Monthly Archives: January 2020

Walk to the Hill Recap

This morning, hundreds of civil legal aid supporters rallied at the State House for the 21st annual Walk to the Hill for Civil Legal Aid, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This annual event follows on the heels of the release of the Governor’s budget recommendation and formally kicks off the BBA’s budget advocacy. Governor Baker’s plan, known as H. 2, proposed level-funding MLAC at $24 million. While disappointing, this appropriation makes it all the more important to convince legislators of the need for increased funding.

Walk to the Hill is coordinated by the Equal Justice Coalition (EJC), which is a partnership of the BBA, the MBA, and MLAC, and proves to be one of the largest advocacy events of its kind in the Commonwealth every year. With the support of the bar and our community partners, we have achieved back-to-back $3 million increases in the MLAC budget line-item for FY19 and FY20, allowing for the expansion of legal services that are essential to low-income and elderly Massachusetts residents. However, roughly half of the population eligible for legal services is still turned away. This is why we must continue to advocate to increase funding. For FY21, MLAC is requesting an additional $5 million to reach a total of $29 million.

A number of leaders of the Massachusetts legal community, including BBA President Chris Netski, spoke at today’s event to a crowd of hundreds of lawyers and law students. Chris emphasized that the “increased demands on an already overburdened system make it extremely difficult for legal services attorneys to keep pace with the flow of cases, including far too many domestic violence cases, and demonstrate why the need for aid has continued to rise, despite the generous appropriations Governor Baker and the Legislature have afforded MLAC up to this point”. She went on to tell a story of a client who, thanks to MetroWest Legal Services, was able to receive critical immigration assistance and obtain a U visa, as a victim of crime, after being sexually assaulted. President Netski concluded her remarks by saying, “Because the BBA will always champion access to justice, and because we know it’s a good investment, we continue to advocate for civil legal aid and support MLAC’s request for a $5 million increase in funding this year”.

After the remarks in the Great Hall, attendees spread out to meet with their Senators and Representatives throughout the State House, including Chris Netski, who sat down with her Lexington Rep. Michelle Ciccolo, and BBA President-Elect Marty Murphy, who met with both Sen. Nick Collins and Rep. David Biele from the Boston delegation.

If you were unable to join us today, it’s not too late to talk to advocate for civil legal aid! Participate in “Talk” to the Hill throughout the state budget process by calling your legislators. If you know the names of your senator and representative, call the State House switchboard at 617-722-2000 to be connected to their offices. You can also look up your legislators here and access their direct phone numbers and e-mail addresses. The sooner you get in touch, the better!

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

FY21 Budget Season Gets Underway with the Governor’s Plan

On January 22, Governor Charlie Baker released his budget plan for Fiscal Year 2021 (FY21), which begins on July 1.  The BBA had sent him a letter outlining our four budget priorities for the year, and the results were mixed:

  • For the Massachusetts Legal Assistance Corporation (MLAC), the state’s largest provider of funds for legal services, the BBA and other supporters of civil legal aid are seeking an increase of $5 million, to build on the gains that have been achieved in recent years and to continue to chip away at the turn-away rates that have remained too high due to stubbornly increasing demand.  The Governor’s plan (also known as H. 2) would instead offer the same $24 million as in the current fiscal year, so it falls to us and our fellow advocates to continue to make the case to the Legislature again this year as to why this appropriation is so important for access to justice. (See also our recap on Walk to the Hill for Civil Legal Aid.)
  • If the court system has a natural constituency to advocate for adequate funding of their operations, it would have to be the bar.  That’s why we will always make the Trial Court’s appropriations a priority.  This year, they are seeking $771.5 million to maintain their current level of performance, but H. 2 falls a bit short of that, offering $750.9 million.  Again, we will be working to convince legislators to make up that shortfall.
  • The Committee for Public Counsel Services (CPCS) is the state’s public-defender agency, handling criminal defense and other representation for indigent litigants, through both staff attorneys and private bar counsel.  Their line-item would be funded at $261.5 million under H. 2, or about $4 million short of their need.  The plan also does not provide for a much-needed increase in the hourly rates paid to private counsel. 
  • Finally, the BBA has endorsed a recently-created grant program to fund community-based residential re-entry programs for formerly incarcerated individuals, to provide for health care, housing, employment, and substance-abuse treatment, and thereby reduce recidivism and overdose rates.  The $6.3 million in H. 2 would continue the program at its current scale, though we support the Trial Court’s request of $9.6M, which would allow for expansion into new regions.

The budget is now in the hands of the Legislature, where hearings will be held the next couple of months, and then the House Ways & Means Committee will release their own plan in April, followed by the Senate’s turn in May.  The final budget likely won’t be enacted until July, but we will keep you posted here (and with e-mail updates and alerts).

—Michael Avitzur
Government Relations Director
Boston Bar Association

Everything You Need to Know for Walk to the Hill

It’s the most wonderful time of the year! We are, of course, referring to Walk to the Hill, the annual lobby day for civil legal aid. Scheduled for Thursday, January 30, it’s right around the corner. For those of you who don’t know, here’s a primer on the event…

Who

Sponsored by the Massachusetts Legal Assistance Corporation and the Equal Justice Coalition, the event is attended by over 500 attorneys. There will be speeches from BBA President Christine Netski, MBA President John Morrissey, legal aid clients, and SJC Chief Justice Ralph Gants. There will also be legislators … lots of them.

What

The event begins with registration and speeches in the Great Hall. Get ready to be inspired! It is impossible not to be moved when hearing about the impact of legal aid on the lives of so many people in need. After a boxed lunch, it’s on to legislative meetings. Don’t know your elected representatives? That’s perfectly fine – look them up here and make the introduction. Tell them how much legal aid means to you and why it is important that they support this year’s ask: a funding increase of $5 million, for a total of $29 million in FY21. This fact sheet provides some strong arguments you can use to make your case.

If you are ready for a deeper dive, check out Investing in Justice, the 2014 report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts that laid the foundation for our campaign by conclusively demonstrating that:

  • More than 50% of individuals who qualify for legal aid and make it through the wait (roughly 50% of callers give up after being on hold for hours) are nevertheless turned away, solely due to a lack of adequate funding. Tens of thousands are turned away every year, which is especially concerning in areas of basic need such as housing and domestic violence.
  • Court procedures are bogged down and justice is frequently delayed or denied due to the glut of pro se litigants.
  • For every dollar spent on legal aid in the areas of domestic violence, federal benefits, and housing, the state and its residents see returns of $2 to $5, mostly on back-end savings such as shelter, police, and medical costs.

If you’re a social media buff, we’ve got you covered too. Fill out an “I Walk…” placard and tweet a picture using the #IWalkforJustice or #WalktotheHill hashtags. The EJC and others will be actively retweeting the best submissions.

Finally, sign up for action alerts here to get notified of key moments in the budget process and to get access to easy “plug-and-send” emails to officials. We will be promoting similar alerts on this blog and through your weekly BBA e-newsletter as well, so stay tuned!

When/Where

Thursday, January 30, 2020 from 11:00 am to 1:00 pm in the State House’s Great Hall.

Why

There are no bad reasons to Walk to the Hill. For many it is the recognition that lawyers play a special role in society and thus have a duty to serve others. For some it is because they recognize the great work legal aid in Massachusetts does for those in need, helping low-income individuals, the courts, and society at large. For others it is all about increasing access to justice or following up on their own pro bono efforts. Check out this Twitter page where dozens, including a number of #MAPOLI stars, shared why they walk. 

Many firms get in on the act, with firm captains leading the charge to round up as many partners and associates as they can to attend. However, if you do not have a group to walk with, you can join us at our annual pre-Walk to the Hill breakfast at the BBA. Join us on the morning of the Walk at 9:30am to hear from our Government Relations team on lobbying strategies, have a last chance to look up your legislators, and participate in the #IWalkForJustice social media campaign. We will head across the street to the State House together at 11. 

Thinking of trying to put together a group to attend the Walk? Here are some great ideas that work:

  • Offer pro bono credit
  • Ask for a commitment – calendar invites are really helpful
  • Get competitive: How does your department stack up against another? How about your firm vs. others?
  • Get personal – don’t just email friends and colleagues, actually talk to them in person.
  • Help your recruits prepare and coordinate the details for them.

We hope we’ve given you everything you need to know to have a great Walk to the Hill. We look forward to keeping you up to date on all the latest developments in the FY21 budget campaign.

– Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Endorses Co-Parent Adoption Act

The BBA has endorsed legislation to codify a streamlined process for co-parent adoptions by couples using assisted reproduction. H.1485/S.1013, An Act to promote efficiency in co-parent adoption, will allow a petition by such couples to adopt their own children so as to ensure universal recognition and respect for their parentage. The bill will ensure greater clarity, efficiency, and consistency in the adoption process and will especially benefit LGBTQ couples.

Currently, couples who use assisted reproduction must complete adoptions of their own children in order to secure a court decree which ensures their parentage will be respected throughout the United States and internationally. Even if both parents’ names are on the child’s birth certificate, this does not equate to parentage and puts one or both of the parents at risk of having their parentage questioned in the future. Having to adopt their own children puts parents through an immense amount of emotional stress and financial cost that heterosexual couples not using assisted reproduction do not have to undergo. The adoption process is lengthy and invasive, forcing the couple to undergo a home inspection, one or more court appearances, a criminal record search, a six-month waiting period, and other unnecessary hurdles that create a daunting experience for a parent who is already fully engaged in parenting their child. It also forces children born to same-sex couples to remain vulnerable and undergo emotional stress and disturbance to their lives.

H.1485/S.1013 would eliminate these unnecessary barriers and allow LGBTQ and other families who use assisted reproduction technologies to be afforded the parentage rights they deserve.

It is especially important to enact such legislation in Massachusetts because Massachusetts happens to be the state with the highest use of assisted reproduction technologies in the country. California and New Jersey have instituted similar legislation in recent years and the BBA believes that Massachusetts should follow.

Elizabeth Roberts, member of the BBA’s Family Law Section Steering Committee and a family law attorney at Roberts & Sauer LLP, submitted testimony for the Joint Committee on the Judiciary at the public hearing on this bill in July and presented the issue to BBA leadership along with Section co-chairs David Friedman of Verrill Dana LLP, and Carlos Maycotte of Fitch Law Partners. As Elizabeth put it to the Legislature, “We would urge you to make this process less costly, time consuming and able to occur in a manner that offers dignity to LGBTQ families of the Commonwealth. A secondary benefit is that this legislation is in the interest of judicial economy, streamlining a process that was needlessly time consuming and that ignored the fact that these adoptive parents were intact families already”. The Family Law Section formally endorsed this legislation shortly after, and it has now been voted on and approved by the BBA Council.

We look forward to advocating for this important legislation that is long overdue.

-Lucia Caballero
Government Relations Assistant
Boston Bar Association

BBA Files Brief in Support of the Massachusetts IOLTA Committee

On January 21, the Boston Bar Association, Massachusetts Bar Association (MBA), and Real Estate Bar Association (REBA) filed a joint brief to the Supreme Judicial Court (SJC) in the case of In the Matter of Gregory M. Olchowski, which has to do with a dispute between the Massachusetts Interest On Lawyers’ Trust Accounts (IOLTA) Committee and the State Treasurer over access to unidentified funds in IOLTA accounts. The brief, co-drafted by Mary Ryan and Micah Miller of Nutter McClennen & Fish, Tom Carey of Hogan Lovells, and Francis Morrissey of Morrissey, Wilson & Zafiropoulos, sided with the IOLTA Committee, arguing that unidentified funds should be remitted  to the IOLTA Committee instead of the Treasurer.

Attorney Gregory Olchowski was temporarily suspended in early 2013 and funds from his two IOLTA accounts were deposited in a separate account in the name of his attorney. The intended recipients of the funds could not be identified. Since 1994, Bar Counsel’s practice has been to remit funds to the Committee, with the SJC’s approval, after conducting a thorough investigation (including reviewing attorney records) and determining that the owner of the funds cannot be identified. In October 2018, Bar Counsel filed a motion to remit the Olchowski funds to the IOLTA Committee. The Treasurer filed a motion to intervene and ultimately opposed Bar Counsel’s motion, asserting that the funds should escheat to the Treasurer.  The Committee filed a motion to intervene and to oppose the Treasurer’s motion. 

As the BBA/MBA/REBA brief notes, 13 other states have either statutes or court rules which send unidentified funds to that state’s IOLTA group or similar entity. The SJC posed the following questions for amici:

1. Do unidentified client funds on deposit in an IOLTA account fall within the statutory definition of “abandoned property” under G. L. c. 200A?
2. Does Mass. R. Prof. C. 1.15, or any other rule of this court, govern the disposition of such funds?
3. Are any constitutional issues raised by the parties’ proposed disposition(s) of the funds?

In April 2019, the IOLTA Committee formally requested that the BBA file an amicus brief in support of their argument in this case. The Amicus Committee reviewed the facts of this case and monitored the development of the brief.

As filed, the brief argues that the Abandoned Property Act was never intended to address unidentified IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985.  G.L. c. 200A has been amended at least five times since then to define when specific types of property are deemed abandoned, yet the Legislature has not chosen to bring IOLTA funds within that ambit: “Had the legislature intended to bring unidentified IOLTA funds under the APA, it could have done so by express amendment, as it did for other kinds of property. This history shows that the Legislature never intended the APA to apply to unidentified funds in an IOLTA account.”

Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences—“a critical aspect of the practice of law”—and jeopardizing the security of client information. This is because “[a]ttorney records concerning IOLTA accounts are necessarily intertwined with attorney-client confidences,” and the Treasurer’s Office would have broad discretion to review attorney records related to IOLTA accounts holding such funds. Yet, unlike the IOLTA Committee and the Board of Bar Overseers, that Office lacks clear protections against the disclosure of confidential information.

The brief also places the power to regulate unidentified IOLTA funds squarely within the SJC’s inherent authority to regulate the practice of law, and highlights “the beneficial effects that turning even modest sums of money over to the IOLTA Committee will have on access to justice for all.” This position is consistent with the BBA’s mission, and with its history: The BBA and MBA jointly petitioned the SJC to create the Massachusetts IOLTA program in 1985, and it has been funding programs on behalf of indigent residents of the Commonwealth since then.

The IOLTA Committee recruited two pro bono attorneys to represent it in oral argument, which will be held on February 11. Follow @MikeAvitzurBBA on Twitter for live updates of the hearing (which you can also watch through the Suffolk Law School feed)! A ruling is anticipated by June, and we’ll be sure to update you on it here.

-Michael Avitzur
Director of Government Relations & Public Affairs
Boston Bar Association

BBA Joins with MBA on Amicus Brief Supporting Right to Counsel in Civil Contempt Proceedings

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In doing so, the BBA joined with the Access to Justice Commission, which had made the same recommendation in 2007.

That BBA report—authored by former BBA President Mary Ryan of Nutter McLennen & Fish, and IOLTA Committee Director Jayne Tyrrell—noted that the question of whether a right to counsel should apply in such instances “invites litigation”, and now with that question squarely before the Supreme Judicial Court (SJC) in the case of DOR v. Grullon, we have joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

[I]ndigent litigants are forced to navigate the legal system without legal representation even in cases where basic human needs are at stake.

BBA Task Force Report, Gideon’s New Trumpet

Here, the defendant-appellant—a partially disabled, indigent veteran—was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he is now represented by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR).

The judge at the hearing took issue with a comment made by the petitioner, which she interpreted to mean that the petitioner was not taking his responsibility seriously. The judge found the petitioner in contempt of court and sentenced him to ten days in jail. Also at issue is whether the sentence was intended as punishment or to compel the petitioner to comply with the standing support order, and whether the court made the proper findings that the petitioner—who was homeless and engaged in a vocational rehabilitation program to help find work compatible with his disability—had the ability to pay the support order or the so-called “purge amount,” i.e., the amount that must be paid to secure the petitioner’s release from incarceration.

Because he could not afford the purge amount of $500, Grullon served the full ten days in jail, during which time he missed vocational training, further setting back his ability to return to work. (According to VLS, research demonstrates that incarceration is rarely effective in such circumstances and is counterproductive with regard to both future compliance and fatherhood engagement.)

In July, the SJC, without explanation, granted direct appellate review of the lower court’s decision. Our Amicus Committee—chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—recommended that the BBA join an amicus brief in support of Grullon’s argument, and the Council voted to join the MBA’s brief, as drafted by Thomas J. Carey, Jr., of Hogan Lovells. The brief was also joined by Boston College Law School professor Mark Spiegel, and the ACLU of Massachusetts filed a separate letter expressing to the SJC their endorsement of the brief. (The Massachusetts Law Reform Institute, the Committee for Public Counsel Services, and the Jewish War Veterans of the USA each weighed in as well in support of a right to counsel in such cases.)

In a 2011 case, Turner v. Rogers, the US Supreme Court addressed this issue, reversing a state-court decision in which an unrepresented noncustodial parent was incarcerated for non-payment of child support. That Court concluded that the incarcerated parent’s due-process rights had been violated, but stopped short of recognizing that a right to counsel is “automatically” required in all civil contempt hearings. Among other concerns, the Court noted that asymmetry of representation between purely private parties might skew the playing field, and expressed a belief that procedural protections other than a per se right to counsel would be adequate to satisfy federal due process standards in most private cases.

Poor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.

MBA/BBA Amicus Brief in DOR v. Grullon

The MBA/BBA brief in Grullon argues that Mr. Grullon did not benefit from the specific alternate safeguards that might obviate the need for counsel under Turner, and that systemic flaws exist in the processing of civil contempt matters in the Probate and Family Court. “[W]hen government attorneys advocate imprisonment of unrepresented indigent defendants for debt,” the brief states, “the risk of error is unacceptable, and the value of court-appointed defense counsel is indisputable.”

It goes on to say that while the SJC may wish to take further remedial steps, in the exercise of its supervisory powers over the administration of justice—including promulgating clearer court forms, creating universal standards, requiring written findings, and tasking a working group to evaluate current practices and make recommendations—“such steps should be additional to and not in substitution for a constitutional right to court-appointed counsel for indigent defendants faced with government lawyers and a realistic risk of imprisonment”.

As argued in Gideon’s New Trumpet, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

The BBA has long advocated for a broader right to counsel in civil cases, including…

  • through the courts
    • See, e.g., amicus briefs the BBA joined in related 2014 and 2015 cases that resulted in such a right where a child may be taken from a parent/guardian.
  • and through legislation.
    • See, most recently, our support for the coalition seeking to enact a right to counsel for indigent tenants and landlords in eviction cases.

The SJC’s oral arguments in Grullon will be held this Thursday, January 9, and can be viewed, through the Suffolk Law School web-site, either live (starting at 9am) or in archived form. Veterans’ Legal Services will be representing the Appellant, and you can read their brief here. A decision is expected by May.