Monthly Archives: October 2015

Raising and Revising the Bar

MW at Council2

We were pleased to have Marilyn Wellington speak to our Council last week about her role as Executive Director of the Board of Bar Examiners (BBE) and how her agency is changing.  The BBE is tasked with being a gatekeeper for admission to the bar in Massachusetts.  As Wellington explained, this is largely a public protection function – to assure that anyone licensed to practice law in Massachusetts meets our high standards for competency and character and fitness.  To achieve these ends for the roughly 2,500-3,000 applicants each year, the BBE administers the bar examination, considers each applicant’s character and fitness, and also reviews the qualifications of several hundred lawyers trying to waive-in from other states.

The BBE Board consists of five members who oversee their policies and processes and also draft the essay questions used in the bar examination.  Board members are geographically diverse and serve five-year volunteer terms.  They are all experienced lawyers with decades of practice in Massachusetts, devoting a significant amount of time to maintain the high caliber of lawyers permitted to practice in the Commonwealth.

After explaining the BBE, Wellington went on to discuss an issue that has been occupying the bar’s attention – bar passage rates.  She reported that the passage rate has dipped in Massachusetts, though less dramatically than it has nationally.  Some explanatory charts are below and law-school specific data is available here.  Note that, at the same time, scores on the Multistate Bar Exam continue to be higher for Massachusetts test-takers than the national average. (Click on the image to enlarge)

10 year result table

10 year result chart

mbe

While some have been quick to trace this trend back to a possible decline in the caliber of law school graduates, Wellington was clear that, at most, this cause is one of a multitude of factors.  She explained that another factor may be recent changes in law school curricula.  As firms and clients have pushed for more practice-ready lawyers, law schools have increased practice-style courses and clinics, perhaps at the expense of traditional courses teaching the core principles tested on the bar exam.  This is a fascinating and challenging issue, and one in which the BBA is particularly interested.

The BBA is hoping to do its part to help prepare lawyers for practice and has become increasingly active toward this goal, having recently partnered with all five Boston area law schools, welcoming their students to learn and network at the BBA.  In addition, as you may have heard, BBA President Lisa Arrowood is committed to enhancing lawyer practice readiness and has been the force behind the creation of our Friday Fundamentals programs.  These classes focus on essential skills in core elements of specific practice areas.  They are designed to introduce subject matter to newer attorneys and challenge experienced practitioners who may be looking to review or expand their expertise.

Wellington then spoke on reforms being considered by the BBE.  First, they are considering switching to the Uniform Bar Exam (UBE), with the help of a court appointed committee that includes BBA representative Wayne Kennard, WilmerHale.  The 19 member committee includes representatives from eight Massachusetts law schools, the court, the bar, and the BBE.  They are also looking at a number of programs nationally surrounding bar examination such as the new pro bono requirement in New York and accelerated bar exam programs in place in a number of other states.

The UBE is a two day exam featuring “portable scores,” meaning test takers can bring their scores to other states that use the exam.  It does not test any local law and one portion is a legal skills test, requiring no legal knowledge.  Instead, test takers are given materials and any legal maxims they will need and are tasked with a writing exercise, often a bench memo or memo to a legal partner about the materials.  This style of test is aimed at practice readiness.  An absence of state law testing may make some members of the bar nervous, especially given the focus on state knowledge in many rules (see for example the BBA’s Ethics Committee’s recent comments on proposed changes to the Massachusetts Rules of Professional Conduct Rule 5.5).  At the same time, the memo-style test might be a good way to prepare young lawyers for practice.

Seventeen states currently use the UBE, including New York, a bar considered the gold-standard by many states and foreign practitioners.  One concern is that each state using the UBE sets its own passing score.  This means that a student could fail in one state, but pass in another, resulting in potential “forum shopping” for bar admission.  States also still independently examine all other aspects of the admission process, such as the character and fitness and education requirements.

In sum, we applaud the reasoned approach taken by the BBE.  We are confident that their thorough examination of the bar exam and programs surrounding it will help Massachusetts come to the best outcome – one that will balance legal knowledge, practice readiness, and character and fitness in order to maintain the high quality of practice and commitment to justice we have today.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Repairing the World through Judicial Innovation and Evolution

On Tuesday, Chief Justice Ralph Gants gave his annual State of the Judiciary Address at the MBA’s Bench Bar Symposium in the Great Hall of the John Adams Courthouse.  Attendees such as Speaker of the House Robert DeLeo, Judiciary Committee Co-Chairs Representative John Fernandes and Senator William Brownsberger, Attorney General Maura Healey, Governor’s Chief Legal Counsel Lon Povich, and a host of SJC Justice and Chiefs of the Trial Court departments were there.

Chief Justice Gants began with high-minded principles.  He explained that he sees every court – not just specialty courts — as a problem solver, which he defines as meeting an obligation to repair the world, an obligation met by saving even one life.  No one, he noted, comes before our courts unless they have a problem that cannot otherwise be amicably resolved.  All courts seek to repair the world, one problem at a time – a task that can be accomplished only with the support and assistance of the two other branches of government.

Gants SotJ

The Chief went on discuss two main issues, civil case reforms and justice reinvestment.

Civil Case Reforms

The Courts are intent on changing civil cases, making them more affordable and cost efficient at all levels.  “Slow, expensive litigation,” he said, “is the way of the dinosaur.”  Three changes are coming this winter:

  • A menu of options in Superior Court – parties will soon be able to choose from a number of resolution options. The top option will be the “three course meal” of full discovery and a jury trial.  However, there will be a sliding scale of other options, available only upon the agreement of all parties, which will attempt to bring cases to resolution with greater speed and less expense.  We expect to have an opportunity to circulate these proposals for comment within the BBA before they take effect.
  • More efficient cases – judges will monitor cases more closely to assure that they stay on track. In addition, the SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure will be revising Rule 26 of the Rules of Civil Procedure.  Using the recently revised federal rule on discovery as a model, the Committee will tweak our state rule to encourage discovery proportional to case costs.  We look forward to being part of the review and comment process on Rule 26 as well.
  • Increased number of dedicated civil sessions – the District Court and Boston Municipal Court will, at least partly in response to our comments, introduce more sessions dedicated to civil cases, so that these will no longer be the third priority behind criminal and domestic abuse cases. They will also delay implementing the proposed increase in the procedural amount at these courts until these new sessions are running well and demonstrating that they can more efficiently handle civil cases.

Justice Reinvestment

The Chief Justice shared a number of ways the courts are working to improve criminal practice, with a focus on decreasing recidivism, helping individuals become productive members of society, and using the state’s criminal-justice budget more wisely to help achieve these twin goals.

  • Trial Court departments with criminal jurisdiction have been studying best practices in sentencing and hope to use this information to improve sentencing practices starting this winter. The BBA was represented by Thomas Peisch, Conn Kavanaugh, on the Superior Court Working Group; Daniel Dain, Dain, Torpy, Le Ray, Wiest & Garner PC and Michael Fee, Pierce & Mandell PC on the Land Court Working Group; and Thomas Beauvais and Nigel Long, Liberty Mutual on the BMC Working Group.
  • Chief Justice Gants is committed to following the findings and recommendations of the Council of State Governments, which he, along with the Governor, Speaker, and Senate President, invited to examine the Massachusetts criminal justice system. He cited a fact that the Council had already found – in 2012, 46% of those released from state prison in the Commonwealth went back to the street without either parole or probation supervision.  This is one of the highest unsupervised release rates in the country and may have the effect of increasing recidivism rates.
  • The Chief offered a number of ideas on justice reinvestment such as increasing the availability of good time credits, promoting step-down and re-entry programs, and removing mandatory minimum sentences, or at least their prohibition on the aforementioned programs. He also expressed the belief that the Commonwealth may benefit from decreasing sentence lengths and enhancing post-incarceration supervision.  Even though the Commonwealth’s incarceration rate is amongst the lowest in the country, it still does not compare favorably to history (the incarceration rate now is three times higher than it was in 1980 despite the fact that the rates of violent crime are now 22% lower and property crime are now 57% lower), or the world (if Massachusetts were a separate nation, it would have the eighth highest incarceration rate).
  • We need to reconsider all of the fees we are imposing on criminal defendants. We are charging them each hundreds, and sometimes thousands of dollars – fees that amount to more than $30 million per year, when many of these individuals have little or nothing to spare.  In addition, the task of collecting these fees has fallen to probation officers, which distracts them from their far more important function of helping probationers succeed in re-entering society.

Chief Justice Gants ended his speech with some notes on access to justice and jury voir dire.  On the former issue, he touted the recent opening of four Court Service Centers and the adoption and beginning implementation of a language access plan to help non-English speakers understand court processes, forms, and procedure.  The Courts are constantly exploring ways to assure that everyone can meaningfully access their services.

Finally, he talked about how the SJC responded to the bar with the adoption of attorney voir dire.  We were pleased to be involved in this process, as current BBA Vice-President Mark Smith, Laredo & Smith, LLP, served on the SJC Committee on this issue.  Over the past year, the Court issued a standing order governing lawyer participation in voir dire and designed a pilot project on panel voir dire, which is in use by 15 Superior Court judges.  They also recruited 30 Superior Court judges to study attorney-conducted voir dire.  The Courts have trained judges and gathered data on the impact of the new measures.  In all, the Courts continue to develop, grow, and adapt to this new aspect of practice.

As always, Chief Justice Gants clearly has his finger on the pulse of the judiciary.  We are excited to learn of the changes that are coming and to reflect on the strides the Courts have made in the last year.  We look forward to working with the judiciary to bring the Chief’s visions to reality, as the Courts innovate and thrive.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Massachusetts leads, SCOTUS follows? Retroactivity in Juvenile Life Sentencing

Earlier this week, the US Supreme Court heard oral argument in the case of Montgomery v. Louisiana.  The transcript is available here.  The case addresses, along with jurisdictional concerns, whether the Supreme Court’s 2012 ruling in Miller v. Alabama has retroactive effect.  In criminal cases, the Supreme Court’s rulings generally do not have retroactive effect unless the new rule is considered “substantive.”  Miller declared mandatory life sentences without the possibility of parole for homicides committed by minors to be in violation of the 8th Amendment prohibition on cruel and unusual punishment, and required judges in such cases to consider the defendant’s youth, background, and capacity for rehabilitation, as well as the nature of the crime, before handing down a sentence without parole.  Miller followed Graham v. Florida (2010) which prohibited life sentences without the possibility of parole for non-homicide offenses.

Montgomery brings to SCOTUS the case of Henry Montgomery, a 69 year old who has been in prison since he was 17 years old for murdering a sheriff’s deputy in Baton Rouge.  He argued in state court that the Miller holding must be applied retroactively, thereby making him eligible for parole.  The case rose to the Louisiana Supreme Court, which held against Montgomery.  The US Supreme Court granted certiorari in late March of this year.  Louisiana argued in part that the Miller holding was not substantive enough to have retroactive effect, because life without parole sentences are still available for juveniles in homicide cases as long as they are not mandatory.

Should the Court find for Montgomery, about 1,500 prisoners convicted of homicide as juveniles and given mandatory life sentences without the possibility of parole would suddenly gain parole eligibility.  While the Supreme Court is considering the case, analysts suggest that they may still skirt the question of Miller’s retroactive effect, waiting until a prisoner files suit under a federal habeas corpus statute rather than in state court.

Massachusetts dealt with this issue over the last couple of years.  In response to Miller, the SJC held in late December 2014 in Diatchenko v. District Attorney that all life without parole sentences for juveniles were unconstitutional in Massachusetts, even if imposed by a judge at her discretion. This decision came only weeks after the BBA approved principles opposing these sentences.  In Diatchenko, the justices considered – as had the Miller court — current scientific research showing that adolescent brains are not yet fully developed structurally or functionally before the age of 18.  But they reasoned that the proper conclusion is that a judge cannot possibly ascertain with any reasonable degree of certainty that a juvenile is irretrievably depraved and deserving of the life without parole punishment.

The plaintiff, Gregory Diatchenko, who had been serving a life without parole sentence for a murder he committed in 1981 at age 17, became immediately eligible for parole.  In addition, the Diatchenko holding also applied retroactively to other juvenile life without parole convicts who had served at least 15 years, making roughly 65 inmates suddenly parole eligible for the first time.  “Eligibility for parole” merely entitles an inmate to a hearing.  At that point it is up to the parole board to consider whether the prisoner has changed, has taken full responsibility for his or her actions, and poses no threat to public safety.  However, the ruling did eventually result in the release of at least a few individuals in Massachusetts who had been serving these sentences.

Diatchenko also invited the Legislature to revise its juvenile-murder sentencing scheme to come into line with the ruling which stated that juvenile offenders must receive a “meaningful opportunity” for parole, without defining the appropriate length of the mandatory portion of a sentence before eligibility.  As we described, after a contentious hearing in May 2014, lawmakers agreed on a compromise bill, H4307, that would permit parole eligibility after 25-30 years for juveniles convicted of premeditated murder and after 30 years for juveniles found guilty of murder with extreme atrocity or cruelty.  Juveniles convicted of felony murder would be parole eligible after 20 to 30 years.  The bill was enacted in July 2014.

We are proud that the Massachusetts Judiciary and Legislature successfully addressed the retroactivity issue in the wake of Miller, and we hope that the U.S. Supreme Court will use Montgomery as an opportunity to set the record straight for the individuals in other states who are serving sentences under a sentencing scheme now recognized as unconstitutionally cruel and unusual punishment.  A decision is expected by late spring, and we will keep you posted on the latest developments with this case.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V.  On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian.  G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Protects Individual Rights, Opposes Conversion Therapy

We are proud to announce here that the BBA Council recently voted unanimously to support H.97: An Act relative to abusive practices to change sexual orientation and gender identity in minors.  Read our press release here.  This is only the latest step in the BBA’s long history of advocacy to assure equality and individual rights, including supporting the 1989 “Gay Rights Bill” and working with the Massachusetts Transgender Political Coalition on the Transgender Equal Rights Bill which was enacted in 2012.  We are also proud of our longstanding relationship with the LGBTQ Bar Association, which has enjoyed affinity bar status at the BBA for over 20 years.

What is Conversion/Reparative Therapy?

Also called ex-gay therapy or sexual orientation change efforts, these are all various “treatments” that purport to change sexual orientation and gender identity based on the scientifically discredited premise that being LGBTQ is a psychological defect or disorder.  The techniques associated with conversion therapy are often violent (e.g., electric shocks, induced nausea or vomiting) and psychologically damaging.  Furthermore, the American Psychological Association (APA) has long held that gender identity and sexual orientation are at the core of who we are as individuals; they are not mental disorders. Treating them as such runs against best practices in medicine. In fact, a 2007 APA task force report found not only clear evidence that conversion therapy does not work, but also some significant evidence that it is harmful.

As a result, medical and child welfare experts nationally and locally have condemned conversion therapy, declaring it ineffective, physically and mentally damaging, and antithetical to the current scientific understanding of gender identity and sexual orientation.  In spite of this, the practice is currently statutorily illegal only in California, New Jersey, Oregon, and Washington, D.C.  Courts in the Third and Ninth Circuits have upheld these bans.

What are we doing about it?

The bill we support, H.97, bars licensed health care professionals from engaging with minors in therapeutic practices aimed at either changing or “healing” the minor’s sexual orientation, in particular same-sex attraction, or eliminating the minor’s sincerely held conviction that their birth assigned gender is different or inappropriate from their actual gender identity.  The bill also requires state mandatory reporters to report suspected incidences of these practices and makes advertising them  a violation of consumer protection laws.

Health care professionals – including licensed social workers, child psychologists, school social workers, therapists and other state-licensed professionals – are expected to assist their clients, in these instances by helping them learn to accept their individual gender identity and sexual orientation, not to cause further harm or suffering. This bill ensures that medical and psychological treatment for our children will follow the highest ethical standards.

Even though we are not aware of these practices currently going on in Massachusetts, there have been some recent news stories of their occurrence in other states, most notably a recent case in New Jersey, Michael Ferguson v. JONAH, wherein a conversion therapy provider was found guilty of committing consumer fraud in a case involving an adult who underwent such treatment.

The Massachusetts bill is formally supported by at least ten groups with interests ranging from child welfare to health care to human rights, including MassEquality.org, GLAD, and the Children’s League of Massachusetts.  In addition, the American Bar Association recently approved a resolution and report recognizing the right of LGBTQ people to be free from attempts to change their sexual orientation or gender identity and urging all federal and state governments to enact laws prohibiting state-licensed professionals from using conversion therapy on minors.

In July, the Boston City Council unanimously passed a resolution supporting the bill, and shortly thereafter it had a public hearing before the Joint Committee on Children, Families, and Persons with Disabilities.  At this hearing, 19 people testified in support and 8 people testified in opposition.  The opposition was comprised of concerned individuals and out-of-state groups, such as the Family Research Council (anti-gay-marriage and pro-life organization in Washington, D.C.) and the Florida Alliance of Therapy and Choice.  Supporters included the American Counseling Association, National Association of Social Workers, Boston Children’s Hospital, GLBT Caucus, Massachusetts Health Council, Transgender Political Coalition, and the Anti-Defamation League.  Representative Kay Khan, the bill’s sponsor also testified.  Read her testimony here.

The BBA looks forward to advocating for the passage of H.97, which has already been favorably reported out of the Joint Committee on Children, Families, and Persons with Disabilities, and will keep you updated on the bill’s progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association