Monthly Archives: September 2016

Access to Justice Commission Restarts

The start of the BBA’s program year and the new SJC session also coincide with the new seating of the Massachusetts Access to Justice Commission.  Now in its third iteration, the Commission is looking to build on its substantial work.  Last year alone, the Commission accomplished the following (and more!):

  • Legal Services Funding: Supported an increase in appropriations for the Massachusetts Legal Assistance Corporation (MLAC), helping achieve a $1 million increase. The BBA was also instrumental in this push, led by the work of Past-President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, D. Smeallie.  The Commission also explored alternative funding sources, especially from federal grants.
  • Increasing Pro Bono: Supported the state’s participation in a new pro bono website, Mass Legal Answers online, org. The Boston Bar Foundation (BBF) is proud to be helping out with funding and the Association is doing its part to educate the bar about the initiative, which promises lawyers the opportunity to provide “pro bono in your PJs.”  The concept is simple: in brief, individuals with legal questions who meet certain requirements, such as income limits, can create an account and enter their legal questions into an online database.  Licensed lawyers interested in pro bono work can also create an account where they can log in to the question repository and select questions to answer.  Check out the site and volunteer!

The Commission also continued to promote [?] pro bono representation, such as through its Access to Justice Fellows Program, which helps facilitate pro bono work by senior and retired attorneys and by expanding the pilot appellate pro bono program statewide.

  • Improving Access to Justice: Worked on revising forms and rules to promote clarity and accessibility for unrepresented litigants.  The Commission also supported statewide expansion of the Housing Court, a movement  the BBA has advocated for as well, to ensure that the roughly 1/3 of the state not covered by the Housing Court gains access to this valuable resource.  Finally, the Commission supported the work of the 100% access national movement, which calls for the development of state justice systems providing self-representing individuals with 100% access to effective assistance in dealing with essential legal problems.
  • Exploring Expanded Roles for Non-Lawyers: Two subcommittees explored the roles for social services providers and non-lawyers generally in the justice system.

Last week, we were privileged to get a preview of the upcoming year for the Commission from Co-Chair and SJC Justice Geraldine Hines, who listed statewide Housing Court expansion, 100% access to justice, continued pro bono efforts, and implementation of Mass Legal Answers Online as some of the major initiatives for the 2016-17 Commission.  She explained that she felt the Commission’s biggest challenges were in establishing a pilot program for non-lawyer advocates in court and in working with the courts to balance convenience with privacy protection with the release of the uniform rule regarding online access to court records, an issue with which the BBA has been very involved.

The Non-Lawyer Roles Committee is working to find the best way to have non-lawyers appear in court on behalf of indigent clients.  Justice Hines explained that some of their concerns include who should train and supervise the service providers, whether they need to be licensed in some way, and how to address rules that limit legal practice to those who passed the bar.  They also need to consider how to protect the public from malpractice and whether non-lawyer practitioners could have greater impact in certain courts where it could be especially unlikely or difficult for someone to otherwise secure representation.

On September 22, the Commission held its first meeting of the new program year. We were pleased to hear updates on MLAC’s application for a grant from the Massachusetts Office for Victims Assistance (MOVA) under the Victims of Crime Act (VOCA), and that the goal of 100% access was likely to be included in the Trial Court’s forthcoming Strategic Plan 2.0 for formalized consideration and implementation by the courts.  We were excited to see a presentation by Rochelle Hahn of the Massachusetts Law Reform Institute (MLRI) on Mass Legal Answers Online, demonstrating its operation and functionality for both lawyers and advice-seekers.  It promises to be an easy and efficient way to match those in need of advice with those who can provide it, requiring minimal effort from either side.  In addition, the ABA is providing malpractice insurance for participants.

Finally, Executive Director of the Massachusetts Board of Bar Examiners, Marilyn Wellington, presented on the implementation of an access to justice question on the Massachusetts bar exam and the 2018 transition to the uniform bar exam.  Massachusetts became the first state in the country to add access to justice to its bar exam when the SJC approved a rule to require a question on the topic in 2014, and the July 2016 exam was the first to incorporate it.  As Wellington explained, the rule requires that at least one essay question be on the topic of access to justice, and it can also be incorporated into other questions.

While the results are not due out until mid-October, the question is already having an impact as Wellington reported anecdotally that she has heard from local law schools that they have added classes or course components on access to justice as a means to preparing their students for this element of the exam and educating them on these important issues.

However, the Massachusetts bar exam will soon undergo changes as the Board of Bar Examiners recently announced that it will be adopting the Uniform Bar Examination (UBE), effective in 2018.  The UBE tests only generally accepted legal principles—not state-specific law.  Massachusetts is the 25th state to adopt it, and its hallmarks include a greater focus on practice-readiness and the ability for test-takers to apply for admission in any of the states in which it is used, giving them more flexibility.  While the UBE does not currently include an access to justice question, Commissioners discussed the possibility of reaching out to the test makers about the possibility of adding the topic in the future.  In the meantime, Wellington announced that Massachusetts is looking into requiring a pre-admission online course on state law and including access to justice issues.

All this and it’s still only September!  We can’t wait to see how these items develop over the year and look forward to keeping you in the loop on all of the Commission’s work over the course of the year.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Fumble? Deflategate and the Law

As we enter week three of the NFL season with the Patriots a pristine 2-0 thanks to the promising work of Jimmy Garoppolo and Jacoby Brissett, it is important to remember what brought us here: the (in)famous Deflategate controversy.  We here at the BBA have decided that now is the optimal time for us to cover the legal issues at stake in the case.

For those of you who have been living under a football-shaped rock for the last 18 months, Deflategate is the controversy over Tom Brady and the New England Patriots using under-inflated footballs.  It all started on January 18, 2015, in the AFC Championship game between the Patriots and Indianapolis Colts.  About six minutes into the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass from Tom Brady and carried the ball to the sideline.  He noticed that the ball felt softer than usual and inquired about the level of inflation.

This led to an investigation by the league, the results of which were released on May 6, 2015, concluding that the ball at issue, as well as all of the other Patriots’ balls in use at that game, did not meet league inflation specifications of 12.5 to 13.5 pounds per square inch (psi).  Investigators found it “more probable than not” that two Patriots equipment employees deliberately broke league rules by using a needle to deflate the balls and that Tom Brady was “at least generally aware” of their actions.  The report went on to state that the equipment personnel would not “personally and unilaterally engage in such conduct in the absence of Brady’s awareness and consent.”

On May 11, 2015, the NFL announced that it would suspend Tom Brady four games and penalize the Patriots organization by eliminating a future first- and fourth-round draft pick and issuing a $1 million fine for “violations of the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules.”  A few days later, Brady and the NFL Players Association (NFLPA) filed a joint appeal of his suspension and shortly thereafter NFL Commissioner Roger Goodell announced that he would hear the appeal himself.

In late July, Goodell upheld the four-game suspension, prompting successful appeals, first by Brady and the NFLPA to the U.S. District Court, and then by the NFL to the Second Circuit Court of Appeals.  To make sense of the situation, we brought in the experts to a program at the BBA earlier this week, discussing the arbitral law behind these decisions.  Led by moderator Lou Mandarini, Segal Roitman, LLP, presenters Joseph E. Santucci Jr., Schwartz Hannum PC, arbitrator Elizabeth Neumeier, and Jasper Groner, Segal Roitman, LLP, had a spirited discussion on the law in this area and its application to what has become one of the most (in)famous cases in New England.

The one clear takeaway from our distinguished panel was that the law in this area is unique and courts are reluctant to intervene or overturn arbitrators’ decisions.  Modern labor-arbitration law was founded in the 1960s with the so-called Steelworkers Trilogy, a series of Supreme Court cases establishing that disputes between unions and employers should, if at all possible, be handled through arbitration, and that arbitrators’ decisions should be subject to great deference.  The cases lay out precedent that Courts will not overturn arbitrators’ decisions even if they disagree with the decision or contract interpretation.  This deference also extends to professional sports leagues, demonstrated most notably in 2001 in Major League Baseball Players Association v. Garvey in which the Court stated that “judicial review of a labor-arbitration decision … is very limited.”

And this deference is for good reason in organized labor, where a typical case may pit an hourly wage earner against a large corporation.  With such a great power imbalance, it makes sense for unions to push for deference to arbitrators, since appeals can present prohibitive costs for their members.  As one presenter put it, arbitration is a substitute for courts everywhere, except in labor, where it is a substitute for a strike.  Obviously, most of the parties in arbitrated labor cases do not have anywhere near the spending power of the NFLPA or Tom Brady.

Yet, despite all this supposed deference, the District Court ruled for Brady and the NFLPA, nullifying the four-game suspension.  Judge Richard M. Berman found that Brady did not receive sufficient notice of the severity of the discipline handed down in this case.  While the holding warmed the hearts of Pats fans, our panelists were in agreement that it did not comport with established case law, a trend they say is sometimes seen in District Courts, where judges may not be as well versed in how to handle appeals, especially from arbitrations.  This is not a knock on the District Courts, as our presenters went on to explain: District Court appeals from labor arbitrations are fairly rare, and increasingly so, as private-sector unions have shrunk in proportion to the overall workforce.  The practice in this area is increasingly esoteric and thus it is reasonable to expect judges and clerks to not be up to speed on the case law.

In late April 2016, a three-judge panel of the Second Circuit Court of Appeals ruled 2-1 to reinstate Brady’s four-game suspension, getting it right in the eyes of our presenters.  The Court found that Commissioner Goodell acted within his powers under the collective bargaining agreement and that he did not deprive Brady of fundamental fairness.  The Court defaulted to the proper deferential standards stating,

The basic principle driving both our analysis and our conclusion is well established: a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential — indeed, among the most deferential in the law. Our role is not to determine whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the commissioner should have been for three games or five games or none at all.  Nor is it our role to second-guess the arbitrator’s procedural rulings.

Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.

A subsequent petition for a rehearing in the Second Circuit was denied, and on July 15, Tom Brady announced on Facebook that he had decided to accept the suspension.

So, did it all work out?  While our experts thought so, their discussion led into some Monday morning quarterbacking, pointing out a couple of weak spots in the case.  Though Brady and the NFLPA hired a veritable who’s-who of top lawyers at an estimated cost of around $5 million, commenters noted that they were short on experience dealing specifically with employment arbitration issues.  Furthermore, the NFL’s collective bargaining agreement is extremely detailed, and contains a number of articles explicitly calling for arbitrators, and at times, neutral arbitrators, to handle certain situations, such as injury grievances.  However, the article at issue here (Article 46, Commissioner Discipline) does not actually mention arbitrators or arbitration at all.  Instead, it lays out a process for handling certain disputes and “action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football,” such as occurred here.  The article gives the Commissioner power to appoint one or more hearing officers of his choosing.

So, was this arbitration?  Should it have been subjected to such an extreme level of deference by the courts?  The NFLPA lawyers did not even make an argument along these lines.

They also never argued about the severity of the four-game suspension, which is a common issue in sports suspension arbitrations.  Given the brevity of both the NFL regular season (only 16 games) and the average NFL player’s career (roughly 3-4 years), suspensions can have a major impact on players’ earning power.  A suspension of the length handed down here could be argued to being akin to barring a typical employee from working at their job for two-to-three prime earning years.  While it may not be the most sympathetic argument in Brady’s case, given his wealth and uncommon longevity, this sort of argument has been used effectively in similar cases in the past.

Going forward, it will be interesting to see whether this issue will become a sticking point in the NFL’s next round of collective bargaining in 2021.  Will players be willing to take a stand to decrease the Commissioner’s power in these cases and demand neutral arbitrators?  Will they be willing to take a hit in other aspects, especially economically, to have greater say in these sorts of procedures?  The debate is something to look forward to in a few years, but for now, we’ll focus on October 9, when Tom Brady is scheduled to make his return against the Browns.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Welcome Back SJC

 

The start of our program year coincides with the start of the new session of the Supreme Judicial Court, which runs until May 2017.  The Justices held their first oral argument on September 6, when Chief Justice Ralph Gants welcomed three recently confirmed justices to the bench for the first time – Frank Gaziano, David Lowy, and Kimberly Budd who replace retired Justices Frank Spina, Robert Cordy, and Fernande Duffly.  They join returning justices Barbara Lenk, Margot Botsford, and Geraldine Hines, the latter two of whom face mandatory retirement in 2017.

Here are some cases we’ll be keeping a close eye on this session:

Mandatory Minimum Sentencing

The first case of interest, Commonwealth v. Laltaprasad (SJC-11970), was actually argued last session, but the Court waived its 130-day rule, which requires it to issue a written opinion within 130 days after argument (or submission without argument), and still has not issued its holding.  The case revolves around Superior Court Judge Shannon Frison’s departure from the mandatory minimum sentence for drug crimes of which the defendant was convicted.  On July 23, 2015, the defendant was convicted of possession with intent to distribute heroin, subsequent offense, under G.L. 94C §32(b), and possession with intent to distribute cocaine, subsequent offense, under G.L. 94C, §32A(d).  At sentencing, the Commonwealth recommended 3.5 to 5 years in state prison.  The court departed from the mandatory minimum of 3.5 years in state prison required by G.L. 94C, §32A(d), and G.L. 94C §32(b), and instead imposed a sentence of 2.5 years in the house of correction, explaining in its memorandum of sentence departure:

(1) The defendant does not have a prior conviction for drug trafficking at seriousness levels 7 or 8; and

(2) The facts and circumstances surrounding this matter warrant a lesser sentence.  Specifically, the defendant was arrested with less than 1 gram of the controlled substances.  Further, the defendant was severely injured when the other individual shot a firearm at him.  He suffered 11 gunshot wounds and endured 21 surgeries prior to trial.  Given both the relatively small amount of contraband involved in this arrest and the extreme medical condition of the defendant, the Court will depart downward and impose a sentence of 2.5 years in the House of Correction.

The Commonwealth appealed this decision, arguing that the judge had no discretion to depart from the mandatory minimum sentence because the Legislature has exclusive power to prescribe sentencing penalties, and that separation of powers principles preclude a judge from disregarding the Legislature’s directive.  The Commonwealth also argued that sentencing guidelines recommended pursuant to G.L. c. 211E, which permit a judge to depart from a mandatory minimum sentence, have never been enacted by the Legislature, and thus could not be applied in this case.

In late December, the SJC solicited amicus briefs on “Whether a sentencing judge has discretion to depart from the mandatory minimum terms specified in G. L. c. 94C, § 32 (b), and § 32A (d), under the sentencing guidelines recommended pursuant to G. L. c. 211E or otherwise.”  A large number of organizations submitted amicus briefs making various arguments opposing mandatory minimum sentences, including separation of powers in government, the need for judicial discretion, individualized  and proportional sentencing, and the disparate impact of mandatory minimum drug laws on minority populations.  They also explained that mandatory minimums did not adequately serve the primary purposes of sentencing and argued for safety valves, similar to those in the Federal system and a number of other states, that permit judges to depart from mandatory minimum sentencing schemes under certain circumstances.

Until the decision is issued, it remains unclear why the SJC chose to take this case.  On one hand, it seems clear that the lower-court judge did not follow the law in her sentencing memorandum.  Or did the SJC see here an opportunity to make changes to the current state of mandatory minimum sentencing in the Commonwealth?  From a policy perspective, the BBA has long opposed mandatory minimum sentencing, so we are particularly interested to see if the Court uses this case as a vehicle to move the ball on this issue.

Drug Lab Scandal Solutions

Bridgeman v. District Attorney (SJC-12157) is the latest in the string of cases related to the Annie Dookhan/Hinton Drug Lab scandal, in which convicted chemist Annie Dookhan tainted tens of thousands of drug samples submitted for analysis in criminal cases.  This story broke publicly around 2012, and since then, the Court, CPCS, and the seven District Attorneys (DAs) with affected cases have all struggled with how to handle the voluminous issues that arose.  First, there was the issue of case identification.  Attorney David Meier was assigned the task of gathering information from the drug lab records.  He found that roughly 40,000 samples were affected by Dookhan’s actions.  Over time, that list has been translated into a list of more than 20,000 individuals whose cases remain in limbo.  While the SJC has chipped away at this case slightly, such as through the hard work of a number of retired judges, including BBA Council member, Judge Margaret Hinkle, conducting special drug lab hearings, the remaining numbers are still considerable.

In 2014, the SJC held in Commonwealth v. Scott (SJC-11465) that every person convicted with Annie Dookhan serving as either the primary or secondary chemist was entitled to a presumption of government misconduct tainting their case, meaning that they wouldn’t have to prove that Dookhan acted illicitly in their specific cases.  In their brief for this case, CPCS recommended a “global remedy” to presumptively vacate all convictions of the impacted defendants, with exceptions in a small number of certain cases.

The current case, Bridgeman has been addressed in pieces.  In May 2015, the SJC issued its decision on one issue – whether Dookhan defendants who wanted to withdraw guilty pleas could face additional sanctions.  The Court created an “exposure gap” to prevent chilling of defendants bringing their cases, such that defendants seeking post-conviction relief could not be convicted of more serious offenses or face harsher sentences than previously imposed.  The remaining issue to be addressed in the still pending Bridgeman case (SJC-12157) is whether there has been unconstitutional delay in dealing with the class of cases impacted by the Dookhan scandal, given that this case was filed in 2015, nearly 15 years after the misconduct began, and four years from the public revelation.

We are very interested to see how the Court deals with this case.  Will they adopt a “global solution”?  Or will they opt to handle the more than 20,000 cases on a case-by-case basis?  If the latter, how will the justice system (courts, appointed counsel, DAs, …) handle a potentially unwieldy number of these appeals by Dookhan defendants?  How will impacted defendants be given notice of this outcome and of their rights?  This case seems to carry even greater potential significance given the revelations of evidence issues in the Sonia Farak drug lab scandal and, most recently, the Braintree Police Department.

Bail Considerations

The third case on our radar is Commonwealth v. Wagle (SJ-2016-0334), on whether it is a violation of the state and federal constitutional guarantees of equal protection and due process of law to hold  an impoverished defendant in jail before trial because she cannot afford money bail (see the Petition for Relief here).  The case is the latest in a series of cases (see, e.g. Commonwealth v. Henry) and discussions on costs and fees in the criminal justice system generally.

In this case, a Single Justice (Hines) issued an interim order, decreasing the bail amount and granting leave to her attorneys to file a revised petition in 30 days (by September 24, 2016), making arguments for “systemic relief” for the class of similarly situated individuals.  Justice Hines requested that the amended petition focus “specifically on the terms of the Massachusetts bail statute and how it is being applied by Massachusetts judges, and why the defendant claims that our statute and its application are unconstitutional.”  After reading this petition and a response from the Commonwealth, and permitting both sides to be heard on the question of reservation and reporting, the Single Justice will consider whether this case should go before the full panel of the SJC.

We’ll be keeping a close eye on this case and the discussion of fees in the criminal justice system generally.  It is important to remember that the courts are only one player here, as we are also looking forward to seeing the criminal justice reform proposals in the Legislature emerging as a result of the forthcoming Council of State Governments report.

Those are just three of a number of cases we are watching, and we can’t wait to see what other issues the SJC takes on this session, as well as what impact, if any, the changing personnel on the Court will have.  We look forward to following up with you on these cases of interest and telling you about more throughout this SJC session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2016-17 Program Year Begins!

Welcome to the new program year!  As Section Steering Committee meetings enter full swing, and the BBA again hums with activity, we wanted to take the opportunity to review some of our public-policy procedures while taking a look back on some highlights of our work from last year.

We are always interested in getting involved with matters of public policy to:

  • Increase access to justice
  • Provide fair and efficient administration of justice; and
  • Enhance the quality and practice of the law

While this sometimes entails the BBA taking a formal position in support or opposition of a bill, policy, or rule, more often than not we take a more nuanced stance.  Be it through amicus briefs, comments to the courts, or work on legislation, the BBA strives to represent reasoned positions of legal experts and to offer a unique perspective.  Sometimes that means we present conflicting views together, and we are comfortable with that.

For example, in April, BBA Council approved submission of comments from the Association and a number of Sections to the Trial Court Committee on Public Access to Court Records regarding the Proposed Uniform Rules on Public Access.  We have documented our involvement with this issue a number of times here on the blog.  In brief, we have been involved with this issue for over a year, and called together a special working group to scrutinize the proposed rule over a three month period early this year.  What may have been lost in the shuffle is that our comments reflect the existing oppositional views of the bar.  While practitioners in some areas had specific concerns, the major divide was between those wanting broad online access and those focused more on the privacy concerns that elicits.  We strove to adequately present both views to the courts for their consideration in drafting the rule and were pleased with the results, as the final rules appear to contain a number of amendments based on our suggestions.

In our policy work, one of the biggest consistent challenges we face is timing.  Our policy procedures have at times generated frustration, because it can sometimes take months for us to reach an official position.  We believe, however, that a process allowing us to get input from all our interested Sections, and to register viewpoints that may not initially have been apparent, helps us come to the best outcome.  This is especially important because one of our hallmarks is to stand by our positions, often for decades.  Therefore, we urge you to bring your policy or amicus requests to us with as much time as possible – it makes the process better for everyone.  However, that’s not to say we can’t speed things up when our voice is needed…

In mid-October, when we learned of Recinos v. Escobar, we knew it was a case that aligned with our principles, and that we had something to add to the discussion.  The case was taken up sua sponte by the SJC in expedited fashion to address the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

Since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there was a very small class of young people that would otherwise qualify for SIJ status, but could be barred from doing so since the Probate and Family Court would not make a finding because they were aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but that was not uniform and judges had no guidance on the matter.

We activated our Amicus Committee to promptly review the case and were able to get their affirmative recommendation and approval from BBA Council within a week to add our voice to the amicus brief just in time for the November 4 filing deadline.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argued that the Probate and Family Court had equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argued that the pathway to permanent legal residency for immigrant youths required the state courts to play an essential role and that the Probate and Family Court had equity jurisdiction over these cases.  First, it argued that the Court’s equity jurisdiction was not limited by statute and made the case that the Massachusetts Declaration of Rights supported this sort of equitable remedy.  The brief further argued that children who have been abused, abandoned, or neglected were dependent on the court to make such a finding since they had been mistreated and because such a finding was required to qualify for SIJ status.

On November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court had equity jurisdiction to decide the case – and remanding to that court for further proceedings on an expedited basis, so that the appellant could have time to apply for SIJ status before her 21st birthday.  Four months later, the SJC released its full opinion, making clear that the Probate and Family Court has equity jurisdiction over youths between the ages of 18 and 21 for the purpose of making the necessary SIJ findings.

In addition to signing onto amicus briefs, we sometimes draft our own.  Two such cases that we’re especially proud of from this past year are Fisher v. Univ. of Texas (supporting affirmative action in higher education) and Comm. v. Wade (defending attorney-client privilege and access to post-conviction forensic testing). Of course, this requires even more time and work on our part.  Which brings us to…

Finally, we urge you to be flexible.  Especially when working with the Legislature, we only have so much control over the process and outcome.  We will do our best to streamline things as much as possible, but sometimes this means long waits to testify or last minute changes to legislation.  Or both, as was the case with our zoning reform bill, H3611, An Act relative to non-conforming structures.  We were very pleased when the Governor signed the bill into law on August 5, but that was only the final step in a long history.  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.

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 it) 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.

But we could not have achieved this success without the devoted efforts of last year’s Section Co-Chairs, Hannah Kilson and Matthew Lawlor, along with Council member (and former Section Co-Chair) Michael Fee.  After the Real Estate Section Steering Committee reviewed the bill and decided to refile it around this time in 2014, we waited until mid-May 2015 for a Judiciary Committee hearing, at which Mike Fee testified.  In June 2015, the bill was reported out of the Judiciary Committee and referred to the House Committee on Ways and Means and shortly thereafter reported to the floor of the House, where it passed 151-0 before being delivered to the Senate Committee on Ways and Means.  There, the bill underwent further review and over the course of a number of emails, phone calls, and meetings, BBA staff and Mike Fee heard legislators’ concerns and worked with them to craft amendments in order to win the support of the full Senate for final approval.  On May 5, the bill was debated and amended on the floor of the Senate and ultimately passed unanimously.  From there it was back to the House, which in late July concurred in the Senate amendment, finally being laid before the Governor on July 26, 2016.  Ten days later it was enacted – with a few tweaks and 20-plus years after initial endorsement by the BBA.  It was a long road, but well worth it.

Hopefully this has given you a bit of a window into the work we do and how it happens.  Patience, flexibility, and nuance are all key aspects of successful policy development at the BBA.  With that, welcome back one and all – we hope to be seeing you around the BBA and look forward to working with you on policy issues!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBO Moves to Mandatory Online Registration for Attorneys

We want to give you the inside scoop on a major change being implemented this year that affects all attorneys in the state—that’s right, we’re talking about online registration with the Board of Bar Overseers (BBO).  Over the summer, you should have received an email that looked like this:

 

Mandatory Online Registration for Attorneys Goes Into Effect September 1, 2016

Dear Attorney:

The Board of Bar Overseers (BBO) has announced that all attorneys admitted to practice law in Massachusetts are required to submit their registrations online at massbbo.org effective September 1, 2016. Click here for the notice announcing the new requirement and answers to frequently asked questions regarding online registration. Here are the answers to some key questions that you need to know:

  1. Who is required to register online?
    All attorneys admitted to, or engaging in, the practice of law in this Commonwealth are required to register online, with certain exceptions.
  2. What are the exceptions?
    The requirement doesn’t apply to newly admitted attorneys and attorneys who are registered as “pro bono inactive” and “pro bono retired” statuses. Certain other categories of attorneys are also exempt, including those who are not admitted to practice in Massachusetts, but must register with the BBO. Otherwise, the Board will handle requests to be excused from the requirement on a case-by-case basis.
  3. When do I need to register online?
    You are required to register online if your registration expires onSeptember 1, 2016. If you register in the December, March or June cycles, you will have to register online when you next renew.
  4. What do I do if I have questions?
    Please see attached to read the answers to all of the frequently asked questions about the new requirement or call the Registration Department at (617) 728-8800between 9:00 a.m. and 3:00 p.m. or email at reg@massbbo.org.

“The change makes registration more efficient and cost-effective, and brings the process for attorneys in line with other professional boards that require online registration, including the Board of Registration in Medicine,” said Donna Jalbert Patalano, chair of the BBO and Chief of Professional Integrity & Ethics at the Suffolk County District Attorney’s Office. The Registration Department is ready to help attorneys with the new requirement. We thank you in advance for your compliance with this new initiative.

The information in this email is also available at massbbo.org.

Registration Department
Board of Bar Overseers
99 High Street
Boston, MA 02110
(617) 728-8800
reg@massbbo.org

 

The goal of the BBO is to have all attorneys register on-line.  They recognize, however, that some attorneys will need exemptions.  Attorneys can apply for an exemption by writing to the BBO and must include the following information with the request:

  1. BBO number;
  2. Attorney name (First, Middle Initial, Last, Suffix);
  3. Mailing, business email address and phone number;
  4. A statement under oath demonstrating good cause for the requested exemption;
  5. Documents supporting the request (e.g., from doctor or medical provider, guardian, designated power of attorney, etc.)

During the review of an exemption request, the BBO’s Registration Department will send the requesting attorney a paper registration form for the current cycle.  The BBO will then provide a determination on the exemption, and the requesting attorney will have a year to prepare to register via the required method in the next cycle.

However, we recommend that you make every effort to register online, and for good reason.  Though it may cost you a small extra fee for credit cards (the BBO is using the same payment platform as the City of Boston, which assures the highest level of security but has built-in, unavoidable credit card fees—but no additional fee for an electronic funds transfer), it will save everyone time and money in the long run.  Paper attorney registration is extremely labor intensive, and that comes with a cost.  Over the years, the Board has paid significant overtime and postal costs related paper registrations.  Online registration promises to greatly reduce that expense.  The savings are being passed on to lawyers, as this year the registration fee will again not increase.  That is also why agencies like the Board of Registration in Medicine moved to on-line registration, or OLR, a number of years ago.

For those who are still not convinced, we ask you to review Massachusetts Rules of Professional Conduct (MRPC) Rule 1.1 on competence, which states in relevant part that “competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  Comment 8 to the MRPC explains further that maintaining competence includes “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Thus not only is registering online more convenient and significantly more cost-effective than paper registration, but staying abreast with the technology used for OLR (by having an email address and using a computer) is also part of your ethical obligations as an attorney.  We hope that this shift in registration format goes smoothly and look forward to helping facilitate the continuing exchange of concerns and ideas between the BBO and the bar.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Update: Online Access to Court Records

As many of you know, we have been working on the issue of online access to court records for a while and have been very pleased with the outcomes so far.  On August 10, the SJC released Trial Court Rule XIV, which lays out uniform rules on public access to court records, including a number of recommendations proposed by the BBA through an online access working group and its Criminal Law, Delivery of Legal Services, Immigration, and Family Law Sections, such as:

  • 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 made 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.

The rule was released shortly after the Court faced some well-documented 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), having detected instances of unauthorized “data harvesting.”  While the situation was certainly unfortunate, the Trial Court used it as an opportunity to reaffirm their commitment to an open dialogue, following up with a meeting with bar leaders in mid-August.  As they explained, cutting access without warning was not their ideal solution, but was the best they could do under the circumstances, for fear that giving the public more notice would simply have led to more data harvesting until access was cut.

The meeting, led by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence, included a number of relevant Trial Court staff people working on the online access issue from lawyers who helped draft the uniform rules to programmers working to assure that the online platform balances convenience with privacy in order to comply with the law and uniform rule.  Attending were representatives from the bar, various Trial Court departments, and other state organizations involved in the justice system, such as the Attorney General’s Office, District Attorneys, and Committee for Public Counsel Services.

Chief Justice Carey explained that the Court currently (as of 8/17) has three Portals for access to court records:

  1. Intranet portal – available at a public kiosk in every courthouse. This offers full access to court records but requires one to actually go to the courthouse.  The following case types are available and all cases can be searched by name, docket number, or case type:
BMC25 Civil Case Types
District25 Civil Case Types
Housing6 Civil Case Types
Land8 Civil Case Types
Probate and Family15 Civil Case Types
Superior11 Civil Case Types, 2 Criminal Case Types (Indictment, Criminal Complaint), 1 Bail Petition Case Type

 

  1. Two portals provide remote access to court records through masscourts.org. They offer lesser access than the intranet portal, as detailed below:

a. Public Internet Portal – Civil cases can be searched by name, docket number, or case type, while criminal cases can be searched by docket number or date range, limited to a date range of 30 days or less:

BMCCivil, Small Claims, Summary Process, Supplementary Process
DistrictCivil, Small Claims, Summary Process, Supplementary Process
HousingCivil, Small Claims, Summary Process, Supplementary Process
Land8 Civil Case Types
Probate and FamilyEstates and Administration
Superior11 Civil Case Types, 3 Criminal Case Types (Indictment, Criminal Complaint, Probation Transfer)

 

b. Attorney Internet Portal – does not include a search function. Rather attorneys have access to their own cases after logging in.

BMCCivil, Small Claims, Summary Process, Supplementary Process
DistrictCivil, Small Claims, Summary Process, Supplementary Process, Criminal
HousingCivil, Small Claims, Summary Process, Supplementary Process
Land8 Civil Case Types
Probate and Family14 Civil Case Types
Superior11 Civil Case Types, 3 Criminal Case Types (Indictment, Criminal Complaint, Probation Transfer).  In addition, 12 docket entries are now available as images including judgments, findings, and endorsements on dispositive motions.

 

One of the major discussion topics was figuring out the needs and limitations for other potential portals, including a dedicated government portal to give greater access to certain state offices, such as the District Attorneys and Attorney General, fuller access to criminal cases in order to fulfill their needs as prosecutors, and a self-represented litigant portal to give them the ability to track their cases as an admitted attorney would.  The Court is also working on potentially adding access to a daily calendar listing.

Through it all, the Court stressed that they are very interested in hearing feedback from portal users and that online access is a continuously evolving issue.  (We thank those of you who got in touch with us about how the new set-up has affected you.  We shared these experiences with the Trial Court.)  In fact, some pieces are still not finalized, such as Section 5(b) of the online access rules regarding the attorney portal, which currently has only provisional SJC approval.  The Justices of the SJC asked the Chief Justice of the Trial Court to address any concerns that arise and to make a final recommendation no later than the end of October 2016 on whether changes should be made in this section.

Chief Justice Carey is also soliciting feedback from the Chief Justices of the various court departments who, under Rule 5, may seek the approval of the Chief Justice of the Trial Court to exempt otherwise publicly available case types, or to make additional electronic records or information remotely available on the Public Internet Portal.  Their proposals will be in the form of standing orders that will be subject to public comment.  The BBA looks forward to being part of this process and in the conversation on this issue generally.  As always, we will do our best to keep you up to date on the latest developments and our work on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association