Monthly Archives: February 2012

Pro Hac Vice Proposal Progresses

Last week the Supreme Judicial Court’s (SJC) Rules Committee requested public comment on proposed Rule 3:15, which would institute a pro hac vice admission fee in Massachusetts.  As Issue Spot reported last November, the Massachusetts Access to Justice Commission (AJC) petitioned the SJC to adopt this rule in hopes of developing another source of funding for legal aid.  When the BBA Council met in November, there was unanimous support for the AJC’s proposal.

The new pro hac vice fee of $300 per case would be imposed on out-of-state lawyers seeking to appear in Massachusetts Courts except if the attorney is providing pro bono legal assistance to an indigent client.  Under Rule 3:15, the proceeds from the pro hac vice fees would be given to the IOLTA Committee and distributed by it, in the same proportions as other IOLTA revenue – to the Massachusetts Legal Assistance Corporation, Massachusetts Bar Foundation and Boston Bar Foundation.  A small portion of the fees will go to the Board of Bar Overseers for administration purposes.  Forty states and the District of Columbia already have such a rule.

One ancillary benefit. . . Court clerks are also looking forward to Rule 3:15 because it will help bring consistency to how these pro hac vice cases are handled.  Right now there is no way of monitoring the number of attorneys who appear pro hac vice in Massachusetts.  Rule 3:15 will formalize the pro hac vice admission process and help court personnel track how many out-of-state attorneys appear in Massachusetts courts.

The next step in the process to implement the admission fee is to collect public comment.   Proposed Rule 3:15 is out for public comment until March 9th.  After the deadline has passed, the SJC Rules Committee will review the comments and make a recommendation to the Justices of the SJC.  Once a recommendation has been made, the Justices will consider the Rule in an administrative session.  Likely, the proposed Rule would be considered by the Justices in late spring.

Instituting a pro hac vice admission fee will never replace the funds provided by Massachusetts IOLTA accounts before interest rates plummeted and transactions slowed. That being said, proposed Rule 3:15 would help plug the gap and help increase funding for legal services in Massachusetts is worthwhile.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Legal Services Corporation Seeking More Federal Funds

On Monday, President Obama released his budget for Fiscal Year 2013.  The $3.8 trillion budget included $402 million for the Legal Services Corporation (LSC) – which is a 15% increase over LSC’s current budget of $348 million.  While any increase can be viewed as good news, President Obama’s plan provides $68 million less than the LSC budget request of $470 million for FY 2013.  As we’ve written about before in Issue Spot, Massachusetts has four LSC-funded programs: the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy.  These programs provide essential services to some of the most vulnerable people in society.

LSC funding was approximately $404 million in FY 2011 before falling to $348 million last year.  According to the LSC press release sent out on Monday, that drop has resulted in attorney layoffs at legal services programs across the country and the closure or projected closure of 18% of LSC-funded programs.

How is the BBA helping?  As part of our commitment to LSC, we participate in a grassroots legislative advocacy effort coordinated by the American Bar Association (ABA).  We’ve been doing this since 2002 when the BBA Council voted to join the ABA in advocating on behalf of civil legal services provided through the Legal Services Corporation (LSC) funding.

When the ABA approached the BBA to get involved, Senator Edward Kennedy – a leading advocate for the creation of LSC back in the 1970’s – and Senator John Kerry were already very involved in this issue.  The ABA hoped to get enough support in the Senate to help build a broad based coalition in the House during the final budget deliberation.  Since then, the BBA has joined with the ABA and other bar leaders in lobbying efforts for LSC funding every year.  In April, we will travel to Washington D.C. again to take part in ABA Day.  We will spend time with our congressional delegation discussing the importance of civil legal aid.

In most cases, we will be thanking our delegation for their continued support of legal services and describe the current state of civil legal services in Massachusetts.  We’ll also ask them to make funding for LSC a priority and discuss it with their colleagues who may not hold support for civil legal aid in the same regard.  Being from Massachusetts, we’re often told how different our experience is from our bar colleagues in other parts of the United States.  There isn’t always a shared appreciation between the bar and members of Congress for the need for funding for civil legal services.  Even though the BBA’s job may be comparatively easier, it’s just as critical that we are there in person delivering the important message to our delegation.  This year we will ask our delegation to support a 35% increase to bring LSC funding to the requested level of $470 million.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association

Access to DNA Bill to Gov’s Desk

Wednesday was an eventful day on the House floor.  Early Tuesday evening, the BBA was notified that the Access to DNA bill (S 1987) would be taken up by the full House the very next day.  As we reported in Issue Spot last summer, the Senate unanimously passed the bill in July.  With yesterday’s passage in the House, the bill is now on its way to Governor Patrick’s desk.

Before the DNA bill was taken up, House Speaker Robert DeLeo gave his annual address to the full House (read text or watch video).  The Speaker used the opportunity to outline his agenda for the remainder of the session.  Shortly after the Speaker made his remarks, House Chairman of the Judiciary Committee Eugene O’Flaherty introduced the DNA bill.  Chairman O’Flaherty, who in past sessions actually sponsored the DNA bill, has always been a strong advocate of this legislation.  Chairman O’Flaherty described the legislation as “monumental,” and went on to say that “what is in front of you today is a piece of legislation all of us can be very proud of.”

O’Flaherty then introduced his Vice-Chairman, John Fernandes, who sponsored the bill this session in the House.  He described the story of Kenneth Waters who spent 18 years in jail for a crime he did not commit and then outlined the provisions of the bill.  Representative Fernandes noted that this bill has been around for several legislative sessions but it was the BBA’s Task Force (Issue Spot wrote about them here) that was able to carve out the objections and create a bill that was acceptable to everyone.  S 1987 has the support of the Massachusetts Attorney General, the Massachusetts Chiefs of Police Association and most of the District Attorneys.

As with any new legislation, people want to know “what’s it going to cost?”  Fortunately, this bill will cost the state very little.  The bill requires that any individual filing a motion for testing bear the cost – to the extent they are able to – and there is federal funding through the Department of Justice that specifically off-sets the costs of post-conviction DNA testing.

Rep. Fernandes said that whatever the members’ doubts have been about costs or impact, it has to be overcome by our obligation to get it right.  He gave a few quick stats:

  • There have been over 280 cases across the US in which post-conviction access to DNA testing has led to releases or reversals of decisions – some of which have led to the conviction of the actual perpetrator.
  • 17 cases involved persons on death row.
  • The average length of time served by those wrongfully convicted is 13 years.

Rep. Fernandes concluded by saying, “We hold freedom highest among the rights that we cherish.  One day, one week, one year, is too long for anybody [who is wrongfully convicted] to be held in prison.”

Following the remarks on the House floor, the DNA bill passed unanimously.  Since there were no changes from the version the Senate passed this summer, the bill goes directly to the Governor’s desk and he has 10 days to sign it.  Assuming the Governor signs it – and indications we have suggest he will – the legislation will become law after 90 days.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

BBA Bills Advancing

Just over a month into 2012, and the legislative year has been marked by a flurry of activity at the State House.  Here’s a quick update on a few of the issues important to the BBA:

  • Today, the Legislature advanced S 2112, a $130 million Supplemental Budget.  Supplemental budgets provide additional funding to programs with a funding shortfall and are intended to address changes in program costs or revenue collections.  Supplemental budgets don’t typically include legislation.  This Supplemental Budget includes a much-needed additional $1 million for the Massachusetts Legal Assistance Corporation (MLAC) for fiscal year 2012, which ends June 30th.
  • While the House debated the Supplemental Budget, Representative Winslow and Representative Peisch filed an amendment that would help mitigate the potential for Massachusetts double taxation with respect to most 2010 decedents.   The BBA watched this closely knowing the impact this amendment would have on trusts and estates in Massachusetts.  The amendment was unanimously supported in the House but, unfortunately, it was not taken up by the Senate.  The final Supplemental Budget included the additional money for MLAC but did not include the important language regarding the Massachusetts income tax basis.
  • At the same time, the Joint Committee on Revenue voted favorably on H 3915, An Act to Continue Tax Basis Rules for Property Acquired from Decedents.  H 3915 mirrors the amendment to the Supplemental Budget and seeks to accomplish the same thing.  This bill is currently being reviewed by House Ways & Means.  H 3915 is a new draft of H 2995, a bill that Representative Peisch filed on behalf of the BBA at the beginning of this session. While the amendment filed to the House budget and H 3915 are not quite the solution the BBA had wanted – i.e. full step-up regardless of year of death and regardless of what election is made federally for 2010 – it is an improvement on the recent Department of Revenue Directive 11-7.
  • Also this week, House Ways & Means reported S 1987, An Act Providing Access to Forensic and Scientific Analysis favorably.  It appeared that the House would be voting on it on Wednesday during their formal session but the session was cancelled due to the memorial services for former Boston Mayor Kevin White.  Now, it looks like the House could be voting on this important bill as early as next week, thanks to Representative John Fernandes’ great leadership on this issue.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association