Monthly Archives: August 2016

BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

  • Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
    • Social Security number
    • Driver’s license number
    • State issued ID card number
    • Passport number
    • Defendant’s parent’s birth name identified as such
  • Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
    • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
    • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Bill Clarifies Zoning Law and Promotes Real Estate Development

On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015, and Section Co-Chairs Hannah Kilson and Matthew Lawlor.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with Chapter 40A) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

We are proud of this latest development and commend the Section for its diligent work on this bill over the last two decades.  We look forward to advocating for more bills backed by your Section in the next legislative session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Defends Attorney-Client Privilege and Access to DNA Testing

At the BBA, we pride ourselves on advancing the highest standards of excellence for the legal profession, facilitating access to justice, and serving the community at large – it’s all right there in our mission statement.   Rarely do we have the opportunity to take part in a single cause that covers all three goals, which is why we jumped at the chance to submit an amicus brief in the case of Commonwealth v. Wade (SJC-11913).

The case is of major importance to the BBA not only because it deals with those core issues – including access to justice and attorney-client privilege – but also because it stems from Chapter 278A, the state’s 2012 post-conviction DNA testing law, which the BBA played a pivotal role in drafting and enacting.  Specifically, it addresses whether a criminal defendant qualifies, under the Massachusetts post-conviction DNA testing law, for DNA testing of evidence from a crime he was convicted of in 1997.

Background – BBA Successfully Advocates for Post-Conviction DNA Testing Law

A brief history:

At issue in the case is interpretation of Chapter 278A, Section 3(b)(5), which permits new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

These prongs are nearly identical to the corresponding recommendation contained in Getting It Right.

The Basis for Wade

The trial judge in the Wade case interpreted Ch. 278A Section 3(b)(5) to require a lawyer to prove all of the prongs, rather than applying the disjunctive reading, as our brief argues and we believe the Legislature intended, that a lawyer must prove only a single prong.  Furthermore, the trial judge interpreted the fourth prong to require the attorney to show the “primary cause” or “actual reason” that DNA testing was not pursued at trial, applying a subjective standard to the “reasonable attorney” test.  Based on this interpretation, the trial judge required the defense attorney to violate attorney-client privilege by testifying on why the now requested DNA testing was not sought at the initial trial.

Our amicus brief, authored by a team from K&L Gates including former BBA Council member Mike Ricciuti, Kathleen Parker, and Patrick McCooe, argues that the fourth prong calls for an objective standard and that the law does not actually require a “primary cause” finding – the test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney would have sought the requested analysis.  Thus, the judge erred in violating attorney-client privilege, and, in doing so, frustrated the purpose of the law in a way that could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

Oral Argument

The SJC heard oral argument on January 11 (watch the video here).  The Justices pushed both sides to explain where to draw the line on protecting attorney-client privilege.  Counsel for the defendant argued, much like our brief, that an attorney should never have to violate the privilege to testify, because the law’s standard is objective, asking only what a reasonably effective attorney would do, and not whether the attorney in a particular case was or was not reasonably effective.  In her words, “the piercing of the attorney-client privilege was extreme judicial overreaching. It was excessive.”  While she conceded that it would be appropriate for the court to ask the lawyer about his or her decision making, the “attorney-client privilege should be sacrosanct.”

Counsel for the Commonwealth took the opposite view, arguing in line with the Superior Court judge that the correct reading of the statute requires defense counsel to name the “primary cause” why testing was not pursued and that a judge would be justified in requiring them to speak on the issue regardless of privilege.  Furthermore, the Commonwealth “can always” call counsel to testify as to their reasoning in not getting then-available testing, even if the defendant is not claiming that the a reasonably effective trial attorney would have sought testing (see clause (iv) above).

The Decision

On July 29, the SJC issued its 6-0 decision (Chief Justice Gants was not present).  We were extremely pleased to find that it held in line with the arguments of our brief, that it was an abuse of discretion for the trial judge to deny Wade’s motion for DNA testing based on his misinterpretation of the statute requiring the attorney to demonstrate the “primary reason” why he did not seek the requested analysis.

The decision makes clear that the statute statue’s plain language means each of the five prongs in the statute “provides a moving party with alternate pathways to establish that he or she is entitled to the requested [DNA] analysis . . . . Indeed it would be nonsensical to attribute a conjunctive meaning to the word “or” as used in this section… ” (p. 12-13).  On the trial judge’s requirement of finding the “primary reason” or “actual reason” why DNA testing was not pursued at trial, the Supreme Court decision explains that this language does not appear in the act, and there is no other language indicating such a requirement (p.15).  Instead, the statute’s “reasonably effective attorney” test “is an objective one” (p. 16).  Thus, the trial judge erred when finding that attorney-client privilege had been waived, forcing trial counsel to reveal privileged communications, and denying Wade’s motion to strike those answers.  The “reasonably effective attorney” test “does not require testimony or an affidavit from trial counsel” (p.20).

The court reversed the motions denying scientific testing and the motion to strike the protected attorney-client privileged testimony and remanded the case to the Superior Court for an order permitting the requested DNA testing.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Final FY17 Budget Update

On July 31, the legislative session came to a close, complete with a few overrides, by way of a two-thirds vote in each branch, of Governor Charlie Baker’s line-item vetoes to the budget that legislators had sent him (H4450).

In signing the budget on July 8, amid news that the Commonwealth could be facing as much as a nearly $1 billion budget deficit, the Governor exercised his authority to target many legislative appropriations for cuts amounting to $256 million.  The below numbers reflect the final state for the FY17 budget, after the Legislature reversed a number of those cuts, one by one, in the final days of session.

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000
  • FY17 Final: $18,000,000

We are thrilled that the FY17 budget included an extra $1 million over last year’s figure in funding for legal services—a top BBA priority—and grateful to the Governor for not only sparing the MLAC line-item from his veto pen but also highlighting this increase in his budget message.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from both legislators and the Governor to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055
  • FY17 Final: $638,940,097

It is unfortunate that this final number was not higher, but we nevertheless greatly appreciate that the Legislature showed its strong support for the judicial branch by overriding the Governor’s vetoes on eight of sixteen Trial Court line-items, restoring roughly $6 million of the $6.8 million in cuts.  Failure to do so would have placed the courts in an alarming position, so we are grateful to legislators for making this a priority during the end-of-session crush of business and despite tough fiscal constraints.  We also note that the Legislature overrode vetoes for two of the four line-items funding the Supreme Judicial Court, restoring over $100,000 in funding for the Commonwealth’s highest court.

The next few years will be very important for court funding in order for the courts to continue to provide the highest level of justice for the people of Massachusetts.  Continued underfunding of the courts would exacerbate a number of challenges, from aggravating long-standing infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0
  • FY17 Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not include it.  So we will back making the case for Housing Court expansion in the new session, starting next January.  We look forward to the FY18 budget process and, as always, urge you to help us make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

We Want Your Feedback: Online Access to Court Records Rules and Experiences

As you have likely heard by now, the SJC approved and released Trial Court Rule XIV regarding online access to court records.  This follows the well-documented  recent challenges (see: Courts Cut Online Access to Criminal Cases, Trial Court Fails Transparency Test in Attorney Portal Lockdown, To Block Data Harvesting, Trial Courts Lock Down Attorney Web Portal) faced by the the Trial Court after they detected instances of unauthorized “data harvesting.”  The BBA has long been a part of this discussion, including, most recently, through the submission of comments from a working group and various practice-area Sections to the Trial Court’s Public Access to Court Records Committee regarding forthcoming rules on this issue.

We are pleased to report that the Trial Court has been responsive to the concerns expressed in the articles linked-to above and to our comments, and note their open communication regarding the process as exemplified by a recent letter to bar leaders.

Some of the major points raised by our comments are included in the final rule, including:

  • The Committee’s recommendation to create a Standing Committee to regularly review the rules in light of recent developments and changes in technology and the addition of language to Rule 5(a)(1)(ii) specifically aimed at these sorts of updates, speaks directly to the second consensus point of the BBA’s Working Group (BBA Comments page 1) recommending periodic review of the database and technology.
  • Editing Rule 1(d) to note that all courts will maintain a public computer kiosk at the Clerk’s office is responsive to our note on inconsistencies in the proposed rules on this point (see BBA Comments p. 12).
  • Revising Rule 2(j)(1) to remove the outright ban on flash photography as recommended on page 8 of the BBA’s Comments given the prevalence and convenience of cell-phone scanners which may require a small an unobtrusive flash.
  • Adding certain case records to the list of protected documents that cannot be available online, including mental health reports and certain civil commitment and harassment and domestic abuse records (see BBA Comments p. 11).
  • Updating Rule 6 to clarify the process for court users to correct clerical errors in electronic dockets using language recommended on page 10 of our Comments.

As we continue this discussion with the courts, your feedback is essential.  Please send us your comments regarding online access to court records.  We hope to share many of them with the courts as we work with them on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association