BBA Amicus Brief Supports Post-Conviction Ballistic Testing

Last week, the BBA filed an amicus brief in Commonwealth v. Jenks — the latest in a series of briefs in cases testing a 2012 law — which the BBA was instrumental in enacting — that provides a mechanism for post-conviction testing of forensic evidence, allowing petitioners to try to prove their innocence.

Here, the BBA argues that the forensic-testing law is intended to set a low bar for initial motions for such testing and that the SJC should recognize, for purposes of applying the law, that science is constantly changing, taking that into account in assessing whether a proposed analysis to be sought — in this case, ballistic testing — is a material improvement over a previously conducted analysis.

Our Amicus Committee — led by Neil Austin of Foley Hoag and Maria Durant of Hogan Lovells — has been busy recently. This brief was drafted by Neil and his Foley colleagues, Anthony Mirenda and Rachel Hutchinson, as well as John Weaver of McLane Middleton and Madison Bader of Lawson & Weitzen.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update

BBA Council Adopts Resolution on Immigration Court

The BBA Council endorsed a resolution aimed at addressing concerns among practitioners about practices at the Boston immigration court. It offers recommendations to strengthen the court’s COVID-19 protocols, as well as to improve communications between the court and attorneys who practice there, and to enhance efficiencies in the court’s handling of cases. The MBA and the American Immigration Law Association of New England have also adopted the resolution, and we hope this united front will prompt consideration of, and dialogue about, these recommendations.

New Policy on Immigration Enforcement in Courthouses

The Department of Homeland Security (DHS) this week tasked Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) with developing new guidelines on enforcement by those agencies in and around courthouses. Such enforcement has been a major access-to-justice concern for the BBA, because it has a chilling effect on victims, witnesses, and others seeking justice. Indeed, we have been involved with litigation at the federal and state level challenging such actions. 

The interim DHS memo for the first time recognizes the impact on access to justice and calls for enforcement measures to be limited to certain circumstances. But we await further detail, in more-permanent policies, to assess how effectively the Biden Administration’s approach will curtail courthouse enforcement.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Leadership Takes Part in Annual ABA Day

For the second year in a row, our participation in the annual ABA Day event was virtual-only, but we were nevertheless able to continue the spirit of the event by communicating over Zoom with some of the Massachusetts delegation about shared BBA and ABA priorities.

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Rep. Jim McGovern (MA-04), speaking with the BBA on ABA Day, April 21, 2021


As usual, our main focus was on appropriations for the Legal Services Corporation, the largest source of funding for legal-aid providers nationwide, including four grantees in Massachusetts. President Marty Murphy and President-Elect Deb Manus led the meetings, joined by three experts on that issue: former BBA Presidents Mary Ryan (co-author of our Gideon’s New Trumpet report) and J.D. Smeallie (lead author of our Investing in Justice report), and Council member Betsy Soulé, executive director of MetroWest Legal Services.

We also talked about immigration concerns, including the resolution recently adopted by the BBA Council, calling for reforms to improve efficiency and accessibility at the Boston immigration court, and our support for ensuring the independence of immigration courts throughout the U.S. by placing them outside the executive branch, like similar courts, such as Tax Court and Bankruptcy Court. These positions are built on the foundation of our Immigration Principles.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins ADL in Support of Equity in Access to Boston’s Prestigious Exam Schools

Amicus Brief in Federal Case Is in Keeping with BBA’s Commitment to Diversity in Education

[This post has been updated to reflect a District Court decision on April 15 on the case at hand. See the passage in red below.]

The BBA has long had a commitment to diversity and equity in education, dating back at least as far as our 1975 report, Desegregation: The Boston Orders and Their Origin, which promoted public understanding of Judge Garrity’s controversial busing plan.

More recently, we have been active as amici in litigation on these issues, opposing the abolition of race-conscious admissions policies — especially at law schools — as a threat to efforts to diversify the legal profession, and twice arguing that diversity within the legal profession cannot be achieved without a “pipeline” that requires diverse representation at both undergraduate institutions and law schools. (And, of course, our work in support of equal opportunity for all students extends beyond the courtroom as well, including our Summer Jobs and Financial Literacy programs for high-schoolers and our Service Innovation Project to protect the rights of students at all levels in discipline cases.)

Bringing that legal focus back to Boston, the BBA signed onto an amicus brief by the Anti-Defamation League (ADL) in support of the Boston Public Schools’ one-year policy for admission to its three exam-based high schools. Several other groups with an interest in ameliorating long-standing educational disparities also joined the brief, which argues that the school system has a compelling interest in advancing diversity of all kinds at the exam schools. The underlying litigation was filed in the U.S. District Court in Massachusetts this past February on behalf of several families of potential applicants who they claim would be adversely affected by the switch to this interim policy.

Boston’s School Committee had been criticized over admission policies for the highly-selective schools that have led to the acceptance of students who are significantly less diverse—on racial/ethnic, geographic, and socioeconomic measures—than its enrollment as a whole. This year, the district chose to drop the exam component because of the pandemic, settling instead on a temporary approach that still focuses on grades, setting aside 20% of seats to be filled solely on that basis, but also seeks to ensure greater diversity by using geography as well to help fill the remaining 80% — drawing the top students from each ZIP code, in numbers commensurate with the student population in each area.

The ADL’s brief, prepared by attorneys with Cooley LLP‘s Boston and Washington, DC, offices, argues that the policy—which is in place to govern admissions for the 2021-22 school year only —advances the exam schools’ mandate “to foster and maintain a diverse student body so that students have access to the myriad, well-established educational benefits of diversity,” and that it ultimately helps the City of Boston compete in a global marketplace where “having more diverse, well-credentialed graduates is an essential competitive advantage.”

“The Exam Schools are a crucial part of the pipeline by which promising and diverse students in Boston enter the local talent pool,” the brief states. “Students from underrepresented communities around the City are missing out on significant opportunities and advantages,” noting, for example, that “a student from West Roxbury was approximately five times more likely than a student from East Boston to gain admission.” By addressing such on-going disparities head-on, the one-year policy will help level the playing field.

“The BBA has long taken an interest in promoting equity and equal opportunity for students in New England’s largest school district and beyond,” said BBA President Martin F. Murphy, “from publishing a 1975 report that explained court-ordered desegregation to the public, to filing a series of amicus briefs over the past 20 years in defense of the principle that society is best served when the benefits of access to a quality education are shared equally, and when students are best prepared for success by learning in a diverse environment. We are proud to join the ADL and others in this brief.”

The other amici joining the brief include Amplify Latinx, the Black Economic Council of Massachusetts, the Boston Celtics, the Boston Red Sox, Jewish Alliance for Law and Social ActionKing Boston, the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts LGBT Chamber of Commerce, the Mental Health Legal Advisors Committee, the New Commonwealth Racial Equity and Social Justice Fund, and Boston-based cybersecurity firm Rapid7. In addition, a number of civil-rights groups, represented by Lawyers for Civil RightsSidley Austin LLP, and Greater Boston Legal Services, successfully moved to join as intervenors in the case, to offer the court a broader perspective on the issues presented.

A hearing in the case—Boston Parent Coalition for Academic Excellence Corp. v. The School Committee of the City of Boston et al.was held on April 6, with District Judge G. William Young hearing from counsel for the plaintiffs, the defendants, and the intervenors. Arguments mostly centered on what level of judicial review is called for in the case. Judge Young pledged to deliver at least a preliminary ruling as soon as possible, in light of the schools’ need to notify applicants of their admission decisions.

We’ll report back once a ruling is issued.

UPDATE: Just after this post was published on April 15, Judge Young released his decision, ruling in favor of the Boston Public Schools and rejecting a challenge to their one-year admissions policy for Boston’s exam schools. 

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins DLC & MHLAC on Amicus Letter in Support of Civil-Commitment Rights

This week, the BBA joined the Disability Law Center (DLC) and the Mental Health Legal Advisors Committee (MHLAC) in submitting an amicus letter to the SJC in an impounded case brought by a petitioner currently held at Bridgewater State Hospital under the Commonwealth’s civil-commitment laws

In his reservation and report on the case — which was made public, in order to promote amicus participation, and which contains further details on the underlying fact pattern — the Single Justice set oral argument for April 5. The BBA Council accepted the Amicus Committee‘s recommendation to join the letter, based on our commitment to the fundamental principles of due process and equal protection.

The amicus letter (which is also impounded) argues that: (a) the statute in question raises due-process concerns regarding the treatment of prisoners under the law, as opposed to others; (b) there is no current rationale for the provision allowing the state’s Commissioner of Correction to effectively override a judge’s determination and hold an individual at Bridgewater who would otherwise be sent to a different facility for treatment; and (c) the exercise of that authority has a disproportionate impact on low-income people and people of color.

For all these reasons, the letter urges the Court to find that portion of the statute unconstitutional. The letter was drafted in part by the BBA’s Amicus Committee, but we were pleased to be able to partner with MHLAC and DLC, who led this effort.

The case will be argued before the SJC (streamed live) on Monday at 9am.

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2020-2021 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Maria Durant of Hogan Lovells.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Eyes Biden Agenda

The new Biden Administration has an ambitious agenda, much of which it has been telegraphing for weeks, and some of which coincides with issue areas where the BBA has an interest. We have been tracking President Biden’s plans, including a number that have already come to fruition in the form of day-one executive actions. Here’s a run-down of what we’re expecting.

  • Immigration
    • This is an area that the President has signaled will be a priority. It has been a priority for the BBA as well, and the Immigration Principles we released in 2018 have guided our positions since then.
      • Through an executive order, President Biden has already lifted the final version of the prior Administration’s travel ban on arrivals from several majority-Muslim nations. We opposed it when it was first imposed, nearly four years ago, and we immediately praised this reversal.
    • Still to come?:
      • The new President has pledged to prioritize reuniting separated families, undoing a practice that was the subject of widespread condemnation, including from the BBA. The details, however, remain to be seen “by February 1”.
      • Immigration enforcement will be radically different during the Biden Presidency — that much we know. But we are eager to learn whether US Immigration and Customs Enforcement (ICE) will take steps to clarify that courthouses should be exempt from enforcement, as we have urged.
      • Last spring, we asked the Department of Homeland Security to allow more non-citizen health-care workers to remain in the US, as a public-health measure to help combat the COVID-19 pandemic. We await potential action on that front as well.
  • Eviction/Foreclosure Moratorium
    • Another area that saw day-one action from the President is the crisis facing millions of homeowners and renters who find themselves unable to keep up with payments as a result of the economic devastation caused by the pandemic. Here in Massachusetts, the BBA advocated for a moratorium on evictions and foreclosures over lack of payments for that reason. (That moratorium has expired, but we have since been assisting with the state’s Eviction Diversion Initiative.)
    • At the federal level, President Biden’s executive order yesterday asks the Centers for Disease Control and Prevention (CDC) to extend its standing eviction moratorium, which is set to expire on Jan. 31, through at least March 31. Federally-backed mortgages are also covered by the order, but Congress would need to act to provide further protections, including any potential support for struggling landlords.
  • Transgender Rights
    • The previous Administration ordered that transgender troops not be allowed to serve in the military — something we criticized at the time — and there are clear indications that this policy will be rescinded.
    • In the meantime, there is already an executive order that shifts the federal government’s interpretation of the Civil Rights Act of 1964 to prohibit workplace discrimination on the basis of sexual orientation and gender identity. The order also directs federal agencies to make sure existing laws banning sex discrimination also prohibit discrimination against gay, bisexual and transgender workers.
    • And, if confirmed by the Senate as assistant secretary of health, Biden’s nominee, Rachel Levine (who is currently Pennsylvania’s Secretary of Health), would become the first transgender person to serve at that level.
  • Policing
    • The President has pledged to appoint a police oversight commission within his first 100 days in office, “to improve oversight and accountability,” but we await details on its composition and its charge. Meanwhile, the BBA’s own Task Force on Ensuring Police Accountability is hard at work formulating recommendations for Massachusetts lawmakers on reforms to qualified immunity and civil-service laws.
  • DOJ Independence
    • It hasn’t gotten so much attention as the above promises, but the Administration is said to be preparing an order prohibiting interference in the operations of the Justice Department from other parts of government. This would represent a welcome return to traditional norms — and a break from actions over the last four years that drew the BBA’s rebuke.
  • Death Penalty
    • There has been no clear statement from the Administration on this, but opponents of the death penalty — which of course includes the BBA — have reason to be optimistic that President Biden will end the recent string of executions. As a candidate, Biden ran on a platform that included support for legislation to abolish the federal death penalty.
    • Soon, the next Attorney General — presumably nominee Merrick Garland — will have to decide whether to continue pursuing the reinstatement of the death sentence that was handed down at the trial of the surviving Boston Marathon bomber — but that was reversed on appeal. The BBA has called on DOJ to let the case stand, leaving a life-without -parole in place.
  • Other Possible Areas
    • Biden has said there will be forthcoming policies on the following issues — each of which would be of interest to the BBA — but there has been very little detail provided thus far…
      • voting rights
      • criminal-justice reform
      • racial justice
      • diversity, equity, and inclusion

Watch for updates on all of these issues as they develop…

—Michael Avitzur
Government Relations Director
Boston Bar Association

Governor Baker Makes History with Three SJC Nominations

With three new nominations over the past few weeks, Governor Baker has completed a historic remaking of the Supreme Judicial Court (SJC) and ensured that its tradition of excellence will continue well into the future. 

In selecting sitting SJC Justice Kimberly Budd to replace the late Chief Justice Ralph Gants, and Appeals Court Justice Dalila Argaez Wendlandt and Boston Municipal Court Judge Serge Georges, Jr., to join the high court, the Governor also signaled his understanding that diversity at the highest levels of the judiciary need never be in conflict with—but rather is a prerequisite to—the fulfillment of the highest ideals of justice.

BBA President Marty Murphy released statements praising each of these choices, who will be, respectively, the SJC’s first Black woman as chief, first Latina justice, and second Black man (see the links above and excerpts below).

Justice Budd has since been confirmed as chief by the Governor’s Council, which, under the state constitution casts the final vote on approval of judicial nominations. Although the Judicial Nominating Commission—established by governors in recent decades through a series of executive orders—makes initial recommendations for all other judgeships*, Governor Baker set up a special commission (full list of members below) to advise him on the selection of the two new nominees to the SJC.

* Potential applicants are urged to review current vacancies.

Justice Wendlandt had a hearing before the Governor’s Council this week, with a vote expected soon, and Judge Georges’ hearing will be held on December 2. The two current vacancies were created by the death of Chief Justice Gants and the pending retirement of Justice Barbara Lenk on December 1. Having previously appointed five of the seven justices, Governor Baker is believed to be the first since John Hancock to name the entire SJC bench.

BBA President Marty Murphy on…

  • Chief Justice Budd:

Justice Budd’s career, including her 11 years on the bench, demonstrates her extraordinary legal acumen, her deep commitment to justice for all, and the careful attention she gives to every case that comes before her — all of which will serve her well in leading a court whose decisions affect the lives of all of us in so many ways. We look forward to the Governor’s Council’s review of her nomination and her confirmation by that body.

  • Justice Wendlandt:

As demonstrated by her experience as a highly-respected litigator who argued before the US Supreme Court, and more recently on the bench, Justice Wendlandt has a brilliant, creative, and methodical legal mind. Her background — which includes a master’s degree in mechanical engineering, pro bono work on asylum applications and a death-row appeal, and a commitment to improving work-life balance for attorneys at her prior firm — will bring a unique perspective to the Court and assist in their work on some of the most challenging issues in the Commonwealth.

Issue Spot Boston Bar Association Page 3
  • Judge Georges:

Judge Georges—who currently sits in the Dorchester session of the Boston Municipal Court, not far from the Kane Square neighborhood where he grew up—is a jurist of great compassion, empathy, and wisdom. A former criminal-defense attorney and civil litigator, and former President of the Massachusetts Black Lawyers Association, he has served on the bench since 2013. Judge Georges is a true son of Boston, having graduated from B.C. High, Boston College, and Suffolk Law School.

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The members of the SJC Nominating Commission:

Paul T. Dacier, Co-Chair
Executive Vice President and General Counsel
Indigo Agriculture, Inc.
 
Robert Ross, Co-Chair
Chief Legal Counsel fo Governor Charles D. Baker
 
Michael P. Angelini, Esq.
Bowditch & Dewey LLP
 
Roberto M. Braceras, Esq.
Goodwin Procter LLP
 
Laura J. Cervizzi, Esq.
Cervizzi & Associates
 
Patricia Finnegan Gates, Esq.
Mountain, Dearborn & Whiting LLP
 
Kay H. Hodge, Esq.
Stoneham, Chandler & Miller LLP
 
The Honorable Margaret R. Hinkle
Associate Justice of the Superior Court (Ret.)
JAMS
 
Martin W. Healy, Esq.
Chief Legal Counsel and Chief Operating Officer
Massachusetts Bar Association
 
The Honorable Roderick L. Ireland
Chief Justice of the Supreme Judicial Court (Ret.)
Northeastern University, College of Social Sciences and Humanities
 
William F. Kennedy, Esq.
Nutter, McClellan & Fish LLP
 
The Honorable Mary-Lou Rupp
Associate Justice of the Superior Court (Ret.)
Bulkley, Richardson & Gelinas LLP
 
Evelynne L. Swagerty, Esq.
Assistant General Counsel (Ret.)
Bank of America

Lauren Greene Petrigno, Esq.
Executive Director, Judicial Nominating Commission
and Deputy Legal Counsel to Governor Charles D. Baker

—Michael Avitzur
Government Relations Director
Boston Bar Association

Olchowski Decision Is a Win for Access to Justice

We were delighted last week by the SJC’s ruling that unidentified IOLTA funds should be transferred to the Massachusetts IOLTA Committee for disposition, just as the BBA had argued in an amicus brief joined by the Massachusetts Bar Association (MBA) and the Real Estate Bar Association (REBA). 

You can read our statement on the decision here (as well as our initial statement upon filing the brief) and the BBA’s amicus brief here.

A previous Issue Spot blog delved into the issues involved in the case — In the Matter of Gregory M. Olchowski (SJC-12730) — including our concerns about attorney-client confidences, which the Court noted in the opinion, by the late Chief Justice Ralph D. Gants.

Massachusetts Lawyers Weekly reported on the ruling as well (subscription required).

The full decision can be found here, but below are some key excerpts:

Gants for the 6-1 majority:
The question presented in this case concerns the proper disposition of unidentified client funds on deposit in an Interest on Lawyers’ Trust Account (IOLTA or IOLTA account): should they be remitted to the Commonwealth’s general fund under the abandoned property statute, G. L. c. 200A, or to the IOLTA committee pursuant to this court’s inherent authority to govern the conduct of Massachusetts attorneys? We conclude that trust funds on deposit in an IOLTA account do not fall within the statutory definition of “abandoned property” and therefore the disposition of these funds is not governed by G. L. c. 200A. We also conclude that unidentified IOLTA funds should be transferred to the IOLTA committee for disposition, as set forth in this opinion.

As to the first set of required statutory conditions [for “abandoned property”], none of the designated sections [of the abandoned property law] specifically addresses IOLTA accounts, but the Treasurer contends that § 3, which concerns “deposits” of funds, applies to the unidentified funds in IOLTA accounts. We disagree. A careful review of this section reveals that attempting to apply § 3 to IOLTA accounts would be the legal equivalent of trying to fit a square peg into a round hole.


[I]f IOLTA accounts could be deemed “abandoned property” under § 3, the true owners of these funds would not receive notice by the bank that the account was to be reported abandoned (that notice would go only to the attorney whose name is on the IOLTA account), nor be able to take one of the six listed actions in § 3 to prevent their IOLTA funds from being presumed abandoned by the bank.

The claims process established by the Treasurer to allow true owners of presumptively abandoned property to claim those funds also does not fit the unique nature of IOLTA accounts. Under the Treasurer’s regulations, “the original owner” of the funds is required to submit documentation in support of his or her claims. See 960 Code Mass. Regs. § 4.04(1), (2) (2004). But the usual required documentation, such as the monthly statement of the bank or the holder’s certification, is not applicable to an IOLTA account because these documents would not establish a purported owner’s beneficial ownership of the funds.


In short, the careful procedures established by c. 200A to identify presumptively abandoned funds, report and remit those funds to the treasury, and allow the true owner of those funds to reclaim them by proof of ownership simply do not fit when applied to IOLTA accounts.


[I]f the attorney responsible for an IOLTA account is deemed the “holder” of the account [as the Treasurer argued, in the alternative], the Treasurer or her agents “may at any reasonable time and upon reasonable notice examine or audit a holder’s books, papers or other records to verify proper compliance with the reporting requirements of [c. 200A].” 960 Code Mass. Regs. § 4.07 (2004). Section 3 cannot be reasonably understood to mean that, by opening an IOLTA account, which an attorney may be required to do under our rules of professional conduct, the attorney opens the door to treasury agents examining all of his or her books, papers, and other records, which may contain confidential client information, attorney-client communications, or attorney work product. Allowing that to happen in the ordinary course might result in a breach of an attorney’s obligations to his or her client. See Commonwealth v. Perkins, 450 Mass. 834, 851 (2008) (“It is axiomatic that among the highest duties an attorney owes a client is the duty to maintain the confidentiality of client information” [citation omitted]); Mass. R. Prof. C. 1.6 comment 2, as amended, 474 Mass. 1301 (2016) (“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent or as otherwise permitted by these Rules, the lawyer must not reveal confidential information relating to the representation. . . . This contributes to the trust that is the hallmark of the client-lawyer relationship”); Mass. R. Prof. C. 1.6 (providing for protection of confidential client information).


Our conclusion that c. 200A does not govern IOLTA accounts does not mean that there will be no process to identify abandoned funds in IOLTA accounts, to investigate bank and attorney records to determine the true owners of those funds, to restore the funds to those true owners, and to transfer any funds whose true owner cannot be identified despite diligent investigation. It simply means that we must put that process in place through our superintendence authority over the bar and the practice of law. We do so here, and direct this court’s standing advisory committee on the rules of professional conduct (standing committee) to propose amendments to Mass. R. Prof. C. 1.15 to incorporate the following guidance into our rule.


We currently require lawyers to maintain IOLTA accounts only in financial institutions that agree to notify the board when a check is dishonored for insufficient funds. … We shall now require similar agreements to impose an obligation on financial institutions to notify the board when there is no activity in an IOLTA account for more than two years, apart from automatic interest payments to the IOLTA committee.*

* This court’s standing advisory committee on the rules of professional conduct, in proposing amendments to Mass. R. Prof. C. 1.15, may consider whether a different time period is more appropriate to accomplish our purpose for requiring such notification.



Even though the disposition of these funds is not governed by c. 200A because IOLTA funds fall outside the scope of the abandoned property law, we recognize and respect the legislative purpose that all abandoned property be transferred to the general fund. We would, pursuant to our superintendence authority, transfer these funds to the general fund out of respect for that legislative purpose if funds deemed abandoned could never be claimed by their rightful owner. But such claims may be made, with no limitations period, and therein lies the rub.

If we were to determine that unidentified IOLTA funds should be transferred to the Treasurer, we would expect the Treasurer to apply the same claims process to IOLTA funds, which fall outside the scope of c. 200A, as she applies to abandoned funds that are within the scope of c. 200A. Under that process, when someone claims an interest in property surrendered to the State, the Treasurer has “full and complete authority to determine all such claims” and, in doing so, may take testimony under oath, subpoena the attendance of witnesses, and subpoena the production of all “books, papers and documents which may be pertinent to such hearing.” G. L. c. 200A, § 10 (b)-(c). This is precisely the type of inquiry that we are reluctant to relinquish to the Treasurer should a claim be made on unidentified IOLTA funds by an attorney’s client. Attorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences. Any such inquiry by the Treasurer poses the risk of impermissible disclosure of confidential client information, attorney-client communications, and attorney work product. 


We conclude that there is a better approach that is more protective of the confidential information so fundamental to the attorney-client relationship: where bar counsel determines after reasonable investigation that the owner of IOLTA funds cannot be identified or located, bar counsel should request the single justice of the county court to find that the funds are presumptively abandoned and to order the transfer of the abandoned funds to the IOLTA committee. The transfer of these funds to the IOLTA committee, in order to avoid constitutional concerns, carries with it an obligation by the committee to return those funds to their true owner, with interest, if the true owner establishes ownership at any time. Therefore, we will revise our rules of professional conduct to memorialize that obligation after considering language recommended by our standing committee. Where such a claim is made, the investigation of its merits should be conducted by bar counsel, whose obligation to maintain the confidentiality of information arising from an investigation is already established by rule.


Conclusion. In answer to the questions posed by the single justice in his reservation and report, we conclude that unidentified client funds on deposit in an IOLTA account do not fall within the statutory definition of “abandoned property” under G. L. c. 200A; that neither Mass. R. Prof. C. 1.15 nor any other rule of this court presently governs the disposition of such funds; and that such funds shall be transferred to the IOLTA committee for disposition under the conditions set forth in this opinion, which shall later be incorporated in revisions to Mass. R. Prof. C. 1.15. So ordered.

Lowy, dissenting:
The court holds, without an adequate factual record to support it, that Interest on Lawyers’ Trust Accounts (IOLTAs or IOLTA accounts) fall outside the abandoned property act (act), in part because the alternative would allow the Treasurer and Receiver General (Treasurer) to inspect attorneys’ records in a manner that could allow the Treasurer to maintain and to investigate IOLTA accounts, as she does with other abandoned property. This, according to the court, would improperly risk “disclosure of confidential client information, attorney-client communications, and attorney work product,” all of which fall under the attorney-client privilege governed by the judicial branch. Because the court concludes as such, it avoids having to decide whether classifying orphaned IOLTA funds as abandoned property would impede upon the judiciary’s authority under art. 30 of the Massachusetts Declaration of Rights to regulate the practice of law, or whether keeping unclaimed IOLTA accounts within the province of the judiciary would unduly interfere with the executive or legislative powers as outlined in art. 30. 


I, on the other hand, believe that the plain meaning and legislative intent of the act require categorizing unclaimed or orphaned IOLTA funds as abandoned property, a conclusion that prevents us from avoiding the lurking separation of powers issues. I therefore do not believe that we should draw any definitive conclusions from the bare factual record. Instead, we should remand to a trial court to develop a more complete record.


Because IOLTA funds are deposited into “trust accounts” in a bank by attorneys operating on behalf of their clients in a fiduciary capacity, such funds facially qualify as abandoned property under the act absent some compelling factual or legal reason to the contrary.


The court argues that “attempting to apply § 3 to IOLTA accounts would be the legal equivalent of trying to fit a square peg into a round hole.” Statutory interpretation, however, does not pursue a perfect fit when effectuating legislative intent, and some square pegs can fit into round holes.


This apparent “square peg” actually fits quite nicely into the act, even though the statute does not define “owner,” see G. L. c. 200A, § 1, because attorneys acting as fiduciaries have a “legal . . . claim to abandoned property” on behalf of their clients and therefore qualify as “owners” under the Treasurer’s regulations. … Because the attorney is the owner of the IOLTA account, I am not convinced on this record that the bank could not comply with its statutory obligations to notify the owner in advance of reporting the IOLTA account as abandoned property.



[I]t makes logical sense that responsible attorneys would report abandoned IOLTA funds to the Treasurer as abandoned property if they could not contact clients for three years, and that the bank would report the entire IOLTA account if it qualified as presumptively abandoned under the act. See 960 Code Mass. Regs. § 4.02. Although the court claims that this scenario “would be a recipe for confusion,” ante at , the factual record provides no indication of such confusion, especially considering that some attorneys and law firms have reported IOLTA funds as abandoned property. We simply need more information. 


Even if I were to agree with the court’s statutory analysis, my foundational concern about the inadequate record remains for the court’s apparent primary concern: that the Treasurer might need to investigate attorneys’ books to determine to whom the unclaimed IOLTA funds belong, see G. L. c. 200A, § 10 (b)-(c), or to ensure that attorneys complied with their requirements as holders. See 960 Code Mass. Regs. § 4.07 (2004). The court raises the understandable concern that “[a]llowing [such an investigation] to happen in the ordinary course might result in a breach of an attorney’s obligations to his or her client,” ante at , but only hints at the secondlevel implication of that statement; allowing the Treasurer such access as the statute would require might invade upon the judiciary’s art. 30 power to protect attorney-client privilege and attorney confidentiality as part of its power to regulate the practice of law. 


Of course, the court does not need to reach whether those fears would come true, because its version of statutory interpretation keeps IOLTA accounts outside the realm of abandoned property and therefore out of the possible reach of the Treasurer. The court accordingly has no obligation to provide evidence that such breaches occur or that investigations by the Treasurer would impede upon our art. 30 authority. I view the matter differently. 


Because I conclude that orphaned IOLTA funds qualify as abandoned property under the act, we can only keep the Treasurer from exercising her statutory obligations regarding those funds based on some interpretation of our constitutional authority to regulate the practice of law. We could hold that the act is unconstitutional as applied to orphaned IOLTA funds, or we could craft an alternative solution that gives the Treasurer control over the orphaned IOLTA funds without unduly impeding the attorney-client privilege. Either solution necessarily implicates separation of powers concerns, as both could interfere with the Legislature’s and the executive branch’s powers under art. 30. In sum, concluding that unclaimed IOLTA funds constitute abandoned property requires me to consider how the court’s proposed solution, one that still might be constitutionally or statutorily permissible even though I determined that IOLTA accounts are abandoned property under the act, affects art. 30, and to consider whether it does so appropriately on the facts before the court. 


Before we reach such a significant decision, I believe that we need a factual record to help answer critical questions beyond the bare joint statement of facts presented to the single justice. The record does not reflect whether investigating unclaimed funds in IOLTA accounts would necessarily violate the attorney-client privilege. 

The amicus briefs presented by the Boston Bar Association and others and by the Board of Bar Overseers (BBO) suggest that it does [emphasis added], but the factual record only explains that a financial investigator subpoenaed records from banks and examined records held by Gregory M. Olchowski’s former accountant. There is no indication that the investigation necessarily pierced the veil of attorney-client privilege, which, if accurate, would lessen the art. 30 concerns for orphaned IOLTA funds constituting abandoned property because the Treasurer would not therefore be impeding upon the judiciary’s art. 30 authority to regulate the practice of law.


[Footnote: The court contemplates that someone will have to review attorney-client privileged materials to determine the true owners of the IOLTA funds, but it does not discuss any precise procedures for doing so beyond keeping the funds within the judiciary and having the BBO conduct an inquiry in a manner similar to how it assesses attorney accounts during disciplinary procedures. There may be alternatives. For example, it may be constitutionally permissible to require that the Treasurer transfer investigatory responsibilities to an agent of the judiciary, namely the BBO, if an examination of orphaned IOLTA accounts threatened to pierce the veil of attorney-client privilege. It also might be possible to maintain the privilege if the BBO hired outside counsel to conduct the review. It may even be possible to rely on an interpleader action, with the Treasurer and the IOLTA committee as nominal parties, so that the unclaimed IOLTA funds are deposited with the court until appropriate disposition of the matter. See Mass. R. Civ. P. 67, 365 Mass. 835 (1974). Perhaps these ideas would not be possible or constitutionally permissible, but the parties understandably did not brief this matter.]

BBA Legislative Alert: Help Secure Fairness for Non-Citizen Taxpayers

As you may know, the BBA recently endorsed legislation that would eliminate an unjust disparity in the federal CARES Act’s treatment of taxpayers who use an Individual Taxpayer Identification Number (ITIN), as well as their families, leaving almost all of them ineligible for stimulus payments of up to $1,200 per person, despite paying the same share of taxes as those who file with a Social Security Number.  

We submitted testimony to the Legislature’s Joint Revenue Committee, urging them to give the relevant bills a favorable report, so the full body can vote on the measures. And the Boston Globe has since lent its support

Now you can help, too: The legislation faces a committee deadline of June 16 and may be rendered effectively dead for the year if not reported out by then. If you have a moment this week to contact your state Senator and Representative, by phone or e-mail, please ask them to express their support for S. 2659 and H. 4726 to the Revenue Committee chair and to Senate or House leadership. 

You can find more background in our testimony and in a fact sheet by the Massachusetts Budget and Policy Center. Thanks for your support!

Immigration Update: June 2020

Since we published our Immigration Principles in 2018, we have been tracking a number of immigration-related issues and have regularly posted updates on our Issue Spot blog. Our most recent update was posted shortly after Governor Charlie Baker declared a state of emergency in Massachusetts as a result of the coronavirus pandemic. Since then, immigration policies have continued to change and have gone largely unnoticed as the pandemic dominates local and national headlines. This is an update on some of the most recent immigration-related news and changes to previous policies.  

USCIS 

The United States Citizenship and Immigration Services (USCIS) is the agency primarily responsible for the issuance of visas, green cards, and naturalization services. The COVID-19 pandemic has significantly reduced the number of people travelling and applying for visas to enter the United States, which has caused USCIS revenue to plummet, as it relies mainly on application fees to fund its operations. The institution said that it could run out of money by the summer and has sought out a $1.2 billion cash infusion from Congress in order to stay afloat. 

Late last year, the agency announced application fee increases. According to the Migration Policy Institute, “the increases USCIS proposed in mid-November (there are a few categories where application fees would decrease) are significant but not unprecedented. Since the agency was established in 2003 as part of the creation of the Department of Homeland Security (DHS), which absorbed the functions of the earlier U.S. Immigration and Naturalization Service (INS), fees have been adjusted five times”. Immigration advocates criticized the increases for having the covert intention of limiting low-income applicants’ ability to apply for asylum, green cards, and naturalization.  

Now, application fees are poised to increase again as a result of the decrease in application numbers. Advocates claim that the need to increase fees is a result of USCIS’s lack of efficiency and excessive vetting process that has caused every application to take longer to review. Some critics said that the agency was ill-prepared for the economic shock from the coronavirus pandemic because of policies that had rendered its adjudication process less efficient while bloating its payroll. “This administration has made every single application much more expensive and time-consuming to adjudicate,” said Doug Rand, who worked on immigration policy in the Obama administration. 

In our 2018 Immigration Principles, we refer to an American Bar Association (ABA) Resolution from 2007 that reports the proposed naturalization and immigration fee increases at the time. The Resolution states that, “the new fees may place naturalization and other immigration benefits out of reach of many low-income immigrants. Application fees should not be so excessive as to prevent otherwise eligible individuals from accessing benefits, and USCIS initiatives that benefit the public as a whole should be funded through federal appropriations rather than through application fees”. The BBA endorsed this regulation and holds that it would be unjust for application fees to be the reason why somebody is unable to apply to adjust their status.  

The fees remain unchanged for now. The Federal Register has posted three public notes about them, attracting more than 40,000 public comments that the agency is mandated to review before announcing a final rule.

Deportation of Refugees and Children at the Border 

Under the guise of battling the threat presented by COVID-19, President Trump has used the nation’s public health laws as an excuse for summarily deporting refugees and children at the border. On March 20, 2020, the Centers for Disease Control (CDC) issued an order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The order was issued simultaneously with an emergency Department of Health and Human Services (HHS) Interim Final Rule based on the authority of an obscure provision of the 1944 Public Health Service Act. According to Just Security, based out of the Reiss Center on Law and Security at New York University School of Law, “Section 362 of that Act authorizes the Surgeon General to suspend ‘introduction of persons’ and ‘introduction to communicable diseases’ into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (TVPRA)”.  

The CDC order directly impacts those traveling to the United States by land, coming from Mexico and Canada. It claims to serve the purpose of preventing immigrants from congregating in large groups and limiting the possibility of new infections being brought into the country. However, critics claim that this policy distracts from meaningful measures to prevent the spread of the coronavirus and undermines confidence in the CDC. The Border Patrol is carrying out the CDC directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. More than 20,000 people have been deported under the order, including 400 children in just the first few weeks. The order was justified as a short-term emergency measure. However, it is now known that the Trump administration plans to extend the border restrictions indefinitely, until the director of the CDC no longer identifies the virus as a threat.  

“This ban was never about the pandemic, and it was never about public health,” said Charanya Krishnaswami, an advocacy director for Amnesty International. “As [the] news makes clear, the Trump administration is weaponizing COVID-19 to achieve the policy objective it’s sought from Day 1: shutting the border to people seeking safety.” Advocates add that there are no such measures for truck drivers travelling from Canada and Mexico for commercial or educational purposes and that the restrictions that exist do not apply at all to airplane travel.  

Ban on Issuance of New Green Cards 

On April 21, President Trump tweeted that he would order a temporary halt on issuing green cards to prevent people from immigrating to the United States, citing the exponential increase in unemployment claims due to the coronavirus pandemic and the need to protect American citizens’ job security from non-citizens seeking employment in the U.S. Trump said that his order would initially be in effect for 60 days, but that he might extend it “based on economic conditions at the time”. 

The BBA asserts that “immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country”. It sides with the numerous studies that outline how immigration boosts, rather than suppresses, the American economy and job growth. There is no evidence to show that limiting legal immigration will result in greater job opportunities for citizen workers. In fact, last month, BBA President Chris Netski issued a letter to Acting Secretary of Homeland Security Chad F. Wolf, urging him to leverage the authority of the Department of Homeland Security (DHS) to enlist the help of noncitizen healthcare workers in the fight against COVID-19. In the Presidential Proclamation, President Trump outlines that this temporary ban will not impact “any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional”.  

Still, it is predicted that Trump’s proclamation will block as much as a third of all the people who would otherwise be approved for a green card each year. This will especially affect family-based green card applicants applying from abroad and will effectively terminate the Diversity Visa program. This order adds to claims that the Trump administration is utilizing the COVID-19 crisis to push forth harsh immigration policies that have nothing to do with public health protections. 

On May 13, the DHS responded to our letter and seemed to deny they have any authority, even in an emergency, to grant parole or deferred action to non-citizen health workers who could save lives in this pandemic. We were disappointed with this response and will continue to advocate for this and for ensuring that immigrants are not impacted by public charge regulations when seeking out testing and treatment for COVID-19.

Infection Within ICE Detention Centers  

In a May 22 letter, BBA President Chris Netski addressed a spreading COVID-19 crisis behind the walls of prisons, jails, and detention centers in Massachusetts, which threatens to expand into the broader community. “In the midst of a pandemic, congregate housing of incarcerated individuals, pre-trial and immigration detainees, and people held on civil commitment presents urgent challenges that call for comprehensive action by all three branches of government,” said the letter.

There is growing evidence that infections are rampant within Immigration Customs Enforcement (ICE) detention centers, and that law enforcement is not doing enough to test detainees and prevent further infection. Andrea Flores, Deputy Director of Policy, Equality Division at the American Civil Liberties Union (ACLU), issued a statement claiming that “people in detention centers are sitting ducks for the spread of this virus”. 

On March 26, 2020, Lawyers for Civil Rights (LCR) filed an emergency class action[link?] against ICE and the Bristol County Sheriff requesting immediate relief on behalf of a putative class of highly vulnerable civil immigration detainees who are at imminent risk of contracting COVID-19. U.S. District Court Judge William Young found both the sheriff and ICE have deliberately disregarded the health of detainees in their care amid the COVID-19 pandemic. Young ordered immediate, widespread testing — at ICE’s expense — of ICE detainees, as well as staff who may have come in contact with them. As of May 7, 2020, the class action had resulted in the release of 50 detainees. The BBA has been tracking this case and is pleased to see this positive outcome. 

The ACLU of Rhode Island also filed a class action lawsuit on May 15 against DHS, ICE, the local ICE field office, and the warden of the Donald W. Wyatt Detention Facility in Central Falls, Rhode Island. The suit, filed as a habeas corpus petition, seeks urgent relief for a class of over 70 immigration detainees at the facility. It names three detainees who have underlying conditions that put them at a heightened risk of death or serious illness if infected with COVID-19. However, the class-action petition argues that all of the ICE detainees at Wyatt are at “unreasonable risk” of COVID-19 infection due to the conditions at the facility, and should therefore be released or placed in community-based alternatives to detention. It cites a recent study which projects a “significant impact on immigrants and local health care if ICE detention populations are not decreased”.  

-Lucia Caballero
Government Relations Assistant
Boston Bar Association