I write with mixed emotions to let you know that I will be leaving the Boston Bar Association, effective January 6 after accepting a job as Senior Policy Analyst for Iron Mountain. I am excited to be taking on new challenges there as part of Iron Mountain’s new in-house government affairs team, but also sad to be leaving my position of Legislation and Public Policy Manager after 3.5 years.
I want to thank all of the members, the staff and leadership of the BBA, and all of the groups and organizations with whom we work closely. I have had amazing opportunities to work on so many fascinating, intellectually stimulating, and important issues and initiatives in my time here, such as our nationally recognized civil legal aid task force report, amicus briefs that made winning arguments before the US Supreme Court and Massachusetts Supreme Judicial Court, and countless comments to the courts and others on rules impacting day-to-day legal practice.
While all of that has been interesting and both personally and professionally rewarding, its value does not come anywhere close to all of the great relationships I have made. I am amazed on a daily basis by our members who so willingly give freely of their time and legal expertise for the greater good. The work ethic, talent, and generosity of everyone involved in BBA is truly inspiring and is definitely what I will miss most.
Over the coming months, I am sure the BBA will hire a great replacement who will take the Association’s government affairs function to new heights. In the meantime, your go-to for all things GR is Director of Government Relations and Public Affairs, Michael Avitzur (email@example.com, 617-778-1942).
All the best,
Boston Bar Association
Legislation and Public Policy Manager
As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations. If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.
So what was on our minds in GR? By the numbers, amicus cases ruled the day. Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:
Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
Criminal Justice Reform: 9 posts
Rules Changes and BBA Comments thereon: 7 posts
A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
Civil Legal Aid: 5 posts
The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.
So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee. Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.
March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s). It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment. This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.
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.
October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light. If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution. The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice. Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually. Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.
If you’re interested in reading more about our Amicus Committee, I recommend the following posts as well:
Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.
February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals. The bill (final number H4313) ended session tied up in the House Committee on Ways and Means. We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty. Our position is, and always has been, based on principled analysis:
The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.
If you’re interested in more posts on our criminal justice activism I recommend:
Welcome Back SJC – examining SJC cases on mandatory minimum sentencing, bail reform, and the Dookhan scandal
Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!
Happy New Year!
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid! As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services. These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence. As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.
Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid. In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.
Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice. We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.
We are excited for this year’s civil legal aid funding campaign, kicking off very soon. Things are already gearing up, as Tompros explained to our Council. MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times. EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.
As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested). In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state. And this is only part of the picture as they gave more limited advice, information, and trainings to countless others. More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state. It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.
We hope you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House. There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders. Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding. Don’t know your elected representatives? That’s perfectly fine – look them up here and make the introduction. They’ll be glad to hear from you.
Andrew Cohn Speaking on Legal Aid
Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations. It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.
On his final point, Cohn talked at length about a new initiative we’ve discussed here before – MassLegalAnswers Online – an internet-based virtual help-line. The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states. The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.” The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally. Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites. The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations. The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.
The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level. Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest. They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering. Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours. The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.
This site has essentially replaced the old “hotline” model and is a great improvement. It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out. The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups. The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users. Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.
At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions. We encourage our readers to check it out and sign-up!
We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Just a brief announcement – the BBA Government Relations Department is now on Twitter – follow both BBA Government Relations Director Mike Avitzur (@MikeAvitzurBBA) and me, BBA Legislation and Public Policy Manager Jonny Schreiber (@JonnyS_BBA), for live-time updates on issues of interest and all the important policy work of the Boston Bar Association!
As you likely know, the BBA has long opposed the death penalty, for more than 40 years to be exact. Our reasoning is based on sound and practical principles – that the death penalty simply too fraught with peril, too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system. We recently reaffirmed this stance and extended it to the federal death penalty with our 2013 report, The BBA and the Death Penalty and now we are proud to announce the release of the BBA’s first ever podcast, which takes the discussion of this position to the next level. With conviced murderer Gary Lee Sampson currently facing the death penalty at the Moakley Courthouse, the Co-Chairs of the BBA’s Death Penalty Working Group that produced that report, Martin Murphy (Foley Hoag) and retired Superior Court Judge Margaret Hinkle (now at JAMS), discuss their experiences with the death penalty and on the Working Group, and BBA President Carol Starkey shares her thoughts.
We have advocated against the death penalty through public education, such as in the aforementioned report and our 2015 press release urging the Department of Justice to seek a life sentence without parole instead of the death penalty for Boston marathon bomber Dzhokhar Tsarnaev. We have made the same point when the Legislature has considered reinstating the death penalty and in amicus briefs including:
1975 –Commonwealth v. O’Neal – Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The Court rejected the state’s unconstitutional mandatory death-penalty provision.
1984 –Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:
Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions. It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.
The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence. In addition, prosecutors and defense counsel alike face unique community pressures.
Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.
2005 –S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).
The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury. It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence. Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty. It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.
The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.
Despite a general trend away from capital punishment recently, in the last few days, the death penalty has again made headlines. Georgia executed its U.S. leading ninth inmate of the year. The Georgia case described in the article suffers from some of the hallmarks we’ve highlighted in our opposition. For example, the crime took place in March 1990, but the defendant was not sentenced to death until his second trial eleven years later. Even more concerning, the case raises major due process issues:
[Defendant William Sallie’s] lawyers argued that he should, once again, be granted a new trial because a woman who ultimately ended up on the jury during the second trial lied during jury selection and failed to disclose her own history of domestic violence, messy divorces and child custody fights — traumatic events that they said were “bizarrely similar” to Sallie’s case.
But no court ever properly considered the alleged juror bias, his lawyers argued in a recent legal challenge, because the issue wasn’t discovered until more than a decade later, and courts had ruled that Sallie’s petitions raising that evidence were procedurally barred because he missed a filing deadline by eight days at a time when he didn’t have a lawyer.
The defense team also made those arguments in a clemency petition to the Georgia Board of Pardons and Paroles, urging it to act as a “fail safe” against a miscarriage of justice. But the board, the only authority in Georgia with power to commute a death sentence, declined to spare Sallie’s life after a clemency hearing Monday.
Earlier in the week, Florida appealed the state Supreme Court’s interpretation of a US Supreme Court decision finding unconstitutional the state’s system of allowing judges, instead of juries, to find the facts needed for a death sentence. The US Supreme Court held that this gave judges too much power, violating the Sixth Amendment right to trial by jury. From the Miami Herald:
At the time of the January [US Supreme Court] ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”
Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.
The Florida Supreme Court then found the new law unconstitutional, because it did not require unanimity in imposing the death penalty (something Judge Hinkle experienced firsthand in a Florida death penalty case and discusses in the podcast). The state’s attorney general is appealing the ruling to the US Supreme Court for discretionary review.
As always, we’ll be on the lookout for latest developments in capital punishment and continue our advocacy in opposition. We hope you enjoy the podcast and we’ll keep you posted on the forthcoming second episode which will cover our role in a major state scandal…
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
With applications for the bar exam due on December 9 and the recent kickoff of our Bar Exam Coaching program, we’ve got the bar exam on our minds. This coincides with a presentation by Board of Bar Examiners (BBE) Executive Director Marilyn Wellington to the BBA Council in November, shortly after the release of passage rates for the July 2016 exam.
While bar passage rates have dropped nationally for the last few years, Wellington believes that they are starting to level out. Much of the drop was due to a 30-40 percent decrease in applications to law school, resulting in many schools expanding their applicant pools to previously unseen levels in order to keep class sizes steady. Over the last few years, most schools have corrected for the application drop by decreasing their class sizes, leading Wellington to predict a corresponding correction in passage rates.
Graduates of our local law schools represent roughly 60% of Massachusetts bar exam takers. Wellington described increasing efforts at these and other schools to prepare students for the bar exam. Some provide bar preparatory courses for credit and/or tuition payment plans for third-party bar preparation courses.
In July, the overall Massachusetts bar exam passage rate was just under 71%. For first time takers it was just under 80%, which is pretty strong, though still seven to eight percentage points lower than the passage rates of a decade ago. The state continues to be slightly ahead of the national mean on the multiple choice portion of the exam. However, the number of bar takers continues to decrease, and in July was at its lowest number since 1983. Wellington explained that this is likely due to the impact of the Uniform Bar Exam (UBE).
Massachusetts recently became the 26th state to adopt the UBE, though it will not be implemented in the state until July 2018. The UBE tests only generally accepted legal principles and includes no local law. It is still a two-day exam, consisting of a one-day multiple choice portion and a one-day essay portion. The essay portion differs slightly from the current Massachusetts structure of 10 essay questions. Instead, there are 6 essay questions for half the day and the Multistate Practice Test (MPT) for the other half, consisting of two 90-minute questions where test takers are given a case file containing all the needed information and asked to produce a type of legal document, such as a memo to a partner or a legislator. The goal of the MPT is to:
test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills are applied.
In addition to the UBE, each state adopting it still retains control over any local components they want to add as well as what UBE score they require for passage. These details are still being worked out in Massachusetts, but Wellington explained that they are working on developing a free online course on local law issues rather than an additional local test like some other states require. However, the main benefit of the UBE is how much flexibility it gives takers who can apply their score in any UBE state, giving them the ability to be more mobile and potentially consider more employment options.
This is the type of background information we have equipped our bar exam coaches with, as well as specifics of the exam and what students can expect. While students are expected to prepare for the academic portion of the exam on their own, coaches are there to provide support from the legal community – mental, emotional, and practical preparation – and guidance on:
Effective study techniques
Dealing with anxiety
Our Coaching Program was started in large part due to the efforts of Marilyn Wellington, SJC Justice Margot Botsford, and Probate and Family Court Chief Justice Angela Ordoñez. It is managed at the BBA by our Member Engagement Manager Kristen Scioli White and Public Service Programs Coordinator Cassandra Shavney. I am proud to be helping out with the program, both as a coach and in running a program this week on exam essay writing – The Anatomy of a Bar Exam Essay: Advice for Improving Your Score. I won’t bore you here with the details, but it was well attended and the students and coaches present had a lot of great questions about the essay exam process and substance, that I did my best to answer based on my experiences and observations both taking the bar and tutoring students. If you want more information about the coaching program please reach out to Cassandra (firstname.lastname@example.org).
Thanks to Marilyn Wellington and the great work of the Board of Bar Examiners, and best of luck to all the applicants taking the bar in February 2017 and beyond. We look forward to reporting on your success this spring!
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Advancing diversity and inclusion in the legal profession has long been a core element of the BBA’s mission, and we are proud to be the first metropolitan bar association to support both the ABA’s recent Resolution 113 and a commitment letter from a number of general counsel. Both items, approved by a unanimous vote at our November 15 Council meeting, call for law firms and in-house counsel to work together in order to promote diversity in the legal profession. Our endorsement letter goes a step further: we will assemble a group of Boston leaders to develop next steps for this initiative, both locally and through other metropolitan bar associations nationally.
The ABA passed Resolution 113 at its House of Delegates meeting held August 8-9, 2016. It reads:
RESOLVED, That the American Bar Association urges all providers of legal services,
including law firms and corporations, to expand and create opportunities at all levels of
responsibility for diverse attorneys; and
FURTHER RESOLVED, That the American Bar Association urges clients to assist in the
facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the
legal services they purchase, both currently and in the future, to diverse attorneys; and
FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys” means
attorneys who are included within the ambit of Goal III of the American Bar Association.
It is accompanied by a detailed report explaining the need for the Resolution and the ABA’s role in diversity issues. The report includes a model diversity survey asking for firm demographics in a number of categories including leadership, recent hires, and promotions.
The Resolution was supported by five national affiliated bar associations: The National Affinity Bar Association, The Hispanic National Bar Association, The National Asian Pacific American Bar Association, The National Native American Bar Association, and The National LGBT Bar Association. It was adopted unanimously. Four individuals who worked on it spoke in favor: ABA President Dennis Archer (Dickinson Wright), Alan Bryan (Wal-Mart), Mark Roellig (former BBA Council member, Executive Vice President and General Counsel for MassMutual), and Wendy Shiba (retired corporate attorney). Though others were lined up to voice their support, because there was no opposition, the presiding officer called for an immediate vote.
Shortly thereafter, the Resolution and model survey gained support from a group of general counsel. In early September, the BBA received the general counsel commitment letter, signed by 24 general counsel — including five from Massachusetts companies: Susan Alexander, Biogen; Paul Dacier, EMC; Michael Parini, Vertex Pharmaceuticals; Mark Roellig, MassMutual Financial Group; and Trish Walsh, Voya Financial – and sent to all their colleagues at other Fortune 1000 companies. This letter asks the recipient to support the following:
You agree that you support ABA resolution 113;
You agree that you will ask the firms that provide a significant portion of your legal services to complete the Model Survey (of course you may continue to ask these firms additional questions specific to your business and the actual attorneys that serve you);
You agree that firms you currently do not retain and that are competing to handle a significant matter for your company will complete the Model Survey;
You agree that the information obtained through the Model Survey will be used as a factor in determining what firms to retain or terminate in providing legal service to your company; and
You agree that you will advise Keevin Woods, Director, Commission for Racial and Ethnic Diversity in the Profession at the American Bar Association, email@example.com, and Alan Bryan, Senior Associate General Counsel – Legal Operations and Outside Counsel Management for Wal-Mart Stores, Inc. at firstname.lastname@example.org, that you support the above four principles, such that they can work together to maintain and publish an ongoing list of those of us that have committed to them.
In the last few months, the number of companies endorsing the Resolution has continued to grow. Currently there are more than 50 such supporters:
American Express Company
Booz Allen Hamilton
Capital One Financial
The Clorox Company
Guardian Life Insurance
John Hancock Financial
Lincoln Financial Group
Marsh & McLennan
New York Life Insurance Company
The Principal Financial Group
Securian Financial Group
Varian Medical Systems
The Williams Companies, Inc.
The Resolution and letter were reviewed by all BBA Section Steering Committees, the Executive Committee and Council, and was unanimously supported. Members noted the importance (a) to the profession of being able to gather comprehensive and annual data on diversity and (b) to general counsel of being able to compare firms “apples-to-apples,” both to each other and to aggregated data standards. They also discussed the benefits for firms, such as receiving more detailed feedback from general counsels on their hiring decisions and streamlining the process for diversity reporting.
We look forward to continuing our commitment to diversity through this initiative and to convening a group of Boston leaders for this discussion. We are extremely proud to be leading this push with our law firm and corporate partners in the Boston community and will keep you updated on all the latest developments.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association