Posts Categorized: Annual Meeting

BBA Government Relations Year in Review: Part II

Hopefully you enjoyed part I of our Year in Review, discussing our efforts on amicus briefs and criminal justice reforms.  Part II will discuss our comments on proposed rules changes, efforts at increasing diversity and inclusion in the legal profession, civil legal aid funding advocacy, and legislative victory!  2016 was a great and productive year and we’re looking forward to doing even more in 2017!

BBA Rules Comments

One component of the BBA’s policy function that sometimes goes overlooked is the work of our Sections in reviewing and commenting on proposed amendments to rule changes.  This is a great benefit to our members as it empowers them to be involved in making positive changes that directly impact their practice areas.  This is especially true because the courts do a great job of listening to the concerns of practitioners and frequently make changes based on our comments.  Here are links to some of our coverage:

Diversity, Civil Legal Aid, Legislation and more!

Given space and time constraints (we’ve got to get going on all our 2017 work!!), I’m going to lump together everything else including our posts on the courts, diversity and inclusion, civil legal aid funding, and more.  Here are a few highlights:

  • December 15: ‘Tis the Season to Focus on Civil Legal Aid – Advocating for civil legal aid funding is one of the BBA’s main priorities every year. We work on the issue year round, but the campaign really starts moving in earnest with the kickoff event, Walk to the Hill, held this year on January 26.  The event brings together hundreds of lawyers who hear speeches from bar leaders including our President and the Chief Justice of the SJC and then encourages them to spread throughout the building to visit their elected officials and spread the word about the importance of legal aid funding.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they provided limited advice, information, and training to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope to see you on January 26 at the Walk and that you will stay engaged throughout the budget cycle, which stretches to the spring.  For more on that, check out our latest podcast!  We will keep you updated here with all the latest developments and may ask that you reach out to your elected officials at key times to again voice your support.  Last year we shared six posts  throughout the budget, updating you on all of our priorities, including legal aid, the Trial Court, and statewide expansion of the Housing Court.  Our final budget post from August 4 shows where everything wrapped up.  For anyone interested in the process, check out our older budget posts from April 14, April 21, May 5, May 19, and June 30 as well.

  • August 9: BBA Clarifies Zoning Law and Promotes Real Estate Development – More traditionally, the BBA is known for its work on legislation. We support a number of bills of interest to our practice-specific Sections as well as the organization as a whole.  On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015.  We look forward to more legislative successes this session!

As you can see it’s been quite a year.  This doesn’t even touch on dozens of other posts on things we were or are involved with.  We hope you’ll keep reading through the new year for all the latest news from the BBA’s Government Relations team and give us a follow on twitter for even more late breaking news!

I want to end on a personal note to say that this will be my final Issue Spot post.  I have drafted hundreds over the last 3.5 years at the BBA and loved being able to be part of all the incredible work of the Association and its members.  I am excited to be moving to a new position, but will certainly miss the BBA and hope to stay involved.  Thank you for reading!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.  The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Partners in Justice: The Bar and the State of the Courts Address

SJC Chief Justice Ralph Gants was a model of efficiency last Thursday, managing to attend our Annual Meeting Luncheon where he saw our Amicus Committee honored for 20 years of outstanding advocacy and heard a keynote address from his friend and former law school classmate Professor David Wilkins shortly before giving his annual State of the Judiciary Address in the Great Hall of the Adams Courthouse.  His speech created some headlines (see e.g. Boston Globe, CommonWealth, WBUR, Mass Lawyers Weekly) with an announcement that the Courts would be launching a study on racial disparities in imprisonment statistics.  However, that was only a small fraction of the substance covered at the event, which also featured speeches by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence.  Between the three addresses, the speakers discussed how the Courts have developed and changed in recent years and provided a road map for where they are headed.  We are excited for the future prospects in store as these dynamic leaders have made tremendous strides in recent years to improve legal practice and access to justice.

Reflecting on the Last Four Years

Court Administrator Spence, giving his last address at this event before his five-year term ends in April, spoke about the effectiveness of his collaboration with Chief Justice Carey.  The Trial Court has indeed made great strides under their leadership including:

  1. Installing MassCourts in every courthouse to serve as a unified case management system, the first step to a “fully automated digital operation,” which the courts are aiming to complete by the end of 2019.
  2. Adopting evidence-based practices and risk assessment tools in the Probation Department.
  3. Combatting the opioid crisis through drug courts whose graduates are nearly two times less likely to recidivate than defendants in drug-related cases in other courts.
  4. Opening six court service centers to assist pro se litigants.
  5. Improving the capacity and capabilities of the Trial Court’s Facilities Management and Security Departments to assure safety and security in courthouses that continue to serve the public despite a severe shortage of capital investment.
  6. Implementing professional hiring and review procedures to assure highly qualified and professional court staffs.

Spence acknowledged the culture that paved the way for these and other changes, describing the 6,300 court employees as a “community that is committed to working in partnership with each other to improve the quality of justice.”  He described the Court’s commitment to constant improvement, driven by data gathering and analysis, and the increasing distribution of leadership points within what used to be a purely hierarchical structure.

We applaud Administrator Spence for his remarkable devotion to these causes and the incredible strides he has helped the Trial Court take in a short period of time.  We look forward to welcoming his replacement in the spring who we hope will meet the incredible expectations Spence has established for the position.

Looking to the Future

Chief Justice Carey spoke about her hopes and goals for the coming years.  Foremost, the Courts will focus on four “umbrella themes or principles:”

  • Continuous improvement
  • Racial and ethnic disparities
  • Public trust and confidence, and
  • The user experience

She explained that the Trial Court will be looking at its policies and practices to examine how decisions are made in cases and court administration in order to improve the administration of justice and ensure public safety.  This includes a number of initiatives aimed at increasing access to justice such as:

  • Expanding Court Service Centers which help pro se individuals navigate the court system.
  • Promoting the increased use of limited assistance representation, whereby clients can hire attorneys to assist them with a select part of their case.
  • Continuing to develop the language access plan to assure that everyone can read and understand important forms and documents.
  • Examining court fines and fees and the impact they have on certain populations.
  • Supporting the work of Specialty Courts which help defendants address the issues underlying criminal behavior in order to reduce recidivism.

The Chief Justice is also thinking about the court user experience, implementing trainings on domestic violence for judges, clerks, and court staff and the “Signature Counter Experience” program for all clerks’ offices which aims to instill best services practices for interactions with litigants, lawyers, law enforcement and other court house guests.

She closed by applauding the bar for its continued support and collaboration.  We look forward to continuing these efforts and look forward to all of the positive changes she has in store for the Trial Court.

The SJC Chief Justice Weigh-In

SJC Chief Justice Ralph Gants combined the two views, looking at the Court system today, where it’s been, and where he hopes it will go.  He began by acknowledging recent major changes as three justices were replaced with new appointees.

Next, he followed-up on a major issue from his 2014 address, the creation of expanded options aimed at streamlining civil litigation across court departments.  In the last year, the Superior, District, Boston Municipal, Probate and Family, and Land Courts all assembled working groups that proposed rules and practice changes that have the potential to save lawyer’s time and client’s money with more efficient practice.  The BBA played an active role in many of these, offering comments (read our recent blog posts on our comments to the Land Court and Superior Court).

Chief Justice Gants noted that the SJC just approved the final Superior Court rule changes that would allow parties to request an early nonbinding judicial assessment of a case, a case management conference, the immediate scheduling of a trial date, earlier pretrial deadlines, limits on discovery, and other opportunities to reduce the cost of litigation and obtain a quicker resolution.  It is now up to you all to take advantage of these changes.  In conversations at our Steering Committee meetings, we commonly heard that though people might not have articulable concerns about certain of these measures, they were skeptical that lawyers would use them (or that their clients would stand for them).  We hope you will give them a second look and try to incorporate them into your practice.

The Chief then turned his attention to access to justice issues.  As mentioned above, he made his biggest media splash by unveiling a plan to have Harvard Law School Dean and member of the BBA Statewide Task Force Expand Civil Legal Aid in Massachusetts, Martha Minow, lead a team to lead an independent research team to explore reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.  While we are certainly excited at the findings of this report, the Chief Justice also covered a host of other access to justice issue of similar import.  He spoke about how the Courts will continue to examine the fines and fees associated with the justice system to make sure that they are not overburdening those who can least afford it.  The Courts will also attempt to continue expanding Court Service Centers to assist pro se litigants and Housing Court Statewide (with our help) to assure that the entire state can access this valuable legal resource.

As always, we look forward to continuing to work with the courts on these and other initiatives, and in particular, we share the Chief Justices’ enthusiasm to review the forthcoming criminal justice reform proposals borne out of the Council of State Governments’ comprehensive study of Massachusetts criminal justice policies.  Quite simply, we will strive to live up to the title he bestowed to the entire bar, to be the Courts’ “partner in the pursuit of justice.”

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Trios: Reflecting on the Legal Profession with Prof. David Wilkins at Annual Meeting

david-wilkins

We were thrilled to welcome Professor David Wilkins, Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School, to provide the keynote speech at Thursday’s Annual Meeting, one of the largest bench-bar events in Massachusetts.  Wilkins is well known for his research on the impact of globalization of the legal market, diversity in the profession and the various career paths of attorneys.  His speech was engaging, and at times funny, depressing, and hopeful.  He demonstrated a remarkable understanding of the trajectory of the legal profession and laid out a number of issues (often in threes) requiring the attention of attorneys, law firms, legal educators, and the public at large.

Where We’ve Been

Wilkins began with a look back at recent developments in the law.  Since 2008, the outlook has been less than optimistic, with scholars talking about “the death of Big Law” and “the end of lawyers.”  However, Wilkins encouraged attendees to expand their scope and think not just about attorneys in private practice but also the entire legal system, including underfunded and understaffed courts, state and federal agencies facing budget cuts, and legal services that are far from being able to meet the needs of their constituencies.  These shortcomings in legal jobs are accompanied by myriad systemic challenges, including mass incarceration, struggles with individual freedoms and rights, and questions about the political process.  In addition, law schools are facing lower enrollment and lower job placement rates.

So the question, Wilkins explained is, are these problems part of a paradigm shift or simply a temporary correction that will soon re-adjust?  And the answer he exclaimed with comic timing is, “Who knows?!”  It’s too early to tell for sure, but it seems likely that a lot of these changes are here to stay and may have been coming more gradually anyway, but were simply pushed into high gear by the recent financial crisis.

Where We Are

These changes are not unique to the legal profession, either.  In fact, they have proliferated in nearly all professions and daily life.  Wilkins described three major developments:

  1. Globalization of the economy and geographical shifts, with increasing focus on emerging markets in developing countries.
  2. A rise in the speed and sophistication of information technology.
  3. The blurring together of traditional knowledge, whereby things that used to be considered separate and distinct are now inextricably linked. He highlighted a few examples, such as public and private spheres, global and local impacts, and more relevantly, law and business.

The law is a lagging, not a leading indicator of change, which is unsurprising given its focus on history and precedent.  Unfortunately, that can also make it slow to recognize change, and even slower to react to it.

Trends

Wilkins identified three areas where the legal profession is currently undergoing changes.

  1. Practice is shifting from mostly solo and small firm practice to large law firms. At the same time, the size of public legal offices such as attorneys general is growing, as is the number of attorneys employed by the courts.  In short, the law is becoming an “institutionalized profession.”  However, the ethical rules and other aspects of practice are still geared towards the historic practice settings and styles.
  2. There is increasing diversity. Though diversity may still lag far behind where we’d like it to be, the legal profession is far more diverse now than it has ever been.  In particular, the number of women in the law and in law school has greatly increased, but legal practice and the typical career trajectory are still laid out best for men who have a homemaker wife.  Furthermore, global diversity continues to increase, as well as the need for interaction with non-lawyers.
  3. Competition is intense, not only amongst lawyers and firms, but also in the pipeline of smart students to become future lawyers. Wilkins discussed the need for retaining the core integrity of the profession in order to continue to attract talented people who want challenging and rewarding service careers, while also considering changes to modernize practice and compete with other fields attracting top students.  He highlighted two main points to consider:
    1. Law is a human capital profession, done by people for people, even if those people work for huge corporations, so lawyers need to think about how they recruit, train, develop, and relate to people.
    2. The need for lawyers today is greater than ever because of globalization and the increasing complexity of the world. However, this also requires lawyers to understand the intersection of law and other issues.

Where We’re Going

Wilkins closed with three issues for consideration going forward:

  1. Access to Justice – There are not enough lawyers to serve all of those in need, largely because the expense of training and developing lawyers prices many out of being able to afford legal services.  Therefore, we need to be open to new ways to more efficiently develop legal skills and provide legal services.  This includes increasing the use of technology, expanding the role for paraprofessionals, and investing in more resources for self-help.
  2. Access to the Legal Profession – We need to increase diversity and strive for true inclusion by shifting our perception that individuals need to change to fit within existing institutions to changing the institutions themselves and the assumptions at their core that inhibit maximization of talent.
  3. Access to the Rule of Law – Lawyers need to move beyond the law itself. They need to reach across boundaries, not only within the legal profession, but also beyond to legal education and non-lawyers.  Wilkins provided another trio – the three roles lawyers need to play:
    1. Astute technicians – Lawyers already do a good job of this – being competent in the law and understanding complex issues.
    2. Wise Counsel – This one is often more challenging, requiring lawyers to combine principles of law and morality.
    3. Leaders – This one also presents challenges, whereby lawyers have to go beyond being merely advisors but to also be the agents of change they want to see.

Wilkins ended with a plea for lawyers to work together.  The only way we can preserve the core principles of the legal profession and excellence in practice, while at the same time advancing to become more diverse and provide more service to broader constituencies is by coming together to effectuate systemic change.  We at the BBA hope to be at the forefront of this movement and hope lawyers will continue coming together at 16 Beacon to discuss and work on these essential issues and we thank Professor Wilkins for leading this discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association