Monthly Archives: April 2013

Judiciary Budget Update: House Responds to Our Concerns

Last night, the Massachusetts House passed a $34 billion budget bill after three days of deliberations.  Thank you to everyone who took the time to make visits, send emails and make calls to your representatives- it made a difference.

Here are the highlights. . .

The two outside sections of the budget that were of great concern to the Committee on Public Counsel Services were not adopted by the House.  These outside sections would have created an indigent defense committee charged with awarding 25% of District Court cases in Middlesex County to attorneys affiliated with private or non-profit entities on a capped flat fee basis.

The Massachusetts Legal Assistance Corporation ended up with $13 million in the House budget.  While this is not the $15.5 million that MLAC requested, it is $1 million more than last year’s appropriation.

As for the Judiciary, the good news was that the House unanimously approved a pay raise for all Trial and Appellate judges for the first time since 2006.  The increase would take effect in three steps starting January 1, 2014.

For Trial Court Judges the compensation levels would increase as follows:

  • January 1, 2014    $144,694
  • July 1, 2014         $154,694
  • July 1, 2015         $159,694

Appellate court judges also received comparable dollar increases.  During the budget debate, Judiciary Chair Eugene O’Flaherty took the lead on this issue.  He and other members of the House spoke persuasively about the need for an increase in judicial compensation for the Massachusetts Judiciary.

In addition to the judicial pay raise, the Trial Court received an additional $6 million, bringing their appropriation up to $573.8 million.  This is still $15. 7 million less than their maintenance budget request for Fiscal Year 2014.

Please be sure to thank your own representative for supporting and advocating on behalf of these important issues.  The budget process now moves to the Senate where it will be debated in May.   After that, a conference committee will aim to deliver a final budget in time for the July 1 start of Fiscal Year 2014.

There’s still work to be done.  As for MLAC, we will continue to work to bring that number back up to $15.5 million in the Senate.  For the Judiciary, we will focus on the Trial Court’s maintenance request and bringing the judicial compensation increase as close as possible to the recommendations of the Guzzi Report– something that we, too, support.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

House Budget Comes Up Short for Judicial System

There’s not a lot of good news in the $33.8 billion House Ways and Means budget released last Wednesday…..the Massachusetts Legal Assistance Corporation (MLAC), the Judiciary, and the Committee for Public Counsel Services (CPCS) are all woefully underfunded.  The House Ways and Means recommended level funding for the District Attorney’s Offices in its budget.  However, given the magnitude of resources that will be needed to respond to the drug lab crisis — which is certainly going to be a long term issue — level funding will not nearly be enough.

In addition to being underfunded, CPCS is also deeply troubled by two outside sections of the budget, Section 81 and Section 82, which would dramatically change how cases are handled at CPCS.  If adopted, these outside sections would create an indigent defense committee charged with awarding 25% of District Court cases in Middlesex County to attorneys affiliated with private or non-profit entities on a capped flat fee basis.  Private bar advocates currently handle these cases.  Representative Angelo Scaccia filed Amendment 334 to strike the two outside sections.

Here’s a closer look at the proposed budget…..

The Massachusetts Legal Assistance Corporation – MLAC’s requested $15.5 million for its FY 14 budget.

  • House Ways & Means proposed budget:  $11 million
  • Governor’s proposed budget: $15.5 million

Representative Ruth Balser filed Budget Amendment #536 which, if adopted, would restore the MLAC line item to $15.5 million.  For the latest information on MLAC, check out their fact sheet.

The Massachusetts Trial Court – The Trial Court’s maintenance request for FY 14 was $589.5 million, which included funding for a judicial pay raise.

  • House Ways & Means proposed budget:  $567.8 million
  • Governor’s proposed budget: $577.7 million

Representative Eugene O’Flaherty filed Budget Amendment #232, which would restore the Trial Court’s funding to their maintenance request of $589.5 million.  The Trial Court’s graph demonstrates the dramatic decline in personnel and helpful information on their case filings and funding.

Additionally, Representative O’Flaherty has also filed Budget Amendment #226 to restore the Appeals Court line item and Budget Amendment #228 to restore the Supreme Judicial Court line item.

When debate on the House budget is over at the end of next week, the Senate will have an opportunity to debate its version of the budget in May. Stay tuned.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

Insight into the Role of the BBA’s Ethics Committee

Obeying the law, avoiding conflicts of interest, and putting a client’s needs first may seem straightforward or a matter of professional common sense, but these things aren’t always simple.  As law practice has become more complex, so have the professional rules governing practicing law—at least in their practical application.  Common ethical issues arise in the areas of client communications, the management of client money, fee arrangements, the handling of confidential information, and the act of withdrawing from a matter in an ethical manner.

It’s the Supreme Judicial Court of Massachusetts that sets forth the Rules of Professional Conduct that govern our profession and establish the minimum ethical standards for practicing law.  In Massachusetts, the Board of Bar Overseers and the Office of Bar Counsel are designated to deal with lawyer disciplinary actions or grievances.  Somewhere in between the framework of the Rules and the role of the Board of Bar Overseers is the BBA’s Ethics Committee and the role that it plays.

Broadly speaking, the BBA’s Ethics Committee provides guidance to lawyers who are uncertain about how to practice in the context of the Rules.  The Committee issues formal advisory opinions that address a particular issue related to the ethical practice of law or the Rules of Professional Conduct.  At times, the Ethics Committee also provides informal guidance to BBA leadership, sections, staff or members with respect to the interpretation of the Rules.

Some examples of formal opinions that have been issued by the BBA’s Ethics Committee in the past include procedures for lawyer referral services, bankruptcy pro bono initiatives, the “do’s and don’ts” of revealing “conflict-checking information,” contingent fees in domestic relations matters, and ownership of an affiliated business entity by a law firm.

Here’s an example of a question that our Ethics Committee is posed to answer.  Take the BBA’s Lawyer Referral Service (LRS), which is designed to match members of the public in need of legal services with qualified lawyers to handle their cases.  Members of the public contact the LRS, describe their legal issue, and receive a referral to a suitable lawyer in the relevant area of law.  In some instances when a referral is made, the prospective client does not contact the referred lawyer.  MRPC 7.3(d) bans in-person solicitation by a lawyer of a prospective client.  If the referred lawyer calls the prospective client to find out if he or she still wishes to consult, is that a violation of the Rule?  In this instance, the BBA’s Ethics Committee provided a formal opinion that obtaining the prospective client’s consent during initial intake sufficiently satisfies the requirements of the Rule.

Here’s another example of a question that our Ethics Committee answered.  The BBA’s Bankruptcy Law Section and the Volunteer Lawyers Project sponsored a pro bono initiative carefully designed to help an individual contemplating bankruptcy determine whether his or her circumstances warrant filing for Chapter 7 bankruptcy.  The program was developed to increase participation among larger law firms as a pro bono initiative and was designed to screen out any conflicts.  There was an ethics question because many of the volunteer lawyers practice at major law firms, which represent financial institutions and other businesses. In any given case, it is quite likely that the volunteer lawyer’s firm will already represent, in one or more unrelated matters, a business that is a creditor of the pro bono client.

The attorney would meet with the individual, review the situation, counsel the individual regarding filing for bankruptcy, where appropriate assist in preparing a Chapter 7 petition, and may also accompany the individual to the meeting. The lawyer’s role ends there.

The Ethics Committee concluded that certain creditors have meaningful debts and therefore a conflict check would be run in that situation. If there is a conflict, the individual would be referred to another attorney in the program. Under the pro bono program, where special circumstances have been screened out, the limited role of the attorney was not seen as giving rise to a conflict of interest.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association

As We’ve Been Saying, Corrections Reform Is Long Overdue

Could it be that Massachusetts is making the move from “tough on crime” to “smart on crime”?  Not quite yet, according to a recent report “Crime, Cost, and Consequences: Is It Time to Get Smart on Crime” published by Community Resources for Justice (CRJ) and MassInc.  We were pleased to read this 40 page report, produced by two institutions well-regarded for their public policy work. That’s because the report reinforces what the BBA and the organization now know as CRJ discovered during the course of a study in 1991 — that Massachusetts’ criminal justice policies are unduly harsh and fail to improve public safety.

Punishment cannot be the primary emphasis or the only response to crime.  We need to revisit our criminal justice policies, focus on a holistic approach to punishment and take a comprehensive look at the entire criminal justice system in Massachusetts.

A few of the takeaways from the recently released report. . .

  • Over the next decade our correction policies and practices will cost the state $2 billion if nothing changes.
  • Massachusetts spends six percent more on incarceration than on education, and low level drug offenders sentenced under mandatory minimums are responsible for a substantial portion of that cost.
  • If Massachusetts could reduce recidivism by five percent, it would save the state $150 million annually.

A few of the report’s common sense recommendations. . .

  • Place a moratorium on state and county prison expansion;
  • Empower the Sentencing Commission to revisit the state’s approach to sentencing and sanctions; and
  • Expand the use of community supervision and pre-release.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association