Monthly Archives: December 2017

BBA Government Relations Year in Review

As we begin to turn our attention to 2018, we wanted to spend a moment to recap our past year in the Government Relations Department.

Our annual survey of our Issue Spot posts reveals our priorities over the past year, and it will come as no surprise to learn that Criminal Justice Reform and Access to Justice were two key focal points. We also offered regular updates on our budget priorities, legislative advocacy, news from the courts, and comment submissions, with the remainder of the posts focusing on various notable events and speakers.

Criminal Justice Reform

It’s been a big year for criminal justice reform here at the BBA, and for the Commonwealth as a whole. A couple of decades since the last comprehensive set of reforms, the Legislature is posed to pass sweeping changes, and we’ve been right in the mix with the release of our own report and recommendations for necessary reforms.

February 23: Let the Criminal-Justice Reform Debate Begin. The year kicked off with the long-anticipated release of the Council of State Governments’ Justice Center (CSG) report and recommendations, following 18 months of CSG review and analysis. In an effort to achieve consensus, the recommendations focused largely on recidivism reduction and improvements in re-entry efforts, leaving many issues unaddressed, especially on the so-called front end of the system (e.g., diversion programs, cash bail, and sentencing,).

June 29: Criminal-Justice Reform Inches Forward. Over the summer, the Joint Committee on the Judiciary held two heavily-attended public hearings on the CSG legislation as well as over 150 other criminal justice bills on items like criminal procedure, sentencing, prison programs, and related issues. BBA Treasurer Martin Murphy of Foley Hoag testified on our behalf, focusing on our long-standing opposition to mandatory minimum sentences.

October 05: New BBA Report Recommends Comprehensive Criminal Justice Reform. As the CSG group prepared release of its report, then-BBA President Carol Starkey of Conn Kavanaugh appointed a BBA working group to review and analyze the CSG work and consider further reforms necessary for improving the criminal justice system in Massachusetts. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group released its report and recommendation, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.” This report, which calls for broader reforms than that recommended in the CSG proposal, outlined six key ways to make the criminal justice system here in the Commonwealth fairer and more cost-efficient.

November – December. As the year wrapped up, both the House and the Senate passed criminal justice reform legislation that would offer significant changes to our system. We offered updates at each of the key steps:

While neither of the bills in conference would implement all of the recommendations of the BBA Report, they would take significant steps toward reaching the goals outlined in the six areas addressed in the Report, and we will continue to advocate our positions to the conferees and keep you updated as the debate continues!

Access to Justice

As a key part of the BBA’s mission, 2017 was also filled with many access to justice-related updates.

January 12: Walk to the Hill 2017: Rallying for Civil Legal Aid. Every year kicks off with one of the largest access to justice events in the state, and one of the largest lobby days at the State House, and 2017 was no different. Here, we previewed the January 26 Walk to the Hill event…

February 2: Walking for Justice … And here, we recapped the event, where around 700 lawyers gathered in the Great Hall to hear from then-BBA president Carol Starkey, the MBA President, and SJC Chief Justice Ralph Gants on the importance of civil legal aid funding, before heading out to speak to their own legislators.

May 3: BBA at ABA Day 2017. While much of our government relations focus remains at the local and state level, every April, BBA leadership heads to D.C., alongside bar leaders from across the country, to advocate for federal funding for civil legal aid and other important issue areas. Last year, in addition to calling for adequate funding for the Legal Services Corporation, then-BBA President Carol Starkey and current-BBA President Mark Smith also discussed access to justice for homeless veterans on their congressional delegation visits. The 2017 ABA Day felt especially close to home, as Representative Joe Kennedy received the ABA Justice Award for his work on civil legal aid, upon nomination by the BBA and MBA.

July 27: BBA Council Endorses Two Access to Justice-Focused Policy Items. The July BBA Council took on an access to justice theme with the consideration of ABA Resolution 115 and a set of comments from the Civil Rights and Civil Liberties Section. The Council voted to endorse the Resolution, which called for the provision of counsel in federal immigration proceedings, by the federal government, and unless and until then by all levels of government, with a priority given to those individuals in removal proceedings who are detained. The set of comments related to the proposed change from print reports of appellate decisions to electronic reports only, and presented key access to justice considerations that must be made when making this switch, as requested by the Court’s comment solicitation.

October 12: Third Access to Justice Commission Reconvenes. The Third Access to Justice Commission held its first meeting of the year in October, celebrating key victories of the past year like the statewide expansion of Housing Court—approved by the Legislature after years of efforts by a coalition led by the Massachusetts Law Reform Institute and including the BBA—and previewing some key initiatives in the coming year, including the Justice for All Project, the Greater Boston Immigrant Defense Fund, the Office for Victim Assistance Grant to the Massachusetts Legal Assistance Corporation (MLAC).

October 19: A2J Update: Legal Services Corporation comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council. In what proved to be an access to justice-focused October, the Legal Services Corporation (LSC), the federal funder of legal services programs, came to Massachusetts for its Quarterly Board Meeting. The Meeting consisted of a Forum with a number of panels on topics like “Natural Disasters, Legal Aid, and the Justice System” and “The Importance of Access to Justice to American Business.” Following the forum, BBA President-Elect Jonathan Albano was invited to speak at the Pro Bono Awards Reception honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations. That same month, the Chair of the Equal Justice Coalition (EJC) Louis Tompros of WilmerHale and Director of the EJC Laura Booth visited Council to forecast the FY19 civil legal aid budget campaign and thank the BBA for our continuing work in support.

December 14: Walk to the Hill with the BBA. As 2017 began with a focus on civil legal aid and Walk to the Hill, so it wrapped up, as we previewed the 2018 event in one of our last Issue Spots of the year.

Budget Advocacy

We also, as usual, continued to advocate for our key priorities in the budget. In addition to adequate funding for civil legal aid and the MLAC line-item, we also successfully advocated for funding and authorizing language for statewide expansion of the Housing Court, and renewed our call for adequate funding for the Trial Court Department and the Committee for Public Counsel Services (CPCS).

February 16: Initial Read on the FY18 Budget

March 30: BBA Budget Advocacy for FY18

April 13: BBA Budget Update: House Ways and Means Proposes FY18 Budget

June 1: Budget Update: Senate Approves FY18 Budget

July 13: Budget Update: Conference Committee Submits FY18 Budget to Governor

By way of reminder, the FY18 Budget provided an $18 million appropriation (level-funding from FY17) for the MLAC line-item, $642.6 million for the Trial Court Department, and around $59 million for CPCS staff and operations, $98 million for CPCS private counsel compensation, and around $15 million for indigent court costs. The past few years have seen revenues fall consistently short of initial projections, creating on an on-going budget crunch, but the run-up to the current fiscal year was especially challenging, with the shortfall continuing to widen throughout the budget process, causing conference-committee members to take the drastic step of revising their appropriations downward on the fly. Early indications are that, while revenues remain constrained, the outlook for the coming FY19 (starting July 1) is not quite so dark.

In a major budget victory, after more than four years of advocacy, the FY18 budget included both funding and authorizing language for statewide expansion of the Housing Court. The Housing Court Department has begun this expansion, and you can expect more updates for us on this rollout into 2018.

State House Updates

In addition to our budget advocacy and push for criminal justice reforms, we continued to advocate for our past positions, like support of a ban on conversion therapy practices on minors, and added a few new ones, like support for Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Assets Act language. Here’s a recap of these and other legislative updates:

February 8: State House Forecast for Civil Rights and Civil Liberties

March 23: What Will Become of Your Digital Assets?

April 6: News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

May 11: RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

May 18: BBA Testimony at Judiciary Committee Hearings

June 8: BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

News from the Courts

We used a number of Issue Spot posts to update key case and court developments. One of the biggest stories of the year was the highly-anticipated “Bridgeman II” decision that stemmed from Hinton Drug Lab Scandal and the misconduct of chemist Annie Dookhan. You’ll recall that the BBA filed an amicus brief, drafted by then-Amicus Committee co-chairs Elizabeth Ritvo of Brown Rudnick LLP and Anthony Scibelli of Barclay Damon LLP in the case, calling for a global remedy, or the dismissal of all drug charges tainted by the misconduct. While the court did not adopt the global remedy approach, the decision placed the burden on the DAs and not the individual defendants to correct the misconduct and produced a similar result, with the eventual dismissal by prosecutors of over 20,000 convictions.

January 26: SJC Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

March 2: Chief Justice Gants Addresses the BBA Council

March 16: Recent Developments in the Law on Jurors

April 20: SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

September 27: SJC Update: Court Narrows Felony-Murder Rule

October 2:  ICE Conducts Raids in Massachusetts, Points to SJC decision

October 30: Chief Justice Ralph Gants Delivers the State of the Judiciary


Many of our posts also focused on the hard work of our sections in submitting comments on proposed new rules and amendments to existing rules:

March 9: Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

August 10: Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

October 26: BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

December 7: Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

Miscellaneous Posts

Finally, we took the time at various points throughout the year to recap key speakers, dates and events:

January 19: AG Healey Spells our Priorities at Council

March 27: Issue Spot Podcast Episode 5: Gender Identity and Public Accommodations in Massachusetts

April 27: BBA Council Hears from the Governor’s Chief Legal Counsel

May 25: BBA Law Day Dinner: Celebrating the Leaders Who Shape and Protect the Rule of Law

August 24: ABA Annual Meeting Recap

September 7: Welcome to the 2017 – 2018 Program Year

September 14: DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

September 28: BBA Annual Meeting Preview

We look forward to continuing to keep you up to speed on our work, and we hope that you’ll keep reading. Happy New Year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Walk to the Hill with the BBA

Each year the Equal Justice Coalition brings together hundreds of attorneys to participate in one of the largest lobby days at the Massachusetts State House with the aim to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents. Lawyers form teams and head to the State House to hear from various leaders in the legal community and speak to their own state Senators and Representatives on the crucial need to adequately fund the line-item for the Massachusetts Legal Assistance Corporation, the largest source of funding for the State’s network of legal aid providers.

For a full rundown of just how important this effort is, read up on the work of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, check out reporting on last year’s efforts, and review the FY19 budget request.

To join this effort, you’re invited to join the Boston Bar Association’s Team as we walk to the State House together to advocate for the FY 19 budget request. We’ll meet for breakfast at the BBA to hear tips for talking with your legislators from our Director of Government Relations.

If you’d like to join the BBA’s Team and attend the breakfast, register here.

To check if your firm or organization has a team, the full list of registered teams is posted here.

If you have questions about Walk to the Hill, please contact Alexa Daniel at for more details.

Criminal Justice Conference Committee Formed

Last week, leaders of the Massachusetts Senate and House of Representatives named the six conferees who will be tasked with working out differences between the two chambers’ respective omnibus bills on criminal-justice reform.  The Senate passed its legislation, S. 2200, in October, and the House followed suit last month with H. 4011 and H. 4012.  Senator Will Brownsberger and Representative Claire Cronin—co-chairs of the legislative Judiciary Committee, which initially worked on the issue—will lead the panel, joined by Senator Cynthia Stone Creem, Senate Minority Leader Bruce Tarr, House Majority Leader Ronald Mariano, and Representative Sheila Harrington.

Each house’s bill would bring sweeping changes to the Commonwealth’s criminal-justice system, of the kind not seen for decades.  Certain mandatory minimum sentences would be repealed, pre-trial diversion programs would be expanded, the burden of fines and fees on poor offenders would be somewhat eased, and meaningful reforms would be made to the bail system and to the laws on public access to individuals’ criminal records.  These are just a handful of the topics covered by these comprehensive bills, but all of these areas were addressed in the BBA’s recent report, No Time to Wait.

Although neither bill would implement all the recommendations of our report, they would make progress toward those goals, and we will continue to advocate our positions to the conferees.  There is no formal deadline for the conference committee to release a final bill, but the formal legislative session must conclude by July 31.  (You can get more background on all this here.)

—Michael Avitzur
Government Relations Director
Boston Bar Association

Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Steering Committees, who offer insights from the viewpoint of a particular practice area. Last month, we submitted comments on behalf of the Ethics Committee and the Steering Committees of the Business and Commercial Litigation Section and Criminal Law Section on a proposed amendment to a Trial Court rule and a proposed District Court Standing Order.

Proposed Amendments to Trial Court Rule XIV

In October, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records. You may recall that in 2016, the BBA spent a great deal of time thinking about Trial Court Rule XIV and even established a working group on the matter that, along with various sections, submitted substantial comments on the then-proposed rule. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was only given provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected proposed revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,” that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees did not have much issue with the substance of the rule itself, and instead highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by noting that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that “[o]ne may not use the Attorney Portal to access information in a manner that risks the integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The Criminal Law Section Steering Committee also noted a point of ambiguity in the Terms, with some members thinking the provision that provides “you must not leave your computer or work area unsecured while you are logged into the Attorney Portal,” was somewhat unclear, difficult to enforce, and duplicative, since the terms already note that one is fully responsible for activity that occurs under one’s login credentials. The Steering Committee also raised a point about the Rule itself, which provides that the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.)

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the Rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the Terms, they thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). They proposed a definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. Finally, the committee members felt that the fourth bullet in the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials, even if not permitted (as it currently states “or persons you allow to use your login credentials”), as the prior bullet already states that one is fully responsible for all activity that occurs under one’s login credentials.

District Court Standing Order on Voir Dire Protocol

The Steering Committees of the Criminal Law Section also offered comments on the Proposed District Court Standing Order on Voir Dire Protocol, following an invitation to comment from the Chief Justice of the District Court Paul Dawley. As provided in the invitation to comment, the “new order establishes a standard procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.”

First, committee members commended the District Court for creating the standing order and expressed hope that it would encourage more attorneys to utilize voir dire in the court. Members also found the order to be overall reasonable and helpful, with one individual specifically noting that the explanation and details offered on what questioning is, and is not, appropriate, is especially useful for practitioners.

Committee members also, however, raised a few questions about certain aspects of the rule. For example, some were worried that the order was perhaps overly inflexible. Though the level of detail was noted as very helpful, some felt the requirements were somewhat too involved, and instead, a bit more flexibility should be built into the voir dire process, depending on the nature of the case and the requests of the parties. Some felt the order favored panel voir dire but noted there were instances where individual voir dire made more sense, highlighting the use of panel and individual voir dire in Superior Court that was working well.

In addition, some members also felt the requirement that all voir dire-related requests in criminal cases be filed not later than five business days before trial may not be reasonable in practice. These members noted that the reality of practice in the District Courts is that judges usually do not deal with any trial motions until the morning the case is called, because typically there will many cases called for trial each day. As a result, members felt there was no real likelihood that a judge would address the voir dire with the parties some days before a trial, so instead, simply requiring formal requests to be made by the date of trial would be more reasonable for both attorneys and judges. Some members felt adding a check-off indicating if the parties will be seeking attorney-conducted voir dire to the Pretrial Conference Form would be sufficient and more practical.

Finally, members of the Steering Committee expressed hope that the Boston Municipal Court Department would also soon be instituting rules for attorney-conducted voir dire, and that any such rules would parallel the District Court’s protocol in order to reduce confusion and ease the use of voir dire for attorneys.

A special thanks goes to Co-Chair of the Criminal Law Section Steering Committee, Dean Mazzone, of the Attorney General’s Office, for presenting these comments to the BBA Executive Committee last week! A usual, we’ll be sure to keep you posted when final versions of the proposed amendments to Trial Court Rule XIV and the Voir Dire Standing Order are promulgated.

SJC Approves Amendments to SJC Rule 3:07

Speaking of which, the SJC just approved amendments to the Mass Rules of Professional Conduct Rule 3.5 on post-verdict juror contact, which the Criminal Law Section Steering Committee offered comments on in April. Read more about the BBA’s work on the issue here.

The proposed amendments to Rule 3.5 were meant to conform the rule to the SJC’s 2016 decision in Commonwealth v. Moore, 474 Mass. 541 (2016). In that case, the court held that Mass. R. Prof. C. 3.5(C), adopted in 2015, effectively overruled the rule established by Commonwealth v. Fidler that required attorneys to seek leave of court prior to contacting jurors post-verdict, and to do so only under court supervision and direction. In Moore, the Court also held that common-law principles limiting post-verdict inquiry of jurors to matters relating to extraneous influences and prohibiting inquiry into the individual or collective thought processes of jurors, the reasons for their decision, or the substance of their deliberations, remain as continuing precedent, and that though any attorney is entitled to initiate contact with jurors on permissible subjects without seeking leave of the court, they must adhere to the notice requirements established by the court.

The amended rule now includes the provision that “a lawyer shall not…(c)communicate with a juror or prospective juror after discharge of the jury if:…(4) the communication is initiated without the notice required by law.” In addition to the addition of Rule 3.5(c)(4), the adopted amendment also replaces current comment 3 and adds a comment 3A and 3B. These comments offer more guidance as to when post-verdict juror contact is, and is not, allowed and outlines the specific notice requirements that must be followed when an attorney does wish to initiate contact on a permissible topic.

We are thankful to our members who take the time to review and respond to these comment opportunities and look forward to continuing to be active participants in the comment process in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association