. Louisiana.  The transcript is available here.  The case addresses, along with jurisdictional concerns, whether the Supreme Court’s 2012 ruling in Miller v. Alabama has retroactive effect.  In criminal cases, the Supreme Court’s rulings generally do not have retroactive effect unless the new rule is considered “substantive.”  Miller declared mandatory life sentences without the possibility of parole for homicides committed by minors to be in violation of the 8th Amendment prohibition on cruel and unusual punishment, and required judges in such cases to consider the defendant’s youth, background, and capacity for rehabilitation, as well as the nature of the crime, before handing down a sentence without parole.  Miller followed Graham v. Florida (2010) which prohibited life sentences without the possibility of parole for non-homicide offenses.

Montgomery brings to SCOTUS the case of Henry Montgomery, a 69 year old who has been in prison since he was 17 years old for murdering a sheriff’s deputy in Baton Rouge.  He argued in state court that the Miller holding must be applied retroactively, thereby making him eligible for parole.  The case rose to the Louisiana Supreme Court, which held against Montgomery.  The US Supreme Court granted certiorari in late March of this year.  Louisiana argued in part that the Miller holding was not substantive enough to have retroactive effect, because life without parole sentences are still available for juveniles in homicide cases as long as they are not mandatory.

Should the Court find for Montgomery, about 1,500 prisoners convicted of homicide as juveniles and given mandatory life sentences without the possibility of parole would suddenly gain parole eligibility.  While the Supreme Court is considering the case, analysts suggest that they may still skirt the question of Miller’s retroactive effect, waiting until a prisoner files suit under a federal habeas corpus statute rather than in state court.

Massachusetts dealt with this issue over the last couple of years.  In response to Miller, the SJC held in late December 2014 in Diatchenko v. District Attorney that all life without parole sentences for juveniles were unconstitutional in Massachusetts, even if imposed by a judge at her discretion. This decision came only weeks after the BBA approved principles opposing these sentences.  In Diatchenko, the justices considered – as had the Miller court — current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  But they reasoned that the proper conclusion is that a judge cannot possibly ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment.

The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, became immediately eligible for parole.  In addition, the Diatchenko holding also applied retroactively to other juvenile life without parole convicts who had served at least 15 years, making roughly 65 inmates suddenly parole eligible for the first time.  “Eligibility for parole” merely entitles an inmate to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed, has taken full responsibility for his or her actions, and poses no threat to public safety.  However, the ruling did eventually result in the release of at least a few individuals in Massachusetts who had been serving these sentences.

Diatchenko also invited the Legislature to revise its juvenile-murder sentencing scheme to come into line with the ruling which stated that juvenile offenders must receive a “meaningful opportunity” for parole, without defining the appropriate length of the mandatory portion of a sentence before eligibility.  As we described, after a contentious hearing in May 2014, lawmakers agreed on a compromise bill, H4307, that would permit parole eligibility after 25-30 years for juveniles convicted of premeditated murder and after 30 years for juveniles found guilty of murder with extreme atrocity or cruelty.  Juveniles convicted of felony murder would be parole eligible after 20 to 30 years.  The bill was enacted in July 2014.

We are proud that the Massachusetts Judiciary and Legislature successfully addressed the retroactivity issue in the wake of Miller, and we hope that the U.S. Supreme Court will use Montgomery as an opportunity to set the record straight for the individuals in other states who are serving sentences under a sentencing scheme now recognized as unconstitutionally cruel and unusual punishment.  A decision is expected by late spring, and we will keep you posted on the latest developments with this case.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Protects Individual Rights, Opposes Conversion Therapy

We are proud to announce here that the BBA Council recently voted unanimously to support H.97: An Act relative to abusive practices to change sexual orientation and gender identity in minors.  Read our press release here.  This is only the latest step in the BBA’s long history of advocacy to assure equality and individual rights, including supporting the 1989 “Gay Rights Bill” and working with the Massachusetts Transgender Political Coalition on the Transgender Equal Rights Bill which was enacted in 2012.  We are also proud of our longstanding relationship with the LGBTQ Bar Association, which has enjoyed affinity bar status at the BBA for over 20 years.

What is Conversion/Reparative Therapy?

Also called ex-gay therapy or sexual orientation change efforts, these are all various “treatments” that purport to change sexual orientation and gender identity based on the scientifically discredited premise that being LGBTQ is a psychological defect or disorder.  The techniques associated with conversion therapy are often violent (e.g., electric shocks, induced nausea or vomiting) and psychologically damaging.  Furthermore, the American Psychological Association (APA) has long held that gender identity and sexual orientation are at the core of who we are as individuals; they are not mental disorders. Treating them as such runs against best practices in medicine. In fact, a 2007 APA task force report found not only clear evidence that conversion therapy does not work, but also some significant evidence that it is harmful.

As a result, medical and child welfare experts nationally and locally have condemned conversion therapy, declaring it ineffective, physically and mentally damaging, and antithetical to the current scientific understanding of gender identity and sexual orientation.  In spite of this, the practice is currently statutorily illegal only in California, New Jersey, Oregon, and Washington, D.C.  Courts in the Third and Ninth Circuits have upheld these bans.

What are we doing about it?

The bill we support, H.97, bars licensed health care professionals from engaging with minors in therapeutic practices aimed at either changing or “healing” the minor’s sexual orientation, in particular same-sex attraction, or eliminating the minor’s sincerely held conviction that their birth assigned gender is different or inappropriate from their actual gender identity.  The bill also requires state mandatory reporters to report suspected incidences of these practices and makes advertising them  a violation of consumer protection laws.

Health care professionals – including licensed social workers, child psychologists, school social workers, therapists and other state-licensed professionals – are expected to assist their clients, in these instances by helping them learn to accept their individual gender identity and sexual orientation, not to cause further harm or suffering. This bill ensures that medical and psychological treatment for our children will follow the highest ethical standards.

Even though we are not aware of these practices currently going on in Massachusetts, there have been some recent news stories of their occurrence in other states, most notably a recent case in New Jersey, Michael Ferguson v. JONAH, wherein a conversion therapy provider was found guilty of committing consumer fraud in a case involving an adult who underwent such treatment.

The Massachusetts bill is formally supported by at least ten groups with interests ranging from child welfare to health care to human rights, including, GLAD, and the Children’s League of Massachusetts.  In addition, the American Bar Association recently approved a resolution and report recognizing the right of LGBTQ people to be free from attempts to change their sexual orientation or gender identity and urging all federal and state governments to enact laws prohibiting state-licensed professionals from using conversion therapy on minors.

In July, the Boston City Council unanimously passed a resolution supporting the bill, and shortly thereafter it had a public hearing before the Joint Committee on Children, Families, and Persons with Disabilities.  At this hearing, 19 people testified in support and 8 people testified in opposition.  The opposition was comprised of concerned individuals and out-of-state groups, such as the Family Research Council (anti-gay-marriage and pro-life organization in Washington, D.C.) and the Florida Alliance of Therapy and Choice.  Supporters included the American Counseling Association, National Association of Social Workers, Boston Children’s Hospital, GLBT Caucus, Massachusetts Health Council, Transgender Political Coalition, and the Anti-Defamation League.  Representative Kay Khan, the bill’s sponsor also testified.  Read her testimony here.

The BBA looks forward to advocating for the passage of H.97, which has already been favorably reported out of the Joint Committee on Children, Families, and Persons with Disabilities, and will keep you updated on the bill’s progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.


The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.


Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.


We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”


Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.


The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association