Legislative Update

Last week’s meeting of the BBA Council was heavy on policy matters, with the board voting to take positions on three important pieces of legislation.

Mandatory Minimums and Juveniles

As you probably know, the BBA has long opposed mandatory minimums across the board. And both our 2017 report on criminal-justice reform and a pair of recent SJC cases in which we filed amicus briefs make the argument that juveniles deserve special treatment when charged with criminal offenses.

These issues coincide in the Give Youth a Future bill — filed for the first time this session by Sen. Jamie Eldridge and Rep. Liz Miranda — which has been receiving some attention. The legislation, which would prevent juvenile adjudications from acting as predicate offenses to trigger enhanced sentencing for certain gun crimes, was filed in response to an SJC ruling in Commonwealth v. Baez. In that 2018 case — where the defendant’s sentence was seven times longer, based on two offenses committed at age 15 — the late Chief Justice Ralph Gants urged “the Legislature to consider the wisdom and fairness of the mandatory-minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.” 480 Mass. 328, at 332.

The bill is premised on solid scientific research from recent decades, recognized by judges from the US Supreme Court down, that because minors are not capable of the same level of rational decision-making as full-fledged adults, and are more susceptible to peer pressure and impulsive thoughts, it is unjust to hold them to an adult standard, or to sentence them as adults. The legislation would specifically amend M.G.L. c. 269, s. 10G (sometimes referred to as the Armed Career Criminal statute) to exclude juvenile adjudications as predicates and provide for resentencing of anyone currently serving such a sentence, including those on probation or parole.

Remote Participation in Non-Profit Member Meetings

Among the emergency measures adopted by the State Legislature at the start of the
COVID-19 pandemic was a provision in Chapter 53 of the Laws of 2020, enacted on April 3,
that, in Section 16, authorized remote membership meetings for non-profits.

The law set an expiration date for these provisions of 60 days after the end of the state of
emergency as declared by the Governor. With that emergency having concluded on
June 15, this section will expire on August 14. Non-profits are keen to have some certainty in this area, so that they can plan upcoming meetings in conformance with whatever the law requires at the time, and on June 16, the Governor signed into law a bill that would extend the relevant language until December 15.

The BBA has signed onto a proposal, developed by our Chapter 180 Working Group, that would permanently codify the authority of a non-profit’s board—unless otherwise provided in the articles of organization or bylaws—to hold remote member meetings. In addition—subject to the articles and bylaws or guidelines and procedures adopted by the board—members participating remotely can take part and vote, even if the meeting itself is
being held in-person, if:

  • reasonable measures are in place to verify each person’s membership status;
  • such members are given a reasonable opportunity to participate and vote on matters submitted to the members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and
  • a record of any such vote or other action taken remotely is maintained by the corporation.

These changes are generally aligned with the Model Nonprofit Corporation Act and would
modernize the conduct of membership meetings in keeping with best practices.

Management of the Probate & Family Court

The Board also voted to add the BBA’s voice to those of many who practice in the Probate & Family Court — including the Massachusetts Lawyers Weekly editorial board (pay-wall) — and are expressing great concern about legislation that would shift administrative and personnel oversight within the court from judicial leadership and their appointed staff — such as judicial case managers and assistant judicial case managers — to elected Registers of Probate.

Currently, staff under the oversight of the Chief Justice and First Justices work closely with the judges to handle the voluminous cases that are filed each year. These professionals act in concert with the judges and as a liaison to the bar — and especially pro se litigants. Registrars, unlike Judges, are elected positions, so the bill could result in a vast turnover of staff, which in turn would cause severe disruption to an already overloaded system. In turn, this would negatively affect litigants’ access to justice.

The bill eliminates the role that the Court’s judicial leadership plays in hiring and in ensuring that staff assignments reflect their expertise for efficient court operations. The Council’s vote does not reflect the view that there is no room for improvement in the Court’s efficiency, but rather that this legislation would be a step in the wrong direction.

For the remainder of the current 2021-22 legislative session, we’ll be advocating to the Legislature for these positions. And we’ll keep you apprised here of any developments before that session formally wraps up on July 31 next year.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Looking Back: The BBA’s History of Supporting LGBTQ+ Rights

In celebration of Pride Month, we wanted to take a moment to update our 2018 Issue Spot post tracing the BBA’s own long history of supporting LGTBQ+ rights…

To begin, we have to go back nearly 50 years, when then-President Edward J. Barshak wrote to leaders and members of the Bar to ask them to reassess the role a bar association should play in important public matters that some could perceive to be “political.” In a list of percolating issues that could fall within that category, President Barshak included anti-discrimination protections for lesbian and gay individuals in the Commonwealth.

One of the reasons why this may have been on the top of the mind of President Barshak in 1974 is because Massachusetts first introduced an anti-discrimination law that would protect “homosexuals” from discrimination in employment, housing, credit, and public accommodations in 1973. It took nearly two decades for the Legislature to pass these important protections, and even still, when the bill eventually passed in 1989, Massachusetts was only the second nation in the country to enact a statewide sexual orientation anti-discrimination law. Though not perfect by any means, the legislation offered a significant set of protections and allowed the Massachusetts Commission Against Discrimination to have jurisdiction over complaints based on sexual orientation. The BBA was proud to stand in support of passage of this law, more than three decades ago.

Given this history, it only makes sense that when Massachusetts began to consider expanding these anti-discrimination protections to cover gender identity, the BBA would join in support. That’s why, in 2007, the BBA Council voted to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. The proposed law included protections in employment, housing, credit, higher education, and public accommodations. You can read the BBA’s past testimony in support of that legislation here.

We continued to advocate for these protections until the law eventually passed in 2011, but the final version differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. The fight for full protections, including public accommodations, continued until 2016, when An Act Relative to Transgender Anti-Discrimination was enacted and protections were extended to these spaces. We celebrated the long overdue inclusion of this important provision.

However, that was not the final word, because opponents of the new law used the referendum process to put its repeal before the voters in 2018. In defense of the law, we joined the Freedom for All MA Coalition that led this effort, mobilized our members, and celebrated a historic victory when, by a vote of more than 2 to 1, Massachusetts became the first state to maintain transgender protections at the ballot box. The BBA later honored the “Yes on 3” campaign, at that year’s Beacon Awards for Diversity & Inclusion (more on which below), with the Empowerment Award, given annually to “a powerful advocate who works to create systemic change in the wider community, advancing civil rights, access to justice, and/or diversity and inclusion, and amplifying the voices of underrepresented groups”.

In addition to being on the forefront of offering anti-discrimination protections, Massachusetts also famously led the way on marriage equality, becoming the first state in the country to legalize same-sex marriage. The BBA has a long history in support of marriage equality, beginning in 2002, when we became one of the first bar associations in America to file an independent amicus brief in Goodridge v. Department of Mental Health, arguing that denying civil marriage licenses to same sex couples is a violation of the Massachusetts Declaration of Rights.

This brief was just the beginning of more than a decade of work in support of state and nationwide marriage equality, culminating in the right to marry that same sex couples enjoy throughout the nation today. A few highlights of that work:

  • In 2005, we drafted an amicus brief in Cote-Whiteacre v. Dept. of Public Health supporting the position of Gay and Lesbian Advocates and Defenders (GLAD). In that brief, we argued that the 1913 statute preventing non-resident couples from marrying in Massachusetts if the marriage would be void in their home state, was unconstitutional.
  • In 2011, we signed on to an amicus brief in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, and Nancy Gill et al. v. Office of Personnel Management, et al., arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief related to two cases involving a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.
  • In 2013, we joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations and signed onto amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both briefs, amici urge the Court to presume the “unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.” Read then-President J.D. Smeallie’s statement on the “historic victory for marriage equality” following the decision in Windsor, when the court ruled that the federal Defense of Marriage Act violated the U.S. Constitution.
  • Finally, in 2015, the BBA celebrated the decision in Obergefell v. Hodges, with then-President Julia Huston stating: “Today, the U.S. took a substantial step closer to truly ensuring equal justice for all. The Boston Bar Association could not be more pleased with the historic decision of the U.S. Supreme Court to recognize marriage equality. Same-sex couples have been denied a striking number of core rights and protections, which are automatically granted to married couples. This discrimination is unacceptable, unconstitutional, and thankfully now in our past.”

While we celebrated the final resolution of same-sex marriage in 2015, the BBA began its work on another important piece of legislation in the Commonwealth: a bill to ban the use of so-called “conversion” or “reparative” therapy by licensed professionals on minors, allegedly to “cure” them of homosexuality. It took four years for the legislation to be enacted, but that protection has been in place since 2019.

We have turned our attention since then to the issue of co-parent adoption, last year endorsing legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples. It is especially important to enact such legislation in Massachusetts because this happens to be the state with the highest use of assisted-reproduction technologies. The BBA will be working to support its enactment during the current legislative session.

Of course, the BBA’s support of LGBTQ+ attorneys and individuals extends beyond legislation and amicus briefs. Nearly 25 years ago the BBA Council unanimously approved a policy reducing its membership fees for Massachusetts Lesbian and Gay Bar Association, now the Mass. LGBTQ Bar Association, members according to the same fee schedule offered to members of other affinity bar associations. In 2010, the BBA was proud to be able to institutionalize its partnership with six local affinity bar associations, including the MA LGBTQ Bar Association, and provide a permanent home for them at 16 Beacon.

Also in 2010, the BBA launched the Beacon Award, recognizing outstanding efforts in diversity and inclusion by honoring an individual, organization, group, or firm that demonstrates exceptional leadership in creating a more diverse and inclusive legal profession in Boston. At the 3rd Annual Beacon Award in 2012, the BBA was proud to honor GLAD and the Massachusetts Attorney General’s Office for their work to defeat (DOMA) and protect same-sex marriage.

The Boston Bar Foundation (BBF) also plays an important role in this history, and it has made grants to a number of legal aid and advocacy organizations that champion LGBTQ+ rights and work to protect and fulfill legal protections for LGBTQ+ individuals. Additionally, in 2017, the BBF made a grant to the Massachusetts Trial Court to fund the development of a training module for court employees on serving and interacting with transgender court users and co-workers. The training aims to increase the experience of dignity and respect for all people using the courts, to promote inclusivity in our justice system, and to ensure equal access to the courts for all residents of the Commonwealth.

While there is much to celebrate about the progress made, both as an association and as a Commonwealth, much hard work remains. The past several years have been challenging for members of the LGBTQ community. One need look no further than the continued assaults on transgender rights elsewhere in the US. We spoke up when the previous administration in Washington sought to curtail LGBTQ protections, and we’ve been quick to praise the current administration as they move to undo these steps and make further progress.

And when the SJC Committee on Lawyer Well-Being recently released its Report Summarizing Affinity Bar Town Hall Meetings, we urged our members to read it in full, to take in its disturbing findings — and then to act on them, “to engage, ask if we can help, question the differential treatment, be an ally. We cannot remain silent. … We pledge to continue to work closely with our members and our affinity bar partners to ensure that the extraordinary challenges underrepresented and historically excluded lawyers face—so dramatically illustrated by the Report—are addressed, day in and day out, as a central part of the BBA’s mission, until they are eliminated.”

We hope you’ll join the BBA in celebrating Pride by recommitting to this fight.

—Michael Avitzur
Government Relations Director
Boston Bar Association

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.

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.


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.)
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.]