Monthly Archives: March 2019

Last month, we updated you on the launch of our 2020 (FY20) budget advocacy. As mentioned there, our attention is now focused on the Legislature as the House, and then the Senate, craft their own budgets. Right now, the House Committee on Ways and Means is examining the Governor’s Proposal and gearing up to release its own recommendations, which will be debated and voted on in April.

We communicate our budget priorities at each step of this process, and earlier this month, BBA President Jonathan Albano sent a letter to the newly-appointed Chair of the House Committee on Ways and Means, Aaron Michlewitz, explaining those line-items critical to a well-functioning legal system and providing equal access to justice to residents of the Commonwealth.  

You can read the full letter here.

As usual, we spell out our support for the Massachusetts Legal Assistance Corporation (MLAC), the largest funder of legal services organizations in the Commonwealth and argue for a $5 million increase in funding, or a $26 million total appropriation. For the full overview of why this funding is so important, visit this blog post. 

Our letter also explains our continued support for adequate funding for the Trial Court, which handles all the cases filed in the Commonwealth’s courts and urges the inclusion of the Trial Court’s requested maintenance-level appropriation and any necessary increases that results from collective-bargaining negotiation. From there, the letter further supports the full funding of the Committee for Public Counsel Services operations up-front, noting the vital role the agency plays in keeping with the right to counsel under our laws and the Constitutions of Massachusetts and the United States. And finally, the letter asks that $5 million go toward community-based residential re-entry services, which would help to ensure lasting recidivism reduction on the heels of last session’s historic criminal justice reforms.  

Visit this post for more details on these budget asks.

After the House debate and vote, it’s on to the Senate and then to a conference committee to reconcile the differences between the two. We’ll keep you posted at each step of the way and let you know how you can join us in supporting these critical line-items!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

This week, the BBA Council endorsed a measure designed to fix a problem dropped in our laps by a recent change in federal tax law.  To get there, though, we’re going to have to work our way through a discussion of alimony, tax deductions, and a little math.  (Or, just skip to the last two paragraphs!)

When Congress undertook a massive overhaul of the federal tax code near the end of 2017, they included a ticking time-bomb for divorce lawyers and their clients—one set to go off at the very end of 2018: Starting in 2019, all newly-ordered alimony would not be deductible from the payor’s gross income (nor attributable to the payee’s) for federal tax purposes.

For divorcing couples, this amounts to the IRS reaching deeper into their collective wallets—or, depending on how you look at it, the end of the federal government partially subsidizing alimony.  That’s because until this year, couples were able to shift that amount of income from the payor to the payee—who quite often, even with alimony included, occupied a lower tax-bracket than the payor, meaning the amount of alimony was taxed less than it otherwise would be.

In one sense, this is logical, since the payor doesn’t truly enjoy the benefit of this income, as it flows through to the payee.  In another sense, it helped somewhat in resolving alimony disputes, because while the payor could be said to have “lost” that amount of income, the loss was reduced by a consequently lower tax burden.

Consider an alimony payment of $10,000 per year, with the payor in the 25% bracket and the payee in the 10% bracket.  The former’s taxes go down by $2500, but the latter’s rise by only $1000.  It’s as if the couple has an extra $1500, thanks to the feds.

Now that’s been wiped away, the federal government gets paid first, and it makes for less money to go around in alimony cases.  But in Massachusetts, in particular, it presents a dilemma, because of the way our statutory alimony guidelines operate.  When alimony reform was enacted in 2011, language was added to say that, for general alimony, a judge should award “30 to 35 per cent of the difference between the parties’ gross incomes”, or the payee’s need—whichever is smaller.

At the time, it was assumed that alimony would remain federally tax-deductible, and the 30-35% range offered a consensus rule of thumb for achieving the desired outcomes (though a judge can always deviate from that guideline “upon written findings that deviation is necessary”).  Now, however, with the new tax law shifting the burden of paying taxes on alimony from the payee to the payor, the 30-35% rule is producing skewed, unintended results—yet judges are left without clear guidance on what to do about it.

Enter Marc Bello, a forensic accountant who specializes in marital disputes.  He explored hundreds of scenarios, with differing levels of payor and payee incomes, to calculate the after-tax impact of the federal change on Massachusetts couples.  What he found was that (a) under the new regimen, payees were ending up with more take-away income than before—sometimes as much as the payor; but (b) this problem could be solved by adding a new percentage guideline for non-deductible alimony.

(This would be as good a time as any to point out that alimony remains deductible by payors for Massachusetts state-tax purposes.  And that alimony payments made pursuant to pre-2019 orders remain federally deductible.)

Marc concluded that in virtually all situations, applying a rule that alimony should equal 23-28% of the difference in the parties’ incomes (when alimony is not deductible) leads to the same after-tax outcome as the current 30-35% rule does (when alimony is deductible).  After his presentation to the BBA’s Family Law Section, they voted to endorse a change in the percentage guidelines to reflect his findings.

Some in the legal-services community expressed concern that their clients might be negatively affected, but after Marc delved further into the low-income scenarios behind his research, our Delivery of Legal Services was satisfied that the proposal would effectively maintain the status quo even in such cases.  They voted to endorse specifically the 23-28% range, out of fear that if the new figures were any lower, they could then begin to harm low-income payees.

After presentations to our Executive Committee and Council this month by Family Law Section co-chairs Lisa Wilson of Wilson, Marino & Bonnevie, P.C., and David Friedman of Rackemann, Sawyer & Brewster, the Council voted to support the 23-28% guideline for non-deductible alimony, which would sit alongside the existing 30-35% guideline for deductible alimony.

This proposal has also won the endorsement of the Massachusetts Bar Association, and the Women’s Bar Association, and we hope that this unified front will help us convince the Legislature of the urgency of the issue.  We will next seek a sponsor to file legislation and advocate for its timely enactment.

We were pleased to welcome the new Suffolk County District Attorney to 16 Beacon Street last week, to hear about her formative experiences, her plans for the office, and her take on hiring and management.

Fresh off her historic election last fall, and barely two months into the job, DA Rachael Rollins visited the BBA on March 11 and took questions from Cat Ham, of the Suffolk DA’s Homicide Unit and co-chair of the BBA’s Criminal Law section, and Kate Cook from Sugarman, Rogers, Barshak & Cohen, P.C., as well as from audience members.

After earning a lacrosse scholarship at UMass-Amherst—and then engaging in a legal battle to save the program and other women’s sports at the school by threatening to bring a Title IX discrimination lawsuit—DA Rollins entered law school with a plan to pursue a career in sports law, specifically to become the first female Executive Director of to the National Basketball Players Association. She credited the co-op program at Northeastern Law School with helping her learn more about the field and gain valuable experience. While at NUSL, she interned at the NBPA and with the Boston Celtics After earning an LL.M. at Georgetown, she ultimately landed at the National Labor Relations Board in Boston before joining the firm then known as Bingham McCutchen (now Morgan Lewis). She said that, at Bingham, her work with former Suffolk DA Ralph Martin, the first African-American to hold that post, and her selection to participate in a District Attorney rotation in Plymouth County steered her toward criminal law.

What drove her to make the run for DA in 2018 was her anguish at watching as black and brown men were shot by police across the country, with no transparency about charging decisions (or lack thereof). That was also her motivation for announcing, the same day as her BBA appearance, the creation of a Discharge-Integrity Team, to help her exercise her exclusive authority on how to proceed in cases of police-involved shootings. Rollins is also taking pains to keep the deceased’s family apprised of the investigation’s findings.

Perhaps the policy she’s most associated with, in the public’s mind, is her list of 15 offenses for which she’s pledged to consider alternatives to prosecution.  DA Rollins said she’d given much consideration during the campaign to the development of the list after discussions with law enforcement, criminal defense attorneys, prosecutors and judges about the types of cases where a different kind of accountability than incarceration is called for. Her plan is to pause and do some “quality review” before putting people on what she described as a “conveyor belt” to jail, because these are overwhelmingly defendants dealing with poverty, mental-health concerns or substance use disorder in those instances. One part of the more thoughtful approach she’s aiming for is to make social services more available. But she promised to review the policy and go where the data lead, after consulting the public.

The DA intends to be closely involved with the communities she serves. In part because she’s seen it first-hand in her own immediate family, she understands that the justice system needs to better handle the cycle of treatment and relapse on the path to recovery from addiction. That means more case workers, social workers, and clinicians—an effort, she notes, that should’ve begun in the 1980s when it was mostly Black and Brown people struggling with addiction. She believes that since she has the power to send someone away, she needs to visit the prisons and jails she’s sending them to. And her ADAs should understand their role, too: If you want to work for her, she wants to know what drives you to be a prosecutor.

Asked about her greatest challenge so far as DA, Rollins cited the sprawling bureaucracy she now heads up, and the extreme pace of work—beyond anything else in the Commonwealth, by her measure. There’s simply very little time to dwell on each of the individual decisions required in the thousands of cases her office handles. And yet, working alongside similarly-situated victims who may have different ideas of justice, on the same fact patterns, she’s learned there’s no one “right” answer or approach; each case must be addressed on its own merits.

“We work at a very fast pace and handle incredibly complicated and violent matters,” Rollins said. “Not everyone can handle this pace of work and not everyone is cut out for it. I am incredibly proud of my staff, who show up every day, work hard, and give their best to the Commonwealth.”

Nevertheless, as a survivor of cancer, this job is not the toughest thing she’s faced. Her hard-earned strength and resilience are just what the job calls for, in her estimation. As she told the BBA audience, a DA needs to be decisive and instill confidence in employees, while still demanding accountability. Rollins says she knows what she doesn’t know, and she’s not afraid to defer to expert staffers.

Finally, responding to a question from Kate Cook, DA Rollins offered this advice to the new lawyers and law students in the room: First, be great at what you do and how you do it. At the DA’s Office, she seeks out people who are driven, hard-working, and ambitious—qualities more important to the ADA job than their credentials. “Be your own advocate,” she advised, and know when it is time to move on.

Earlier this week, the BBA Council approved a Business Transactions Section request to endorse a “Statement of Opinion Practices” that would establish a national basis for the preparation and understanding of third-party legal opinion letters, or “closing opinions.” Keep reading to learn more about the BBA’s past work on closing opinions and this latest development.

                In the late 1990s, the BBA’s former Business Law Section had a “Legal Opinions Committee” that worked on a range of issues related to the issuance and substance of closing opinions, which are delivered at the closing of a business transaction by counsel for one party to another party in order to satisfy a condition to the opinion recipient’s obligation to close. Specifically, between 1998 and 2005, the Committee worked to produce a streamlined form of opinion, building off of the ABA Legal Opinion Principles. The BBA Council adopted the Committee’s proposal and it eventually became a national model. You can read more about this in a 2005 Business Lawyer article drafted by Stanley Keller and Donald Glazer, who coordinated the preparation of the BBA’s Streamlined Form.

                Additionally, in 2007, the BBA Council joined a number of other bar associations across the country in endorsing a “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions.” This proposal supported the use of customary practice in closing opinions as it permits an opinion giver and recipient to have shared understandings of an opinion without having to state them in the opinion, removing the need for burdensome lists of diligence procedures, definitions, exceptions, and assumptions where customary practice offers this content.

                Now, more than a decade later, we are pleased to continue our efforts and leadership in this space, this time under the guidance of our Business Transactions Section, which grew out of the old Business Law Section and is currently co-chaired by Marc Mantell of Mintz Levin and Gitte Blanchett of Morgan Lewis. The Section Steering Committee considered the latest project produced by the Legal Opinions Committee of the American Bar Association’s Business Law Section and the Working Group on Legal Opinions Foundation to formulate a Statement of Opinion Practices, which would establish an updated national basis for the preparation and understanding of closing opinions. The project also included a document called the “Core Opinion Principles,” designed for use by those who want a separate document they can incorporate by reference or attach to a closing opinion.

                After review and discussion, the Steering Committee voted to seek BBA endorsement of the proposal. Stanley Keller of Locke Lord, a key leader in the previous BBA closing opinion efforts, joined Section co-chair Marc Mantell in presenting the proposal to the BBA Council, explaining the value of having a national basis for these opinions as well as the importance of gaining broad support by entities like the BBA. By endorsing the proposal, the BBA joined a large number of other interested groups, including the Massachusetts Bar Association, the Tribar Opinion Committee, and the Business Law Sections of the Tennessee Bar Association, Virginia Bar Association, State Bar of Texas, and the Florida Bar to name a few.

                We anticipate that the Statement and Core Opinion Principles will be published inThe Business Lawyer soon, and we look forward to being kept apprised by our Business Transactions about the impact this resource is having on the practice.  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Last month, we updated you on our 2019 – 20 legislative priorities, including continued support for a ban on the use of “conversion therapy” on minors, first endorsed by the BBA in 2015. This very issue was the topic of one of the first committee hearings of the legislative session. Keep reading to learn more about the hearing and why Massachusetts should pass Rep. Kay Khan’s H. 140, An Act Relative  to Abusive Practices to Change Sexual Orientation and Gender Identity in Minors.

On Wednesday, the Joint Committee on Children, Families, and Persons with Disabilities convened a hearing to take up legislation banning the use of “conversion therapy” practices on minors by licensed health professionals in the Commonwealth. The hearing room was packed and included testimony from many legislators as well as advocates and experts, including Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus, Ben Klein of GLAD, Dr. Carole Allen of the American Academy of Pediatrics and Kate Thompson of Boston Children’s Hospital also explained why this legislation is so important.

The BBA is proud to join these voices by submitting written testimony in support of H.140. You can read the full testimony here. 

The testimony, submitted by BBA Family Law Section member Elizabeth Roberts of Roberts & Sauer LLP, explains that the legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. Typically, the use of this therapy occurs in the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes, including higher rates of depression, substance use, suicide attempts, homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

Our testimony additionally focuses on the legal aspects of the legislation, pointing out that First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power. For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9^th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, in 2017, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, the existing case law makes it clear H.140 is a valid exercise of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. The BBA joins a long list of medical and professional organizations in opposing the use of these practices, including the American Bar Association and the American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization. To date, fifteen states, six more since the hearing last session, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the sixteenth state to enact these protections.

Following the hearing, H.140 was reported favorably by the Committee, and we will keep you posted on ways you can join us in making sure these protections are enacted this session!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association