Monthly Archives: October 2017

A2J Update: Legal Services Corporation Comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council

Last week, we updated you on the Third Massachusetts Access to Justice Commission and its year ahead. This week, we are continuing the access to justice theme by offering recaps of two civil legal aid-oriented items: the Legal Services Corporation (LSC) hosted its quarterly board meeting in Cambridge and the Equal Justice Coalition stopped by the BBA Council to preview the upcoming budget campaign and Walk to the Hill in January.

LSC Quarterly Board Meeting

Four times a year, the LSC convenes its Board in cities across the country, and this week, the Board of Directors Quarterly Meeting came to Cambridge. As you may know, the LSC is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million. Here in Massachusetts, we receive approximately $5 million, distributed to four different providers of legal aid. For years, the LSC has been level-funded, while the need for legal services has increased significantly. The LSC found, in its 2017 Justice Gap Report, that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help, and our own Investing in Justice Task Force report found that, here in Massachusetts, approximately two-thirds of qualified individuals must be turned away due to a lack of resources.

Each year, the BBA President and President-Elect head to Washington, D.C., as part of ABA Day, to advocate for LSC funding. This past year, that ask felt especially important as the White House had proposed zeroing out the full LSC line-item. Even as a state that doesn’t rely on LSC funds for the majority of its civil legal aid funding, a $5 million cut to legal services would represent a massive hit to the Commonwealth, especially since it would likely go hand-in-hand with cuts in other services that only drive up the need for legal services. Thankfully, Congress chose to level-fund LSC for the remainder of the year. As the 2018 budget talks begin again, however, the situation remains uncertain. For a crash course on the federal budget process, especially as it relates to legal aid funding, be sure to listen to our Issue Spot podcast, The Federal Budget Process 101.

Forum on Access to Justice

The Forum, consisting of four distinguished panels, highlighted access to justice issues from a range of angles.

First up, a panel entitled “Natural Disasters, Legal Aid, and the Justice System,” convened Moderator Judge Jonathan Lipmann, who was the Chief Judge of New York during Hurricane Sandy, Chief Justice Nathan Hecht of the Supreme Court of Texas, where Hurricane Harvey recently hit, and Chief Justice Jorge Labarga, of the Florida Supreme Court, where Hurricane Irma recently hit. You can view this full panel, along with those mentioned below, on the LSC Facebook Page.

Both Justices spoke of the need for court systems to prepare as much as possible for all types of disasters but also to remain flexible to adapt to each particular situation. They highlighted the legal challenges facing the judiciary in these moments of crisis, some of which can be addressed by administrative orders, like those related to statutes of limitations or speedy trials, while others require legislative fixes or public education, to inform impacted communities of their rights and where they can access legal services if they need them. In relation to education, the Justices also stressed the new role of social media and highlighted the need for courts to ensure their communication plans are updated and adaptive to these types of events. They additionally spoke on the role of legal aid organizations, noting that these providers will bear the brunt of the burden in addressing recovery as these disasters will cause the demand for civil legal services to greatly increase.

Finally, the Justices also mentioned the role that the bar can play in these moments, pointing to the associations as a source of access to attorneys and a centralized point of communication. Texas waived the admission requirements for pro bono attorneys licensed to practice law in a different state but seeking to help victims of Hurricane Harvey. Interestingly, the ABA’s Committee on Disaster Response and Preparedness has established resources, policies, and information for the legal community, including a list of resources for bar associations.

The other panel discussions also addressed significant access to justice issues facing both the country and Massachusetts in particular. For example, “The Importance of Access to Justice to American Business” panel drew General Counsel from a range of companies like GE and Raytheon, including former BBA President Paul Dacier, formerly of EMC Corporation and now of Indigo Agriculture. Last week, we mentioned the Massachusetts Access to Justice Commission’s work on the Justice for All Project, and the Panel entitled “The Justice for All Project: An Overview,” provided a macro look at the goals of this national project and a local take with Chief Justice Ralph Gants offering insights into the Massachusetts-specific undertaking. Finally, deans from seven law schools, including BBA Council member Dean Vincent D. Rougeau, of Boston College Law School, discussed “Law Schools’ Work and Access to Justice,” highlighting what schools can do to foster students who choose law school activities and careers that prioritize increasing access to justice.

Following these enlightening panel discussions, the LSC hosted a Pro Bono Awards Reception, honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations, including Susan Finegan of Mintz Levin, a former BBA Council member and member of our Statewide Task Force to Expand Civil Legal Aid, for her work with Volunteers Lawyers Project of the Boston Bar Association (VLP), Michael Castner for his work with South Coastal Counties Legal Services, Norma Mercedes for her work with Northeast Legal Aid, the law firm Community Legal Aid, and a posthumous award for Terrell “Terry” Iandiorio for his work with VLP.

We were thrilled that President-Elect Jonathan Albano was invited to speak before the awards were presented. These remarks followed an interesting update by Dean Andy Perlman of Suffolk University Law School, who spoke on his work as Chair of the Governing Council of the ABA Center on Innovation. Jon Albano noted that though pro bono would never be enough to fully bridge the justice gap, it was more crucial than ever given the uncertain federal funding forecast and the expanding legal needs of many vulnerable communities. The work of the honorees and others, who devote their time to pro bono efforts, expands the reach of those legal aid organizations that offer civil justice for individuals facing dire circumstances, from eviction, to domestic violence, to deportation, to the loss of necessary health care services and other public benefits. Here at the BBA we have long understood the critical importance of pro bono work in expanding access to justice through our legal system and support that work by training and educating volunteer attorneys who make the commitment to take on those cases.

EJC Addresses BBA Council 

In addition to our work expanding and promoting pro bono work and federal legal aid funding, we also, as you are well aware, advocate for adequate legal funding at the state level. As this advocacy begins for the coming year, the BBA Council was fortunate to be joined by Chair of the Equal Justice Coalition (EJC), Louis Tompros of WilmerHale, and Director of the EJC, Laura Booth. Louis and Laura offered an overview of the current state of funding in the Commonwealth and a preview of the EJC FY19 budget campaign for adequate Massachusetts Legal Assistance Corporation (MLAC) funding. Specifically, they highlighted the need for increased funding for MLAC, given recent federal actions, including expanded immigration enforcement, which will increase demand for civil legal services. They also offered helpful insights into just how one goes about discussing this need for funding with legislators, which was also the theme of a podcast last year, featuring Louis himself.

A key piece of this budget advocacy is the annual Walk to the Hill for Civil Legal Aid when, each January, hundreds of attorneys head to the State House for one of the largest lobby days in the Commonwealth. These attorneys hear speeches from the judiciary, the bar, and those helped by legal aid funding and then head out to speak to their legislators, urging them to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents.

Louis and Laura brought a few specific requests in relation to this important event, which will take place on January 25, 2018. First up, they stressed just how important a major turnout is in signaling the continued importance of civil legal aid to Massachusetts representatives and senators. Second, they stressed that even more important is ensuring that all those who took the effort to attend, actually head out to speak to their own legislators, and/or their staff. This day is most effective when legislators hear from many of their own constituents about the importance of MLAC funding from a local level. Finally, Louis and Laura stressed the importance of fully utilizing social media this year, which will help to get out the word about the importance of civil legal aid generally, and encourage more people to join the call for civil legal aid funding.

For a full rundown of just how important this effort is, check out this post, and be sure to read and listen to recaps of last year’s Walk to the Hill and stay tuned for how you can get involved. If you are interested in learning more, feel free to contact me at adaniel@bostonbar.org . Or reach out to the EJC for information about finding, or starting, your own team.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Third Access to Justice Commission Reconvenes  

This week, the Third Massachusetts Access to Justice Commission (Mass A2J Commission) hosts its first meeting of the new Commission year, looking to continue and expand efforts to ensure access to justice (A2J) for low-income residents of the Commonwealth.

A Brief History

In September 2004, the Massachusetts State Planning Board for Civil Legal Services recommended the formation of a Massachusetts Access to Justice Commission in order “to provide leadership, vision and coordination to the multitude of organizations and interests involved in assuring access to civil justice for the low-income families and individuals in the Commonwealth.” The Supreme Judicial Court (SJC) accepted this invitation and created the Mass A2J Commission by order on February 28, 2005.

The Court gave the First Commission a five-year mandate (2005 – 2010) to conducts its activities and appointed 21 members from judiciary, the private bar, law schools, and legal services and social services agencies. Former Chief Justice Herbert P. Wilkins served as chair and attorney James T. Van Buren served as co-chair. The First Commission had a number of key accomplishments, including production of a report analyzing the barriers to A2J in the Commonwealth, research on the roles that social service organizations and the executive branch play in providing and expanding access to justice to low-income individuals, and thorough study of the civil delivery system across the network of relevant stakeholders.

The Court appointed 23 members to the Second Commission and Chief Justice Ralph D. Gants and attorney David W. Rosenberg served as co-chairs of the Commission over its five year mandate from 2010 – 2015. The Second Commission continued the work of the First and also made a significant number of new accomplishments, including adoption of a $51 “Access to Justice Fee,” as a voluntary contribution to the Massachusetts IOLTA Committee with the annual attorney registration fee; a study of court service centers as a tool for unrepresented litigants and the launch of successful pilot centers in the Brooke Courthouse in Boston and in Greenfield; and development of the Legal Resource Finder, which allows litigants to learn whether they are eligible for legal services and how to seek help if so.

The Current Commission

The Third Commission, which will run until 2020, is composed of 30 members and was chaired by former Associate Justice Geraldine S. Hines and Susan M. Finegan until Justice Hines’ retirement this year. Chief Justice Ralph Gants will step in as co-chair for the remainder for the Commission’s term. This Commission adopted a mission statement centered on five priorities:

  • Increasing justice by improving the effectiveness of, and the funding for, civil legal services organizations;
  • Increasing services provided by private attorneys;
  • Improving assistance to unrepresented litigants;
  • Improving access to justice beyond the courts, such as in administrative agencies; and
  • Exploring the role of non-lawyers in the provision of appropriate civil legal assistance.

Only two-fifths into its mandate, the Commission has already had some significant victories, including receipt of one of seven Public Welfare Foundation/Justice for All grants to states for development of a strategic action plan for improving access to justice throughout the Commonwealth, expansion of the civil appeals pro bono program to cover the entire Commonwealth, and continued development of the Access to Justice Fellow program where 74 returned lawyers and judges have offered over 76,000 hours of pro bono in the past five years.

Read a more in-depth history of the prior Commissions’ work here and reports on past Commission activities here.

This past year alone the Commission accomplished a few of their priorities, including statewide expansion of the Housing Court, which we’ve also been calling for over the past three years. This means that one-third of the state will no longer be denied access to this critical resource, which offers judges that are experts in housing law and other benefits, like Housing Specialists, who mediate cases and save litigants time and money.

In addition, the Commission endorsed the report of the Access to Attorneys Committee, chaired by attorneys Joel Feldman and Mary Lu Bilek. The Committee met over 18 months to investigate and recommend ways in which the private bar could meet the legal needs of litigants who cannot retain an attorney. The Final Report recommended the Commission and the Commonwealth do a number of things, including:

  • “strongly support efforts to expand the right to counsel where the most essential needs of low income litigants are at stake,
  • further investigate apparent obstacles to the use of fee shifting to serve low income litigants by analyzing existing data decisions in the Housing and Probate Courts,
  • track usage of LAR in Mass Courts and provide consistent LAR information at Court Services Center, and
  • include LAR and fee shifting components as part of the Practicing with Professionalism seminar required of all law school graduates.”

Read the Access to Attorneys Committee’s Report here and the Third Mass A2J Commission 2017 Annual Report here.

The Year Ahead

As mentioned, the Mass A2J Commission first 2017 – 2018 Meeting takes place today, and the agenda if full of exciting developments that will shape the year ahead. First up, the Commission will welcome Chief Justice Gants as returning Co-Chair as well as a Laura Gal, who is the new consultant to the Commission.

The meeting, and coming year, will also focus on the current progress of the Justice for All Project mentioned above. The grant, awarded in November 2016 involves assessing the current resources available to assist those Massachusetts residents who cannot afford a lawyer for essential legal needs and producing a statewide plan to bridge those gaps in services. Over the spring of 2017, regional meetings were held across the state, and in June, a statewide conference was convened at Harvard to further develop creation of the strategic plan. Following these meetings, working groups divided by the issue areas of consumer debt, housing, family, and ecosystem were formed to develop the plan and produce potential pilot projects for the year ahead. We are looking forward to following and participating in the continued evolution of this project.

The Greater Boston Immigrant Defense Fund is also on the agenda for today’s meeting. As we reported last month, the Fund is a the product of private funding through foundations and law firms, facilitated through partnership between the City of Boston, the Massachusetts Legal Assistance Corporation (MLAC), and the Massachusetts Law Reform Institute. The Fund will work to protect and support Boston’s immigrant and refugee communities by increasing access to legal representation to indigent individuals in deportation proceedings in Immigration Court as well as community education and preparedness programing like know-your-rights trainings. Through the Boston Bar Foundation’s grant-making mechanism, we are acutely aware of the critical need and importance of providing legal representation in the area of immigration law.

With applications for funding now under review, we are looking forward to learning more about what the Commission plans to do to ensure the success of this important Fund and how members of the bar can be involved!

Another key item on today’s agenda is the recently-announced $8.3 million two-year Office for Victim Assistance (MOVA) grant obtained by MLAC to increase access to civil legal services for victims of violent and economic crimes in Massachusetts. Victims of crime are often left with significant civil legal needs related to things like child custody, health care, housing, and immigration. MLAC will, working in partnership with MLRI, disburse the funds to regional and statewide civil legal aid programs, and the Commission, which helped to spearhead this grant application will undoubtedly be working hard in the coming year to ensure the project runs smoothly and efficiently.

Yesterday’s statement announcing the Grant noted the BBA’s own Investing in Justice report, which highlighted the importance of investing in civil legal aid services and demonstrated the costs saved with such investments. In that statement, BBA President Mark Smith said:

“The BBA’s study demonstrated that providing civil legal aid to the vulnerable is not only the right thing to do but also provides the Commonwealth with a return on investment. This generous grant from MOVA will help expand access to justice for victims at a critical moment in their lives.”

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

New BBA Report Recommends Comprehensive Criminal Justice Reform

In July 2015, when the leaders of all three branches of government in Massachusetts invited the technical assistance of the Council of State Governments’ Justice Center (CSG) in conducting a comprehensive review of the Commonwealth’s criminal-justice system, it wasn’t just the report from CSG they were eyeing.  They were also looking ahead to the criminal-justice debate that the Legislature will take up over the coming weeks.

And as the CSG team, with the guidance of a working group composed of a few dozen stakeholders from Massachusetts, prepared its final report at the start of 2017, then-BBA President Carol Starkey, of Conn Kavanaugh, was also anticipating this debate. In response,  she appointed a BBA working group to not only review and analyze the CSG work product, but also consider further reforms that the BBA could recommend. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group spent the first half of the year studying which areas of reform would be most necessary and effective in producing a fairer and more effective criminal-justice system for the Commonwealth.

We’ve previewed this moment several times in recent months, but have now finally reached the point when the criminal-justice reform package that we’ve been waiting more than two years for is about to take shape and actual votes are being cast at the State House.  In just the past several days, two new bills have advanced one step closer to a floor debate (more on that below), and we are proud to let you know that the BBA’s working group on criminal justice has also released its report and recommendations, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.”

You can find the full report here.  And listen to Kathy Weinman discuss the report on WGBH’s All Things Considered here.

In brief, the report commends the CSG proposals, but calls for broader reforms to reduce recidivism and make Massachusetts’ criminal justice system fairer and more cost-efficient.  The recent research conducted by the CSG, and others, highlights this need for wider reforms , including to address the critical issue of racial disparities. In Massachusetts, racial disparities in incarceration are among the worst in the country: the disparity between Hispanic individuals and white individuals is the highest in the nation, and the disparity between black individuals and white individuals is thirteenth among the fifty states. As President Mark Smith states in the press release accompanying the report:

 We must ensure that the criminal justice system treats everyone equally and fairly. Even if we cannot identify the causes of these inequities with precision, we believe we know enough to take action to address its consequences, and the time has come to do that now.

The report calls for six additions to the previously proposed reforms:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

According to Martin Murphy, these reforms:

…point[] the way forward to a criminal justice system that is fairer and more effective – one that allows people to break free from the cycle of poverty and recidivism, leaving the Commonwealth stronger and safer.

The report also could not come at a better time, as the Legislature’s Judiciary Committee has just released both an omnibus bill (S. 2170) that tackles a wide array of reform ideas—from decriminalization of certain misdemeanors to restrictions on solitary confinement to creation of a parental testimonial privilege—and a much-narrower bill (H. 3935) that closely tracks the CSG recommendations.  Those recommendations, which focused on efforts to reduce recidivism, earned wide acclaim; but while there was near-universal agreement that more needed to be done, the CSG working group couldn’t reach consensus on what those further reforms should look like.

The legislative debate—first in each house, and then in a conference committee tasked with working out the differences—will settle the question, at least for this current two-year session, of what, if anything, will be done beyond the CSG bill.  That much is yet to be answered, as is the question of whether the Legislature will start by passing a CSG-only bill (like H. 3935), and then take up broader reforms, or whether they will try to take it all on in one go.

Regardless of which direction the debate goes, the BBA will be there to advocate for those reforms outlined in the Report. We look forward to keeping you updated on the state of criminal-justice reform in the Commonwealth!

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: ICE Conducts Raids in Massachusetts, Points to SJC decision

Last week, ICE conducted a four-day immigration enforcement action called Operation “Safe City,” which focused on regions where deportation officers were denied access to jails and prisons or where ICE detainers were not honored. In their statement on the raids, ICE officials specifically mentioned Massachusetts, where the Supreme Judicial Court recently held, in Lunn v. Commonwealth, that honoring an ICE detainer would be tantamount to an arrest, and that no law in Massachusetts allows a law enforcement official to arrest someone without a warrant for an immigration violation, a civil offense.

Read an overview of the oral arguments in that case here, and our statement on the decision here.

Initial reports indicate that some of these arrests may have occurred in and around courthouses. There are serious, nationwide concerns, that increased ICE presence and enforcement actions in courts may chill undocumented victims and defendants from exercising their rights and deter witnesses from appearing. Given the potential access to, and administration of, justice implications, this is an issue we’ve been following closely. We even had the chance to discuss with our Congressional Delegation during our advocacy at ABA Day in April, and it was also on the minds of the ABA House of Delegates at their Annual Meeting in August.  Be sure to watch this space for more updates!