Immigration Update: Public Charge, the Travel Ban, “Birth Tourism”, and More

Public Charge Update

The BBA has been closely following the developments of the Department of Homeland Security (DHS) public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join.

In August 2019, the Trump administration proposed a change to the regulation known as the “public charge” rule. This regulation would deny green cards to immigrants deemed likely to become reliant on various forms of social welfare. Under current policy, only immigrants who are primarily dependent on cash benefits or in government-funded, long-term institutional care would be considered public charges. The proposed rule would dramatically expand the list of public benefits that could lead to an immigrant being considered a “public charge”, including the perceived likelihood that that person will require public benefits in the future, even if they are not currently using them. The Migration Policy Institute study that we cited in our September 2019 Immigration Update found that this regulation would disproportionately impact immigrants from Mexico, Central America, Africa, and Asia.

Throughout the past several months, the rule was challenged in several federal courts and more than a dozen state attorneys general, including Massachusetts AG Maura Healey, under the argument that it discriminates against low-income immigrants and immigrants of color. One of the major concerns was the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and thereby imposing a huge cost on local and state governments. Furthermore, this concern is heightened by the fear and misconceptions held by the affected population, which may lead people to withdraw from, or not apply to, programs and benefits that are not covered by the rule. These impacts will hit entire families, including spouses and children who may be citizens.

In November, we published an Issue Spot blog post citing the temporary injunctions that judges from New York, California, and Washington had issued to prevent the rule from taking effect on October 15, 2019, as planned. In January, Twitter, Microsoft, and other tech companies signed on to an amicus brief in support of appealing the public charge rule. 

On January 27, 2020, the Supreme Court voted 5 to 4 to set aside the preliminary injunction from New York that prevented the public charge rule from taking effect nationwide. This was the last of the three district court nationwide injunctions standing, which means that the rule can now go into effect nationwide while litigation continues[1]. This ruling was extremely disappointing for immigrant advocates and civil rights organizations who have been working diligently to litigate against it. The rule is now expected to be implemented on February 24, 2020.

There are still appeals concerning the reasoning of the injunctions that are ongoing. The appellate cases are moving on expedited schedules and could be decided within a couple of months, and positive appellate court results could expand the injunction beyond Illinois. The national Protecting Immigrant Families (PIF) campaign is bringing advocates from around the country together to fight back against the negative effects the public charge rule will have on immigrant families. On February 6, Attorney General Maura Healey joined a coalition of attorneys general in filing two amicus briefs opposing the public charge rule. The briefs “call on the Trump administration to immediately halt unprecedented new rules that direct the State Department to deny green cards and visas to immigrants who are likely to use government assistance programs in the future.” Attorney General Healey said that “we cannot allow these new rules to overturn decades of immigration policy and deprive people of a path to citizenship in our country.”

If you would like to help or to learn more about the potential effects of this regulation, the BBA is hosting a training on March 10. You can also access the following resources:

Iranian Students Turned Away at Boston Logan

Over the past several months and amid the escalation of tension in U.S. foreign policy with Iran, reports indicate that Iranians have been increasingly denied entry at the U.S. border despite having valid visas.

On Monday, January 20, an Iranian student, Shahab Dehghani, was turned away from Logan Airport despite having a valid visa to study at Northeastern University. When he landed in Boston, he was abruptly taken aside by CBP and told that his visa had been revoked without an explanation or the chance to contact an attorney. He was held at the airport overnight for questioning. In the meantime, his lawyers obtained a court order directing the immigration authorities to allow him to remain in the country for 48 hours while his case was reviewed. But Mr. Dehghani had already been put on a plane back to France, just minutes after the court order was issued.

Although officials claimed that there was evidence that Mr. Dehghani could pose a potential security threat, his lawyers questioned the truth of the allegations, given that such a threat would have certainly been uncovered during the months of extensive vetting that he endured before being granted a visa to enter the United States.

Mr. Dehghani is one of at least 13 Iranian students who have been turned away since August at airports across the country despite having valid visas. This raises significant concerns that Iranian immigrants are being treated differently because of their heritage. In interviews with 10 of the Iranian students who have been removed since August, many said that their visas had taken months to be processed, and that they had spent their entire savings, or taken out loans, to pay for plane tickets, entrance exams and university applications. Even those who were not denied entry were extensively questioned for no apparent reason.

Higher education is important to this region and the actions of the Logan Airport immigration authorities have the potential to have a chilling impact on applications to Boston universities. These ramifications may extend beyond colleges and universities to the business sector as a whole. We stand firmly against the policy of denying students access because of their heritage and hope that Boston continues to be a safe and welcoming city for immigrants.

“Birth Tourism” Policy

On January 23, 2020, the Department of State posted a final rule amending its current regulation concerning the issuance of B nonimmigrant visas for individuals on a visit for “pleasure”. The rule amends the Department of State’s regulations on B nonimmigrant visas to clarify that traveling to the United States in order to obtain citizenship for a child by giving birth in the United States, or “birth tourism,” is not a permissible activity for a temporary visitor visa.

The rule outlines that, “under this amended regulation, U.S. consular officers overseas will deny any B visa application from an applicant whom the consular officer has reason to believe is traveling for the primary purpose of giving birth in the United States to obtain U.S. citizenship for their child”.

The Trump administration’s attack on “birth tourism” aligns with his ongoing battle against “birthright citizenship”, the granting of citizenship, under the Constitution, to anyone born in the United States regardless of the parents’ nationality or immigration status. The new rule gives consular officers the authority to reject women they merely believe are pregnant or “likely to give birth” from entering the United States. The rule raises the burden of proof for pregnant women by outlining in writing that giving birth in the country “is an impermissible basis” for visiting the United States. Even if a woman says she is entering the country for medical treatment — a legitimate factor for visa eligibility — she will need to satisfy visa officers that she has enough money to pay for such treatments. She will also need to prove that the medical care she is seeking was not available in her home country.

The State Department has failed to provide an example of how “birth tourism” presented a national security risk, as they argued, and the rule has been criticized by immigrant rights advocates for “turning embassy employees into reproductive policemen”.  

Trump Administration Expands the Travel Ban

In 2017, the Trump administration proposed a travel ban that imposed restrictions on citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Although there was large public outcry against the ban, the Supreme Court allowed the third version of the ban (which spared Sudan and Iraq) to go into effect while legal challenges against it continued. We spoke out against the ban in 2017 and mentioned it explicitly in our 2018 Immigration Working Group Principles, citing its disregard for due process and equal protection rights for immigrants:

“The BBA has long supported measures to uphold due process and equal protections rights and access to counsel for immigrants, and in recent months has spoken out against the “travel ban” that would limit immigration from several Muslim countries; condemned the practice of separation of immigrant families at the border; and opposed proposed changes to “public charge” regulations that would make it more difficult for immigrants to access essential benefits and services.”

BBA Immigration Working Group Principles, 2018.

On January 31, the Trump administration announced that it will extend the travel ban to impose restrictions on six additional countries: Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania. The new order, which will go into effect on February 22, will affect nearly 350 million people, including a quarter of Africa’s population. Unlike the original travel ban, which prohibited citizens of the countries mentioned above from entering the United States, this ban will restrict citizens of Nigeria, Myanmar, Eritrea, and Kyrgyzstan from obtaining immigrant visas and will prevent citizens of Sudan and Tanzania from moving to the U.S. through the diversity visa lottery.

Immigrant advocacy groups are vehemently opposed to the expanded rule. “The ban should be ended, not expanded. President Trump is doubling down on his signature anti-Muslim policy — and using the ban as a way to put even more of his prejudices into practice by excluding more communities of color,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “Families, universities, and businesses in the United States are paying an ever-higher price for President Trump’s ignorance and racism.” The BBA continues to be opposed to the travel ban and the singling out of specific immigrant groups.

In the news

  • Massachusetts Sheriffs Receiving Funds from ICE for Housing Detainees

The Boston Globe recently uncovered that the Commonwealth has received more than $160 million in funding from federal immigration authorities since 2012, “mostly in exchange for keeping and transporting ICE detainees in jails run by four Massachusetts sheriff’s departments”.

The funding in question stemmed from agreements between ICE and the sheriff’s offices for Plymouth, Bristol, Franklin, and Suffolk counties. Suffolk ended its relationship with ICE this past October but the other sheriffs’ offices have defended the arrangements, claiming that their relationships with ICE have made Massachusetts safer.

  • Information Sharing Between BPS and ICE

A lawsuit brought by Lawyers for Civil Rights (LCR) and other civil rights and education advocates revealed documents that showed “extensive interactions” between Boston Public Schools (BPS) and federal immigration enforcement. A statement released by LCR outlines that since 2014, at least 135 student incident reports generated by BPS have been made accessible to ICE via the Boston Regional Intelligence Center (BRIC), an information-sharing network of local, state, and federal law enforcement agencies that is funded by the U.S. Department of Homeland Security and housed within the Boston Police Department.

The entanglement between BPS and ICE first came to light in 2017, when an East Boston High School student was the subject of a BPS incident report of a failed attempt by students to start a fight. ICE accessed the report after BPS shared it with the BRIC and the student was deported. Since then, City officials have denied the collaboration between BPS and ICE, but LCR asserts that the extent of collusion between the two is “alarming” because “BPS is creating a dangerous school-to-deportation pipeline”.

  • SJC Decision on Osman Bilal Case

In late January, the SJC came to a decision in the controversial Osman Bilal case. Bilal pleaded guilty to stealing jewelry from a Boston street vendor in 2011 and was at risk of deportation to Somalia, a country his family had fled when he was just two days old, due to this misdemeanor conviction. The judge who accepted his plea had rejected four motions for a new trial when the case was picked up by attorney Kelly Cusack in November. She worked with Donna Jalbert Patalano, general counsel for Suffolk District Attorney Rachael Rollins, to try again.

Cusack and Patalano appeared before Boston Municipal Court Judge Michael Coyne on November 15 and prosecutors dismissed the charges. But, six days later, Judge Coyne called the lawyers back to court and accused them of deception for not informing him that Bilal’s prior judge, Sally Kelly, had previously denied four motions for a new trial. Coyne vacated his order granting Bilal a new trial and reinstated his conviction.

At this point, D.A. Rollins’ office filed an emergency petition with the SJC, arguing that Coyne had no authority to reinstate the conviction. SJC Justice David Lowy vacated Bilal’s conviction, saving him from facing deportation proceedings.

D.A. Rollins has made it one of her top priorities to help defendants get convictions dismissed when it appears that they unjustly faced “harsh collateral consequences”, including deportation, under federal immigration law. “This is the unfortunate state of our federal immigration law,” Rollins said in a statement. “Mr. Bilal’s current situation is the very definition of extreme and unjust collateral consequences. We are better than this. I know it.”


[1] With the exception of Illinois, where it is still blocked by a statewide injunction.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

Walk to the Hill Recap

This morning, hundreds of civil legal aid supporters rallied at the State House for the 21st annual Walk to the Hill for Civil Legal Aid, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This annual event follows on the heels of the release of the Governor’s budget recommendation and formally kicks off the BBA’s budget advocacy. Governor Baker’s plan, known as H. 2, proposed level-funding MLAC at $24 million. While disappointing, this appropriation makes it all the more important to convince legislators of the need for increased funding.

Walk to the Hill is coordinated by the Equal Justice Coalition (EJC), which is a partnership of the BBA, the MBA, and MLAC, and proves to be one of the largest advocacy events of its kind in the Commonwealth every year. With the support of the bar and our community partners, we have achieved back-to-back $3 million increases in the MLAC budget line-item for FY19 and FY20, allowing for the expansion of legal services that are essential to low-income and elderly Massachusetts residents. However, roughly half of the population eligible for legal services is still turned away. This is why we must continue to advocate to increase funding. For FY21, MLAC is requesting an additional $5 million to reach a total of $29 million.

A number of leaders of the Massachusetts legal community, including BBA President Chris Netski, spoke at today’s event to a crowd of hundreds of lawyers and law students. Chris emphasized that the “increased demands on an already overburdened system make it extremely difficult for legal services attorneys to keep pace with the flow of cases, including far too many domestic violence cases, and demonstrate why the need for aid has continued to rise, despite the generous appropriations Governor Baker and the Legislature have afforded MLAC up to this point”. She went on to tell a story of a client who, thanks to MetroWest Legal Services, was able to receive critical immigration assistance and obtain a U visa, as a victim of crime, after being sexually assaulted. President Netski concluded her remarks by saying, “Because the BBA will always champion access to justice, and because we know it’s a good investment, we continue to advocate for civil legal aid and support MLAC’s request for a $5 million increase in funding this year”.

After the remarks in the Great Hall, attendees spread out to meet with their Senators and Representatives throughout the State House, including Chris Netski, who sat down with her Lexington Rep. Michelle Ciccolo, and BBA President-Elect Marty Murphy, who met with both Sen. Nick Collins and Rep. David Biele from the Boston delegation.

If you were unable to join us today, it’s not too late to talk to advocate for civil legal aid! Participate in “Talk” to the Hill throughout the state budget process by calling your legislators. If you know the names of your senator and representative, call the State House switchboard at 617-722-2000 to be connected to their offices. You can also look up your legislators here and access their direct phone numbers and e-mail addresses. The sooner you get in touch, the better!

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

FY21 Budget Season Gets Underway with the Governor’s Plan

On January 22, Governor Charlie Baker released his budget plan for Fiscal Year 2021 (FY21), which begins on July 1.  The BBA had sent him a letter outlining our four budget priorities for the year, and the results were mixed:

  • For the Massachusetts Legal Assistance Corporation (MLAC), the state’s largest provider of funds for legal services, the BBA and other supporters of civil legal aid are seeking an increase of $5 million, to build on the gains that have been achieved in recent years and to continue to chip away at the turn-away rates that have remained too high due to stubbornly increasing demand.  The Governor’s plan (also known as H. 2) would instead offer the same $24 million as in the current fiscal year, so it falls to us and our fellow advocates to continue to make the case to the Legislature again this year as to why this appropriation is so important for access to justice. (See also our recap on Walk to the Hill for Civil Legal Aid.)
  • If the court system has a natural constituency to advocate for adequate funding of their operations, it would have to be the bar.  That’s why we will always make the Trial Court’s appropriations a priority.  This year, they are seeking $771.5 million to maintain their current level of performance, but H. 2 falls a bit short of that, offering $750.9 million.  Again, we will be working to convince legislators to make up that shortfall.
  • The Committee for Public Counsel Services (CPCS) is the state’s public-defender agency, handling criminal defense and other representation for indigent litigants, through both staff attorneys and private bar counsel.  Their line-item would be funded at $261.5 million under H. 2, or about $4 million short of their need.  The plan also does not provide for a much-needed increase in the hourly rates paid to private counsel. 
  • Finally, the BBA has endorsed a recently-created grant program to fund community-based residential re-entry programs for formerly incarcerated individuals, to provide for health care, housing, employment, and substance-abuse treatment, and thereby reduce recidivism and overdose rates.  The $6.3 million in H. 2 would continue the program at its current scale, though we support the Trial Court’s request of $9.6M, which would allow for expansion into new regions.

The budget is now in the hands of the Legislature, where hearings will be held the next couple of months, and then the House Ways & Means Committee will release their own plan in April, followed by the Senate’s turn in May.  The final budget likely won’t be enacted until July, but we will keep you posted here (and with e-mail updates and alerts).

—Michael Avitzur
Government Relations Director
Boston Bar Association

Everything You Need to Know for Walk to the Hill

It’s the most wonderful time of the year! We are, of course, referring to Walk to the Hill, the annual lobby day for civil legal aid. Scheduled for Thursday, January 30, it’s right around the corner. For those of you who don’t know, here’s a primer on the event…

Who

Sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, the event is attended by over 500 attorneys. There will be speeches from BBA President Christine Netski, MBA President John Morrissey, legal aid clients, and SJC Chief Justice Ralph Gants. There will also be legislators … lots of them.

What

The event begins with registration and speeches in the Great Hall. Get ready to be inspired! It is impossible not to be moved when hearing about the impact of legal aid on the lives of so many people in need. After a boxed lunch, it’s on to legislative meetings. Don’t know your elected representatives? That’s perfectly fine – look them up here and make the introduction. Tell them how much legal aid means to you and why it is important that they support this year’s ask: a funding increase of $5 million, for a total of $29 million in FY21. This fact sheet provides some strong arguments you can use to make your case.

If you are ready for a deeper dive, check out Investing in Justice, the 2014 report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts that laid the foundation for our campaign by conclusively demonstrating that:

  • More than 50% of individuals who qualify for legal aid and make it through the wait (roughly 50% of callers give up after being on hold for hours) are nevertheless turned away, solely due to a lack of adequate funding. Tens of thousands are turned away every year, which is especially concerning in areas of basic need such as housing and domestic violence.
  • Court procedures are bogged down and justice is frequently delayed or denied due to the glut of pro se litigants.
  • For every dollar spent on legal aid in the areas of domestic violence, federal benefits, and housing, the state and its residents see returns of $2 to $5, mostly on back-end savings such as shelter, police, and medical costs.

If you’re a social media buff, we’ve got you covered too. Fill out an “I Walk…” placard and tweet a picture using the #IWalkforJustice or #WalktotheHill hashtags. The EJC and others will be actively retweeting the best submissions.

Finally, sign up for action alerts here to get notified of key moments in the budget process and to get access to easy “plug-and-send” emails to officials. We will be promoting similar alerts on this blog and through your weekly BBA e-newsletter as well, so stay tuned!

When/Where

Thursday, January 30, 2020 from 11:00 am to 1:00 pm in the State House’s Great Hall.

Why

There are no bad reasons to Walk to the Hill. For many it is the recognition that lawyers play a special role in society and thus have a duty to serve others. For some it is because they recognize the great work legal aid in Massachusetts does for those in need, helping low-income individuals, the courts, and society at large. For others it is all about increasing access to justice or following up on their own pro bono efforts. Check out this Twitter page where dozens, including a number of #MAPOLI stars, shared why they walk. 

Many firms get in on the act, with firm captains leading the charge to round up as many partners and associates as they can to attend. However, if you do not have a group to walk with, you can join us at our annual pre-Walk to the Hill breakfast at the BBA. Join us on the morning of the Walk at 9:30am to hear from our Government Relations team on lobbying strategies, have a last chance to look up your legislators, and participate in the #IWalkForJustice social media campaign. We will head across the street to the State House together at 11. 

Thinking of trying to put together a group to attend the Walk? Here are some great ideas that work:

  • Offer pro bono credit
  • Ask for a commitment – calendar invites are really helpful
  • Get competitive: How does your department stack up against another? How about your firm vs. others?
  • Get personal – don’t just email friends and colleagues, actually talk to them in person.
  • Help your recruits prepare and coordinate the details for them.

We hope we’ve given you everything you need to know to have a great Walk to the Hill. We look forward to keeping you up to date on all the latest developments in the FY21 budget campaign.

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Endorses Co-Parent Adoption Act

The BBA has endorsed legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. H.1485/S.1013, An Act to promote efficiency in co-parent adoption, will allow a petition by such couples to adopt their own children so as to ensure universal recognition and respect for their parentage. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples.

Currently, couples who use assisted reproduction must complete adoptions of their own children in order to secure a court decree which ensures their parentage will be respected throughout the United States and internationally. Even if both parents’ names are on the child’s birth certificate, this does not equate to parentage and puts one or both of the parents at risk of having their parentage questioned in the future. Having to adopt their own children puts parents through an immense amount of emotional stress and financial cost that heterosexual couples not using assisted reproduction do not have to undergo. The adoption process is lengthy and invasive, forcing the couple to undergo a home inspection, one or more court appearances, a criminal record search, a six-month waiting period, and other unnecessary hurdles that create a daunting experience for a parent who is already fully engaged in parenting their child. It also forces children born to same-sex couples to remain vulnerable and undergo emotional stress and disturbance to their lives.

H.1485/S.1013 would eliminate these unnecessary barriers and allow LGBTQ and other families who use assisted reproduction technologies to be afforded the parentage rights they deserve.

It is especially important to enact such legislation in Massachusetts because Massachusetts happens to be the state with the highest use of assisted reproduction technologies in the country. California and New Jersey have instituted similar legislation in recent years and the BBA believes that Massachusetts should follow.

Elizabeth Roberts, member of the BBA’s Family Law Section Steering Committee and a family law attorney at Roberts & Sauer LLP, submitted testimony for the Joint Committee on the Judiciary at the public hearing on this bill in July and presented the issue to BBA leadership along with Section co-chairs David Friedman of Verrill Dana LLP, and Carlos Maycotte of Fitch Law Partners. As Elizabeth put it to the Legislature, “We would urge you to make this process less costly, time consuming and able to occur in a manner that offers dignity to LGBTQ families of the Commonwealth. A secondary benefit is that this legislation is in the interest of judicial economy, streamlining a process that was needlessly time consuming and that ignored the fact that these adoptive parents were intact families already”. The Family Law Section formally endorsed this legislation shortly after, and it has now been voted on and approved by the BBA Council.

We look forward to advocating for this important legislation that is long overdue.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Files Brief in Support of the Massachusetts IOLTA Committee

On January 21, the Boston Bar Association, Massachusetts Bar Association (MBA), and Real Estate Bar Association (REBA) filed a joint brief to the Supreme Judicial Court (SJC) in the case of In the Matter of Gregory M. Olchowski, which has to do with a dispute between the Massachusetts Interest On Lawyers’ Trust Accounts (IOLTA) Committee and the State Treasurer over access to unidentified funds in IOLTA accounts. The brief, co-drafted by Mary Ryan and Micah Miller of Nutter McClennen & Fish, Tom Carey of Hogan Lovells, and Francis Morrissey of Morrissey, Wilson & Zafiropoulos, sided with the IOLTA Committee, arguing that unidentified funds should be remitted  to the IOLTA Committee instead of the Treasurer.

Attorney Gregory Olchowski was temporarily suspended in early 2013 and funds from his two IOLTA accounts were deposited in a separate account in the name of his attorney. The intended recipients of the funds could not be identified. Since 1994, Bar Counsel’s practice has been to remit funds to the Committee, with the SJC’s approval, after conducting a thorough investigation (including reviewing attorney records) and determining that the owner of the funds cannot be identified. In October 2018, Bar Counsel filed a motion to remit the Olchowski funds to the IOLTA Committee. The Treasurer filed a motion to intervene and ultimately opposed Bar Counsel’s motion, asserting that the funds should escheat to the Treasurer.  The Committee filed a motion to intervene and to oppose the Treasurer’s motion. 

As the BBA/MBA/REBA brief notes, 13 other states have either statutes or court rules which send unidentified funds to that state’s IOLTA group or similar entity. The SJC posed the following questions for amici:

1. Do unidentified client funds on deposit in an IOLTA account fall within the statutory definition of “abandoned property” under G. L. c. 200A?
2. Does Mass. R. Prof. C. 1.15, or any other rule of this court, govern the disposition of such funds?
3. Are any constitutional issues raised by the parties’ proposed disposition(s) of the funds?

In April 2019, the IOLTA Committee formally requested that the BBA file an amicus brief in support of their argument in this case. The Amicus Committee reviewed the facts of this case and monitored the development of the brief.

As filed, the brief argues that the Abandoned Property Act was never intended to address unidentified IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985.  G.L. c. 200A has been amended at least five times since then to define when specific types of property are deemed abandoned, yet the Legislature has not chosen to bring IOLTA funds within that ambit: “Had the legislature intended to bring unidentified IOLTA funds under the APA, it could have done so by express amendment, as it did for other kinds of property. This history shows that the Legislature never intended the APA to apply to unidentified funds in an IOLTA account.”

Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences—“a critical aspect of the practice of law”—and jeopardizing the security of client information. This is because “[a]ttorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences,” and the Treasurer’s Office would have broad discretion to review attorney records related to IOLTA accounts holding such funds. Yet, unlike the IOLTA Committee and the Board of Bar Overseers, that Office lacks clear protections against the disclosure of confidential information.

The brief also places the power to regulate unidentified IOLTA funds squarely within the SJC’s inherent authority to regulate the practice of law, and highlights “the beneficial effects that turning even modest sums of money over to the IOLTA Committee will have on access to justice for all.” This position is consistent with the BBA’s mission, and with its history: The BBA and MBA jointly petitioned the SJC to create the Massachusetts IOLTA program in 1985, and it has been funding programs on behalf of indigent residents of the Commonwealth since then.

The IOLTA Committee recruited two pro bono attorneys to represent it in oral argument, which will be held on February 11. Follow @MikeAvitzurBBA on Twitter for live updates of the hearing (which you can also watch through the Suffolk Law School feed)! A ruling is anticipated by June, and we’ll be sure to update you on it here.

-Michael Avitzur
Director of Government Relations & Public Affairs
Boston Bar Association

BBA Joins with MBA on Amicus Brief Supporting Right to Counsel in Civil Contempt Proceedings

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In doing so, the BBA joined with the Access to Justice Commission, which had made the same recommendation in 2007.

That BBA report—authored by former BBA President Mary Ryan of Nutter McLennen & Fish, and IOLTA Committee Director Jayne Tyrrell—noted that the question of whether a right to counsel should apply in such instances “invites litigation”, and now with that question squarely before the Supreme Judicial Court (SJC) in the case of DOR v. Grullon, we have joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

[I]ndigent litigants are forced to navigate the legal system without legal representation even in cases where basic human needs are at stake.

BBA Task Force Report, Gideon’s New Trumpet

Here, the defendant-appellant—a partially disabled, indigent veteran—was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he is now represented by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR).

The judge at the hearing took issue with a comment made by the petitioner, which she interpreted to mean that the petitioner was not taking his responsibility seriously. The judge found the petitioner in contempt of court and sentenced him to ten days in jail. Also at issue is whether the sentence was intended as punishment or to compel the petitioner to comply with the standing support order, and whether the court made the proper findings that the petitioner—who was homeless and engaged in a vocational rehabilitation program to help find work compatible with his disability—had the ability to pay the support order or the so-called “purge amount,” i.e., the amount that must be paid to secure the petitioner’s release from incarceration.

Because he could not afford the purge amount of $500, Grullon served the full ten days in jail, during which time he missed vocational training, further setting back his ability to return to work. (According to VLS, research demonstrates that incarceration is rarely effective in such circumstances and is counterproductive with regard to both future compliance and fatherhood engagement.)

In July, the SJC, without explanation, granted direct appellate review of the lower court’s decision. Our Amicus Committee—chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—recommended that the BBA join an amicus brief in support of Grullon’s argument, and the Council voted to join the MBA’s brief, as drafted by Thomas J. Carey, Jr., of Hogan Lovells. The brief was also joined by Boston College Law School professor Mark Spiegel, and the ACLU of Massachusetts filed a separate letter expressing to the SJC their endorsement of the brief. (The Massachusetts Law Reform Institute, the Committee for Public Counsel Services, and the Jewish War Veterans of the USA each weighed in as well in support of a right to counsel in such cases.)

In a 2011 case, Turner v. Rogers, the US Supreme Court addressed this issue, reversing a state-court decision in which an unrepresented noncustodial parent was incarcerated for non-payment of child support. That Court concluded that the incarcerated parent’s due-process rights had been violated, but stopped short of recognizing that a right to counsel is “automatically” required in all civil contempt hearings. Among other concerns, the Court noted that asymmetry of representation between purely private parties might skew the playing field, and expressed a belief that procedural protections other than a per se right to counsel would be adequate to satisfy federal due process standards in most private cases.

Poor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.

MBA/BBA Amicus Brief in DOR v. Grullon

The MBA/BBA brief in Grullon argues that Mr. Grullon did not benefit from the specific alternate safeguards that might obviate the need for counsel under Turner, and that systemic flaws exist in the processing of civil contempt matters in the Probate and Family Court. “[W]hen government attorneys advocate imprisonment of unrepresented indigent defendants for debt,” the brief states, “the risk of error is unacceptable, and the value of court-appointed defense counsel is indisputable.”

It goes on to say that while the SJC may wish to take further remedial steps, in the exercise of its supervisory powers over the administration of justice—including promulgating clearer court forms, creating universal standards, requiring written findings, and tasking a working group to evaluate current practices and make recommendations—“such steps should be additional to and not in substitution for a constitutional right to court-appointed counsel for indigent defendants faced with government lawyers and a realistic risk of imprisonment”.

As argued in Gideon’s New Trumpet, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA has long advocated for a broader right to counsel in civil cases, including…

  • through the courts
    • See, e.g., amicus briefs the BBA joined in related 2014 and 2015 cases that resulted in such a right where a child may be taken from a parent/guardian.
  • and through legislation.
    • See, most recently, our support for the coalition seeking to enact a right to counsel for indigent tenants and landlords in eviction cases.

The SJC’s oral arguments in Grullon will be held this Thursday, January 9, and can be viewed, through the Suffolk Law School web-site, either live (starting at 9am) or in archived form. Veterans’ Legal Services will be representing the Appellant, and you can read their brief here. A decision is expected by May.

SJC Supports ‘Consent-to-Settle’ Insurance Clauses, in Keeping with BBA Amicus Brief

On December 16, 2019, the SJC announced its decision in Rawan v. Continental Casualty Company, a case that addressed whether an insurance company must honor a so-called “consent-to-settle” clause, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy. The BBA was pleased to see that the SJC accepted our argument that an insurance company must honor these clauses. (You can read our full statement on the ruling here.)

The BBA filed an amicus brief in support of the Defendant-Appellee Continental Casualty Company on the questions posed by the SJC in their request for amici briefs, “whether a liability insurer violated its duty, under G. L. c. 176D, § 3(9)(f), to effectuate a prompt, fair, and equitable settlement of a claim in which liability had become reasonably clear, where the insured refused to consent to a settlement and the insurance policy provided that the insurer would not settle any claim without the informed consent of the insured; whether such a provision is unenforceable as against public policy.”

The BBA brief, as drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody and Arnold, argued that:

“Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which insures to the benefit of the insured, not the insurer.”

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Echoing that view, Justice Scott Kafker, writing for a unanimous SJC, asserted that:

“Consent-to-settle clauses also serve valuable purposes in the professional liability context, including the important protection of a professional’s reputation and good will. Moreover, consent-to-settle clauses encourage professionals to purchase this voluntary line of insurance, thereby providing more secure funding for the payment of third-party claims.

Consent-to-settle clauses serve important purposes in this optional line of insurance. Most importantly, they encourage professionals to purchase such insurance, thereby providing coverage for the insured and deeper pockets to compensate those injured by the insured.”

We were pleased to see that the Court upheld the right of professionals and insurance companies to enter into liability policies that include “consent to settle” provisions, the exact outcome that our brief argued for. We are thankful to the brief drafters as well as the entire BBA Amicus Committee—co-chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—for their work in this case.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

The Death Penalty in the News

On Monday, the Justice Department asked the U.S. Supreme Court to let it resume the federal executions scheduled for December 9 by “setting aside” a district court’s injunction blocking it from carrying out lethal injections as planned. The November ruling held that the Justice Department’s proposed lethal injection procedure “is not authorized” by federal law. This order temporarily called off four executions scheduled for December and January, which would have been the first carried out by the federal government since 2003. The Justice Department’s new request marked an escalation of the Trump administration’s push to restart federal executions.

The BBA has opposed the death penalty for more than 40 years. In 2013, the BBA Death Penalty Working Group published a report outlining the three bases for the BBA’s position:

  1. that the inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
  2. that, in practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
  3. that death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

We have been committed to policy advocacy against the death penalty, for instance, by filing numerous amicus briefs, including in Commonwealth v. O’Neal, Commonwealth v. Colon-Cruz, and U.S. v. Darryl Green. You can read more about the BBA’s work on the death penalty here.

This week, Jim Petro, a former Ohio attorney general, published an opinion piece in the New York Times where he outlined why he, as someone who has seen the death penalty up close, believes that the death penalty is a “failed policy”. Mr. Petro outlined the following:

Another unfortunate reality is that the federal death penalty is marred by the same problems of racial bias and geographical disparity found in the state death penalty systems. Just three Southern states — Texas, Virginia, and Missouri — are responsible for nearly half of the federal death row population. People of color, particularly African-American men, also account for more than half of all current federal death sentences. And the overlap between these two areas of disparity is significant: Every person on the federal death row from Virginia and all from the Eastern District of Missouri are people of color. And people of color have received 75 percent of federal death sentences imposed in Texas in the modern era.”

He also explained that many of those in favor of the death penalty are under the impression that it is reserved for crimes affecting our national interests, such as terrorism and espionage, when in fact, only one federal inmate is under a death sentence for a terrorism offense, and none for espionage or treason. He concludes, “Capital punishment is costly, offers no proven deterrent benefit and delays healing for victims’ family members, while also traumatizing correctional officers and risking the execution of innocent people.”

As our amicus brief in Colon-Cruz noted, lawyers involved in these cases are traumatized as well: “The psychological and emotional burdens on counsel, particularly on the defense, are immense.”

We join Mr. Petro in urging the Trump administration to suspend the attempt to resume with the executions scheduled for next week. The federal government has not executed anyone since 2003, and the Trump administration should keep it that way.   

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Walk to the Hill 2020 and BBA Budget Advocacy Preview

Mark your calendars! Walk to the Hill for Civil Legal Aid, one of the state’s biggest lobby days, is happening at 11am on January 30, 2020. This annual event brings together hundreds of attorneys and public policy advocates at the State House to hear speeches from the judiciary, the bar, and individuals who have been helped by legal aid funding. Following the speeches, you can grab lunch and spread out to speak to your own legislators, urging them to increase state funding for programs that provide civil legal aid to low-income Massachusetts residents.

We will be hosting our annual breakfast directly before the event. You will be able to look up your legislators, hear from our Government Relations team on how to speak to them about civil legal aid, and join us for the short walk across the street to the Great Hall of the State House for the start of the event. We continue to participate in this event every year because of its significance in the budget campaign for civil legal aid, led by the Massachusetts Legal Assistance Corporation (MLAC) and the Equal Justice Coalition (EJC) every year. Keep reading to learn more about the significance of Walk to the Hill and about how much funding MLAC and the EJC will be requesting in the FY21 Budget.  

The Importance of Civil Legal Aid

MLAC is the largest funding source for civil legal aid programs in Massachusetts. It was established by the state legislature in 1983 to ensure that low-income people with critical, non-criminal legal problems would have access to legal information, advice and representation. In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding, revealing that MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants.

According to a 2017 report by the Legal Services Corporation, low-income Americans receive no or inadequate professional help for 86% of their civil legal problems. And, the report states, 71% of low-income households in America have experienced at least one civil legal problem in the past year. The gravity of this problem is great in Massachusetts, where, due to a lack of funding, legal aid programs are forced to turn away most eligible residents – nearly 45,000 people each year – who seek help.

The Budget Ask

Last year, we asked for a $5 million increase in the MLAC budget-item for a total appropriation of $26 million. In a big victory for civil legal aid, MLAC received a $3 million increase, resulting in a $24 million appropriation, up from $21 million for FY19. This in turn allowed MLAC to increase its support for the 16 legal service organizations it funds in FY20 – its largest-ever round of state appropriation funding for legal services organizations in Massachusetts.

The legal aid organizations that receive funding from MLAC provide critical civil legal aid to struggling people who otherwise would not have legal representation in serious civil legal matters. In most instances, people qualify for civil legal aid if their annual income is at or below 125 percent of the federal poverty level, or $32,188 for a family of four.

The legal aid organizations receiving MLAC funding include regional organizations — which provide advice and representation to low-income people facing civil legal issues related to housing, health care, public benefits, immigration, domestic violence, and other serious legal issues — and statewide organizations that specialize in certain areas of law and serve clients statewide.

For FY21, the EJC is requesting an additional $5 million increase from last year’s budget, which would total $29 million. The Governor will release his FY21 budget during the last week of January, marking the beginning of a months-long process to the final budget. The next major step comes in mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. 

This is why Walk to the Hill is such an important advocacy opportunity. Rallying at the State House and meeting with legislators immediately afterwards offer the best opportunity for BBA members and the legal community as a whole to:

  • thank elected officials for their past support,
  • remind them of the importance of civil legal aid,
  • and explain that further increases are still desperately needed to keep up with the growing demand on the civil justice system.

The same BBA commitment to access to justice also led us this year to join the Right to Counsel Coalition, in support of providing representation to low-income tenants and landlords in eviction cases. The coalition has been gaining support in the past months, receiving shout-outs from the Boston Globe and SJC Chief Justice Ralph Gants during his State of the Judiciary speech. You can read more about that effort here.

If you don’t know your legislators, you can look them up here, and if you need a refresher on how to talk to your legislators, listen to our “Talking To Your Legislator About Legal Aid” podcast and then join us at the BBA for our annual pre-Walk breakfast, where our Government Relations director will issue advice on how to be the best advocate for civil legal aid you can be. Please don’t hesitate to contact our Government Relations team if you want to learn more about how you can get involved in Walk to the Hill or the fight for funding for civil legal aid.

-Lucia Caballero
Government Relations & Executive Assistant
Boston Bar Association