Monthly Archives: May 2020

Q&A with BBA Crisis Response Working Group Chair, Martin Murphy, BBA President-Elect and Partner at Foley Hoag

BBA President Christine Netski appointed a COVID-19 Crisis Response Working Group which has been working to identify and monitor the impact of emerging issues during the COVID-19 crisis, and to recommend changes in or clarifications regarding practice. We caught up with Working Group Chair and BBA President-Elect, Marty Murphy. Murphy discusses some of the emerging issues the group is tackling, ways the legal community has met these extraordinary challenges with collective persistence, and his predictions for how these changes will affect the profession long term.

  1. What are some of the major themes that the Working Group has identified over the last couple of months?

We’ve been working hard to identify how the BBA can best address the unprecedented range of issues the bar and the public are now facing. We’ve been particularly interested in addressing issues that impact individuals who have been hit the hardest, and have even in ordinary times a hard time making their own voices heard. So we have, for example, publicly supported the moratorium on evictions and foreclosures the Legislature enacted and the Governor signed into law, and we also filed a an amicus letter in the SJC supporting expedited, individualized, consideration of release of prisoners in Houses of Corrections and state prisons.  We’ve also taken on a number of issues that impact day-to-day practice in many areas—like the remote notarization of documents (also, fortunately, approved by the Legislature and the Governor.)

  1. What responsibility does the BBA have to speak out on these issues?

Ensuring access to justice for all citizens is at the heart of the BBA’s mission. The challenges faced by individuals facing extraordinary economic hardship and having to face the pandemic while in custody are precisely the kind of issues where the expertise of the BBA’s lawyers can play an important role in shaping the public debate.

  1. What have you learned about the current state of legal practice and the court system through your work with this group?

I have been incredibly impressed by the dedication of lawyers and judges tackling some extraordinarily challenging issues without any playbook. The commitment of the lawyers who brought challenges in federal and state court seeking the release of prisoners and ICE detainees, and the Judges who heard those cases so expeditiously is an extraordinary blessing that we should all be grateful for. The SJC’s first-of-a-kind marathon telephone hearing on the CPCS/MACDL petition was a testament to the quality of advocacy—on all sides–and judging we are fortunate to have here. And United States District Court William G. Young’s willingness, day-after-day, to wade into the personal circumstances of dozens of detainees to determine whether each should be released demonstrates the kind of persistence that is a hallmark of our judiciary.

In ordinary times, this is a great place to practice law. These unprecedented circumstances have tested the mettle of our lawyers and judges, and none have been found wanting.  

  1. Have any changes emerged, whether positive or negative, that you think will last beyond this pandemic?

I think the jury is out on that one—though I am pretty sure that it’ll be some time before offering to shake hands will be viewed as anything other than a declaration of hostilities. It’s hard to know how much of our new virtual reality will stick, and how much will pass by the boards. But I do believe that, in the future, we will all spend more time planning for potential calamities—pandemics, or other threats, like cybersecurity, that could tax our ability to carry on our day to day lives.

And I hope we will all embrace and support new lawyers in this unique time. The pandemic has thrown a monkey wrench into the ordinary rhythm of the bar exam bar, bar admission, and new crop of lawyers we are always excited to bring aboard each fall.  They will need our help.

Emergency Remote Notarization Law Enacted

We have been keeping you updated here on the progress of legislation to authorize, on a temporary basis, the practice of remote notarization and witnessing of documents, which the BBA endorsed.

We’re pleased to report that Governor Charlie Baker signed the bill into law last week. It took effect immediately and will apply until three days after the Governor’s state of emergency is ultimately lifted.

This issue was urgent, because, as we stated in our letter to the Legislature:

We have heard from BBA members across a variety of practice areas—including real estate, family law, trusts and estates, and bankruptcy—that their work is being hindered, and clients’ urgent needs left unaddressed, by the requirement that notarization and witnessing be conducted in person. It is especially unfortunate that, at a time when health concerns, if not actual illness, have led many to focus on their estate planning, quarantine orders and self-isolation are complicating and often preventing the execution of the necessary legal documents to achieve their goals.

The final legislation represented a compromise among a broad coalition representing various practice areas and other stakeholders, including banks and insurance companies. The new law was further tweaked by lawmakers, and while not all parties got everything they wanted, the consensus was that passage in some form took precedence during this crisis over any particular provision.

We were relieved that the Legislature and Governor were able to move this bill through the current limited process, in spite of the hardships they themselves face and the many other pressing priorities before them. Here are some of the highlights of the law:

  • The act permits execution, notarization, filing, or recording of virtually notarized legal documents such as wills, trusts, nominations of guardians or conservators, caregiver authorization affidavits, durable powers of attorney, health-care proxies, and HIPAA documents, as well as mortgages and other documents transferring title to real estate.
  • Only a notary who is also a Massachusetts attorney, or a paralegal under a Massachusetts attorney’s direct supervision, can notarize such documents remotely or virtually. The Act clearly excludes non-attorney notaries from remotely notarizing wills, trusts, personal and asset protection documents and real estate transfer and mortgage documents.
  • Via videoconference, documents may be executed and notarized remotely if:
    • all parties are physically located in Massachusetts during the signing;
    • the signers and all others in the room with the signer consent to the recording;
    • the signer provides satisfactory identification by video, with copies subsequently sent to the notary;
      • If the documents relate to a real estate transaction and the notary does not know the signer, a second form of identification containing the signer’s photograph or signature or issued by a governmental agency, is required to comply with the Act.
      • Copies of the signer’s identification must be retained by the notary for ten years from date of execution.
    • all others in the room are seen on video by the notary and provide satisfactory identification by video and disclose their relationship to the signer;
    • the notary observes the actual execution of the documents by video;
    • the executed documents are delivered to the notary, as directed, for notary signature, stamp, and certification;
    • the notary completes an affidavit indicating receipt of the signer’s identification documents, visual inspection of the credentials during the video conferences, consent to record the video conferences, confirmation that signer was physically located in Massachusetts and noting all of the individuals present in the room with the signer and their relationship to the signer.
  • If any of the executed documents are to be recorded in connection with real-estate transaction (deed, mortgage, easement etc.) a second verification video conference is required.
  • Notaries are required to keep copies of their certifications, affidavits and video and audio recordings of the remote sessions for ten years.

You can read more, and view sample forms, here.

We thank all the BBA sections that brought this issue to our attention, the members who helped support our advocacy by contacting their legislators to explain its importance to the practice of law, and the coalition members who led this effort, including the Real Estate Bar Association of Massachusetts and the Massachusetts chapter of the National Academy of Elder Law Attorneys.

—Michael Avitzur
Government Relations Director
Boston Bar Association