Posts Categorized: Civil Legal Aid

BBA Council Hears from the Governor’s Chief Legal Counsel

Last week, we were happy to welcome back Lon Povich, Governor Charlie Baker’s Chief Legal Counsel and former member of the BBA Council and the Statewide Task Force to Expand Civil Legal Aid. On his annual visit to Council he provided an update on three key areas of interest to members of the Bar:  1) Criminal Justice Reform, 2) the Budget, and 3) the Judicial Nominating Process.

Criminal Justice Reform

Lon Povich first spoke on criminal justice reform, highlighting the recent report released by the Council of State Governments (CSG).  We’ve been following the report, and related legislation filed in February by the Governor, closely. Overall, the report and bill focus on reducing recidivism in the Commonwealth, which is currently at about 40%. The Governor’s Proposed Budget allocated $3.5 million to fund the costs of implementing the recommendations in the report for the first year.

With the reducing recidivism goal, the proposed reforms include increasing programming for incarcerated individuals, providing more training for corrections officers, expanding the availability of behavioral health services, increasing credit for “good time served”, allowing good time to apply to some mandatory minimum sentences, strengthening the coordination between prisons and the Parole Board, and improving data collection. Overall, Povich characterized the bill as a start to criminal justice reform, but he thought it would attack recidivism head on. One member of Council expressed concern that if the legislation coming from the CSG report is rushed through the legislative process, momentum will be lost for more sweeping reforms, including front-end reforms that many stakeholders believe important, like those related to bail, collateral consequences, and mandatory minimums. In response, Povich said he did not see the CSG bill as a barrier, but instead a starting point. The narrow nature of the current proposed legislation reflected what it took to gain consensus among the sponsors of the CSG project, the Governor, the Speaker of the House, the Senate President and Chief Justice Gants, so he was worried if too many additional proposals were attached, it might not pass at all.

In addition to the above, Povich mentioned four other pieces of criminal justice legislation coming from the Governor’s Office this session. One relates to “fine time,” which is the practice of incarcerating individuals when they are unable to pay court fines and fees. The new bill would provide other options for defendants that cannot afford a fine and would provide counsel for indigent defendants facing fine time. The next bill would increase the penalty for assault and battery on police officers. The third bill would reform the current laws on the sharing of sexually explicit material, including “sexting” and “revenge porn.” The final piece of legislation he mentioned would update the wiretap statute, which was drafted in 1965, to account for modern technology and reform the types of crimes it covers. (Here at the BBA, we’ve also called for updates to the current wiretap laws.)

Budget Update

Next, Povich discussed the state budget, first noting that money is very tight right now, especially given the rising MassHealth costs. He spoke on funding for the Trial Court first, noting the 1% increase provided for in the Governor’s proposed budget as well as the inclusion of $11.7 million in the more recent House Ways and Means proposed budget to cover the pay raise legislation enacted since the Governor’s budget was released. He also mentioned the additional $1.5 million provided for the Massachusetts Legal Assistance Corporation (MLAC) in the House Ways and Means proposal. Finally, Povich noted that while the Governor’s budget allocated $1 million for expanding the jurisdiction of the Housing Court to the whole state, the House Ways and Means budget did not include any funding for this expansion. To wrap up his budget update, he discussed the rest of the budget process, which we’ve also covered in a podcast, and highlighted the significant impact BBA advocacy has on funding for the judiciary and civil legal aid.

To learn more about the funding of the Judiciary, civil legal aid, and statewide expansion of the Housing Court, check out our numerous updates on the budget!

Court Nominating Process

Finally, Lon Povich discussed court nominations under the Baker Administration, first noting that 53 judges had been appointed since the Governor took office. Around 33 vacancies remain in other courts, but nine are currently being scheduled for Governor’s Council hearings and six letters of nomination are about to be sent, so there are 18 positions for which nominees have not yet been identified. He called on the Council and the private bar to help in filling these vacancies by encouraging qualified attorneys to apply for these positions. He also highlighted that of the 53 new judges appointed during Governor Baker’s time in office, around 50% are women and around 20% are considered diverse, meaning they are members of racial or ethnic minority groups or members of the LGBTQ community.

In a follow-up question by a member of Council, Povich addressed whether the Governor’s Office would consider making the process to become a judge less arduous, in order to encourage more applications. Interestingly, when Povich previously addressed Council, it was on the heels of an Executive Order reforming the nominating process, which we outline in full here.  To summarize, the applications for judicial and clerk-magistrate positions are first reviewed by the Judicial Nominating Commission (JNC), a 21-member, statewide, non-partisan, non-compensated body currently chaired by former BBA president Paul Dacier and vice-chaired by former BBA Council member Roberto Braceras. Then, the Commissioner’s interview approved candidates and at least ½ of the Commissioners casting a vote amongst a quorum must agree to continue the application of the potential nominee. Following a period of thorough research and evaluation, a two-thirds vote is required for the JNC to forward an applicant’s name to the Governor’s Office to be considered for nomination. Typically, the JNC forwards between 3 and 6 potential nominees to the Governor’s Chief Legal Counsel, who then seeks input from the Joint Bar Committee (JBC). The JBC determines whether a candidate is well qualified, qualified, not qualified or there is insufficient information to evaluate the candidate. The JBC communicates its vote to the Governor’s office, and the Governor can nominate the applicant, deny the application, seek further commendation from the JNC, or re-open the application process.

In response to the question on whether the process could be simplified in order to encourage more applications, Povich responded by saying that he served on the JNC in both the Romney and Patrick administration who followed the same JNC process and that he believes the current three-step process is effective in ensuring that only top-quality candidates receive judgeships. Ultimately, he acknowledged the “triathlon” (JNC, Governor’s Office and Governor’s Council) that applicants must go through, but maintained that the work, by the applicants, the JNC, the JBC, and the Governor’s Office is all worth it to get the most qualified nominees.

With his earlier call in mind, if you’ve considered pursuing judgeship, or know someone who would make a great judge, now is the time to apply!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Budget Update: House Ways and Means Proposes FY18 Budget

As we’ve reported, BBA advocacy on the Budget for FY18 is now in full gear. This means we’ve been keeping a close watch on all budget-related happenings, and on Monday the House Ways and Means Committee released their $40.3 billion proposed budget for Fiscal Year 2018 (FY18), which begins on July 1.

With this release, members of the House are gearing up for a busy few weeks, as they will file and debate proposed amendments before the final House budget is passed. Then, it’ll be the Senate’s turn to propose, debate, and pass their own version of the budget. After that, a conference committee will attempt to reconcile the differences in the two budgets, and once approved by both chambers of the Legislature, the Governor has ten days to review and sign it. The Governor cannot add additional items but can veto or reduce particular line-items or veto the entire budget. The House and Senate can then, with a two-thirds roll-call vote in each chamber, vote to override any vetoes.

The House Ways and Means Committee proposed budget contains some significant departures from the Governor’s budget, H.1, in the areas that we’ve highlighted as our state funding priorities, including:

MLAC

As the largest provider of funds for state legal-services agencies, the Massachusetts Legal Assistance Corporation (MLAC) is a crucial piece of providing access to justice for Massachusetts residents. The Governor’s proposed budget called for only a 1% increase in the MLAC line-item, leaving the proposed appropriation at $18.18 million. This $180,000 increase is far below the BBA-supported ask of a $5 million increase that would provide for a $23 million MLAC line-item.

The House Ways and Means Budget recommends an increase of $1.5 million for the MLAC line-item to a total of $19.5 million. This moves MLAC a significant step closer to the $5 million request and will allow civil legal aid programs to take on more than 2,000 new cases.

In the words of Executive Director Lonnie Powers, MLAC is “incredibly pleased that the House Ways and Means Committee recognizes the role that civil legal aid funding plays in promoting equal access to justice for low-income residents of the Commonwealth.” Notably, House Ways and Means Committee Chairperson Brian Dempsey specifically mentioned the inclusion of MLAC in his letter explaining the budget, highlighting it as part of the House’s own commitment “to protecting and providing for [the] Commonwealth’s most vulnerable residents.”

We join MLAC in expressing gratitude that the House Ways and Means Committee continues to recognize and value the importance of civil legal aid. As BBA President-Elect Mark Smith, of Laredo & Smith, was able to relay at a legislative briefing last week, and as we have expressed consistently over the past years, civil legal aid is not only necessary to ensure access to justice, it is also a smart investment that offers many economic benefits to the state.

Overall, this is undoubtedly good news for civil legal aid in Massachusetts, but given the shaky position of the federal budget and President Trump’s proposal to zero-out funding for the main federal funder of civil legal aid, the need for more state funding for MLAC is still critical. An increase of $1.5 million is a good start, but even with that, the state will still be forced to turn away the majority of eligible people who need legal assistance.

Fortunately, Representative Ruth Balser filed an amendment (#822) on Thursday to increase the House Ways and Means Committee recommendation by an additional $1.5 million, bringing the total proposed appropriation to $21 million. As the house budget debates begin, it is crucial that your representatives know how important civil legal aid is to you.

You can contact them now, using this easy tool from our partners at the Equal Justice Coalition (EJC), to ask them to co-sponsor the amendment. If you want to reach out in person or on the phone, you can find your representative here, get guidance from these talking points and resources, and listen to the BBA Issue Spot Podcast with chair of the EJC Louis Tompros for a primer on how to talk to your legislator (especially about civil legal aid).

Trial Court

Adequate funding of the Trial Court, another BBA priority, is necessary to ensure the continued efficient and accessible functioning of our judicial system. The Governor’s proposed budget recommended a 1% increase for the Trial Court, for a total appropriation of $646.8 million. Mostly because of an $11.7 million judicial pay increase that passed after the Governor released his budget in January, this now falls below the Trial Court’s revised funding request of $661,368,224 for FY18.

In more good news, the House Ways and Means Committee recommendation specifically provided for these pay raises in full, as the line-item related the payroll costs of the justices in the seven departments of the Trial Court (0330-0101) moved from $58.5 million in the Governor’s recommendation to $70.3 million. By including this increase, the Committee will allow the Trial Court to continue the gains it has made in recent years on working smarter and getting more done with less money and less staff. Ultimately, this will help to ensure that the Trial Court remains effective and accessible for all Massachusetts residents.

Despite this good news, there was one significant Trial Court line-item missing entirely from the House Ways and Means recommendation, which brings us to…

Statewide Expansion of the Housing Court

For the past few years, we’ve been discussing the reasons why statewide expansion of the Housing Court makes sense. Currently, about one-third of the state lacks access to Housing Court and the benefits that come along with it, including the judges’ expertise in all housing matters, the availability of Housing Specialists who can facilitate settlements and help parties avoid expensive litigation costs, and programs like Lawyer for the Day, which assist pro-se litigants and as a result preserve judicial resources and ensure the efficient operation of the Court.

In an important step, the Governor’s budget recommended $1 million for the expansion. After the release of the Governor’s budget Representative Chris Walsh sent a letter, signed onto by 42 other Representatives, to the House Ways and Means Committee, urging them to include the full $1.2 million needed for successful initial expansion in their FY18 budget proposal. Unfortunately, the Committee removed the Housing Court Expansion line-item entirely.

However, the Housing Court Expansion line-item can still be included in the Senate budget, so now is the time to let your Senator know about the importance of allocating $1.2 million for this expansion. Additionally, two bills, one in the House and one in the Senate, have  been filed to advance housing court expansion, so you can urge your legislators to support this legislation to ensure that nearly one-third of the state is no longer excluded from the benefits of the Housing Court. Make sure to check out these resources and tips in our how-to-talk-to-your-legislator podcast!

As outlined above, there is still a ways to go in the budget process, which means there is plenty of time left for the BBA, and all of you as individuals, to advocate for adequate funding to ensure that Massachusetts is able to provide access to justice for all its residents. Keep watching this space for more news on budget developments and how you can get involved!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

BBA Budget Advocacy for FY2018

With the House Ways and Means Committee set to release their budget recommendation around April 12, the BBA is ramping up our own budget advocacy, calling for adequate funding for the Massachusetts Legal Assistance Corporation (MLAC) and the Trial Court, including statewide expansion of the Housing Court, and help for the Committee for Public Counsel Services (CPCS) in meeting their constitutional mandate to provide legal representation to the indigent. This week, we’re sending a letter to the Chair of the House Ways and Means Committee, Brian Dempsey, explaining why adequate funding in these areas is necessary.

Below, we offer an update on our budget priorities and share how you can get involved:

MLAC

Funding for MLAC and civil legal aid is as crucial as ever because legal aid directly touches so many of the biggest social issues impacting residents of the Commonwealth today, including homelessness and emergency shelter, immigration, domestic violence, and the opioid crisis. MLAC projections reveal that in 2017, MLAC-funded legal aid programs will receive over 89,500 requests for legal services. And, as indicated by the findings of the Investing in Justice Report by the BBA Statewide Task Force to Expand Civil Legal Aid, providers will be forced to turn away nearly two-thirds of those requests from qualified applicants as a result of a lack of resources.

These projections, of course, do not take into account the recent threats to federal civil legal aid funding. President Trump’s first proposed federal budget calls for the complete elimination of the Legal Services Corporation (LSC) and its $385 million in federal appropriations for civil legal aid. At the state level, this would mean MLAC would lose more than $5 million in federal funding and nearly 26,000 low-income Massachusetts residents would be left without legal assistance. Plus another $4 – $5 million in federal funding for civil legal aid would be lost by other programs, making the total civil legal aid funding lost in Massachusetts close to $10 million. The projected demand of 89,500 cases would likely rise significantly as well if that federal budget were enacted, as other social support services are likewise at risk of losing federal funding.

(You can learn about the federal budget and budget advocacy at the federal level by listening to this Federal Budget Process 101 podcast, and our earlier podcast on the state budget process focused on civil legal aid in particular.)

As we’ve reported many times before, the Investing in Justice Report also found that civil legal aid is a smart investment as it saves the state money on “back-end” costs such as emergency shelter, foster care, and health care. In fact, according to MLAC’s most recent report on the economic benefits of legal aid, legal assistance for low-income residents resulted in over $49 million of total income and savings for the Commonwealth in FY16 alone. Specifically, the report shows that legal aid led to $12.1 million in cost savings on social services for the state, $15.9 million in federal revenue entering the Commonwealth, and $21.2 million in benefits for residents.

The BBA supports MLAC’s ask for a $5 million increase in funding, for a total of $23 million in the FY18 budget, which would allow MLAC-funded civil legal aid programs to open at least 4,000 new cases, assisting an estimated 10,300 additional low-income clients and their family members. Be sure to check out MLAC’s helpful issue-specific breakdowns on the importance of legal aid in Housing, Employment, Immigration and Domestic Violence cases. We hope that you will join the BBA in supporting civil legal aid by reaching out to your State Senator and Representative to ask them to support MLAC’s budget request. If you don’t know your legislator, look them up here, and if you’re not sure what to say, refer to these handy talking points and keep an ear out for a future Issue Spot Podcast on How to Talk to Your Legislators.

Trial Court

The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY2016 staffing and a 19% reduction since FY02. Despite these efforts, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years.

As we’ve outlined, the Governor provided for about a 1% across-the-board increase in Trial Court appropriations, for a total of $646.8 million, which was slightly less than the court’s original maintenance budget request of $649.5 million but quite short of the revised request that accounts for the $11.7 million in pay raises that must be implemented as a result of the pay package that passed earlier this year. The Trial Court’s revised funding request for FY18, $661,368,224, would support a number of modules necessary to maintain a well-functioning court system, from IT updates to programs related to Alternative Dispute Resolution and Transition Age Probation. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

Statewide Housing Court

An especially striking example of the Trial Court’s work to improve both access and efficiency is the plan to expand Housing Court jurisdiction to the whole state. As we’ve mentioned in the past, Housing Court offers a number of key benefits, including operating as the only forum in the Commonwealth capable of handling all housing matters, from code enforcement to eviction proceedings, on a daily basis. Housing Court judges are exceedingly well-versed in all aspects of housing law, an area that can be quite complex, and have the specialized expertise to analyze federal, state and local laws on housing. Additionally, parties in the Housing Court have access to Housing Specialists, who mediate cases, facilitate settlements, and even provide on-site reviews to resolve issues with housing conditions. This, and programs like Lawyer for the Day, also make Housing Court especially adept at handling pro se litigants.

Currently, about one-third of the State does not have access to Housing Court, meaning litigants in those areas must take their matters to District Court, where they wait in line behind a full range of civil and criminal cases and eventually appear before judges who hear only an occasional housing matter. Some municipalities outside of Housing Court jurisdiction find that it’s not always worth sending code-enforcement officers into District Court because of the necessary time commitment. Parties also lack access to the Housing Specialists and therefore may miss an opportunity to settle and avoid the need, and expense, of trying the matter in court. In FY16, there were 27,487 eviction cases filed in the Housing Courts and a statewide expansion would allow the Court to increase its eviction caseload by approximately 6,000 cases.

Plus, the Housing Court is a model of efficiency, featuring the lowest cost per case of any Trial Court department. The Housing Court also offers programs like the Tenancy Preservation Program (TPP) – a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, ultimately helping in preventing homelessness. Currently, conservative estimates show that the TPP saves the state from spending between $4 million and $8 million in shelter costs annually, and if Housing Court is expanded statewide, the TPP could save the state an additional $1.8 million.

While the $1 million earmarked to cover the expansion in the Governor’s budget is a good start, an allocation of $1.2 million would ensure the successful statewide expansion. Earlier this month, Representative Chris Walsh sent a letter to the House Ways and Means Committee, signed onto by 42 other Representatives, urging them to include the full $1.2 million in the FY18 Budget. In addition, Senator Spilka and Representative Walsh have refiled bills, both referred to the Judiciary Committee, for the Housing Court expansion.

If you want to join the BBA in advocating for the statewide expansion of Housing Court, refer to these resources and reach out to your legislators! Listen up for a future podcast on the Housing Court where we’ll take you behind the scenes with a visit to Lawyer for the Day and a conversation with a Housing Court Judge.

CPCS

As the agency responsible for representing those unable to afford an attorney in all matters where the right to appointed counsel attaches, CPCS plays a huge role in our justice system. The way that their state funding is appropriated adds to that burden, requiring them to seek additional money each year to cover shortfalls.

This year, CPCS is seeking $244 million to provide maintenance-level services in the coming year, plus $14.3 million to cover additional initiatives, with most of that earmarked for much-needed increases in the hourly rates paid to private assigned counsel, which have not been changed in 12 years, and increases to the base salaries of CPCS staff attorneys, as recommended in the recent report of a gubernatorial commission (on which the BBA sat).

We encourage you to contact your elected representatives on Beacon Hill regarding all of these BBA budget priorities. As noted above, we’ll be posting a podcast shortly on How to Talk to Your Legislators.

We’ll be checking in with more budget updates as the process unfolds, and if you need a refresher on the budget process generally, head over to our Geeking Out on the State Budget Podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

Chief Justice Gants Addresses the BBA Council

The Chief Justice of the Massachusetts Supreme Judicial Court (SJC) was once again kind enough to address the BBA Council at its most recent meeting. He spoke on a number of important issues facing Massachusetts, including criminal justice reform, the state budget, and civil legal aid.

From his appointment to the Superior Court two decades ago, to his appointment as Chief Justice of the SJC in 2014, and beyond, Chief Justice Gants has consistently shown his analytical rigor and intellectual scrupulousness. In addition to his unmatched legal analysis, he is well-known for his community outreach, regularly taking the time to address the public about the Massachusetts court system and the real impact it has on individual and community experiences.  Chief Justice Gants also has a long history of offering numerous platforms for discussion and critical insights on many of the causes near and dear to the BBA, including access to justice and pro bono legal services. He was a member of the SJC’s Standing Committee on Pro Bono Legal Services and also served as co-chair of the Massachusetts Access to Justice Commission from 2010 to 2015. The BBA recognized Chief Justice Gants with the Citation of Judicial Excellence in 2012.

At the Council meeting, Chief Justice Gants spoke on:

Immigration Issues

Chief Justice Gants began by thanking BBA President Carol Starkey, and the BBA as a whole for the recent leadership shown in response to current events impacting immigrant communities. He noted that complex issues like these will likely not be going away anytime soon, and he is hoping to see members of bar associations stepping up and remembering why they chose to enter the legal profession in the first place. The Chief Justice also pointed to an instance in Texas where a woman was detained by ICE while filing for a protective order from her allegedly abusive boyfriend, noting that the courts in Massachusetts will be keeping a watchful eye on these issues. He remarked that even though these events may be happening far away, the impacts can still be experienced by Massachusetts residents and Massachusetts courts, potentially creating a chilling effect that discourages victims from pursuing redress. Once again, he noted how important it will be for lawyers, and specifically bar associations, to step up and reach out. Underserved populations need this outreach to ensure they understand the availability of legal assistance and know when and how to access their rights and seek assistance and justice through the courts. For its part, the court system has been sending the message that all are welcome and no one’s status will be questioned.

Criminal Justice Reform

Chief Justice Gants next discussed the Council of State Governments (CSG) report on criminal justice reform, which had been released earlier that morning.  Check out last week’s Issue Spot for our full run-down of the released report and a BBA event with an all-star panel discussing the final recommendations.  Similar to his last speech to the Council where he compared the budget process to a baseball game, Chief Justice Gants employed a sports analogy to describe the report, comparing the CSG process and report to a football game. He stated that the final report and proposed legislation were the equivalent of a first down: it advanced the ball down the field and did not require the team to resort to a punt. However, the CSG process did not produce a touchdown, so there is still more work to be done on criminal justice reform.  Overall, the Chief Justice saw the CSG procedure as a great learning opportunity, especially important as the previous nationwide reluctance to pursue substantial criminal justice system reform is beginning to shift and more and more other states are comprehensively addressing these issues. Finally, he provided that the CSG report and proposed legislation is particularly strong in certain areas, including its findings on wrap-around services and the specific reentry needs of 16 to 24 year olds that work to reduce barriers to housing, employment, and education. On that last point, the court system is developing a pilot project dedicated to those young people.

The Budget

Next, the Chief Justice addressed budget issues, beginning with a discussion of Governor Charlie Baker’s allocation of $1 million for a state-wide Housing Court. He noted that currently only two-thirds of the state has access to the Housing Court and that it “just makes sense” to extend access to the entire state. As the BBA has written in the past, proponents of a Housing Court expansion point to the expertise of the judges who are equipped to handle the range of housing issues, the specialists at Housing Court who offer mediation and save potential litigants time and money, and the special services in place that make the Court adept at serving pro se litigants and handling municipal code enforcement.  Additionally, the Housing Court operates at the lowest cost per case of any Trial Court department, making it an efficient option. Make sure to keep an eye out for future BBA updates on this issue.

Chief Justice Gants also addressed the Trial Court’s budget prospects. As we outlined a few weeks ago, the budget process is only just beginning, but the Governor called for a 1% increase in appropriations for the Judiciary for Fiscal Year 2018.  Chief Justice Gants specifically spoke about the likelihood of an increase in Probation staff in light of the CSG report that will call upon more comprehensive supervision to ease reentry and reduce recidivism. He also pointed out that the increase provided in the Governor’s budget would not be enough to allow for an expansion in specialty courts, including Veteran’s Treatment Courts, Drug Courts, Homelessness Courts, and Mental Health Courts. Overall, the Chief Justice noted that BBA support would be crucial on these budget issues, and the BBA has a long history of offering that support.

Civil Justice Reform

The Chief Justice concluded his remarks by reminding members of the Council of the recently-created “menu of options” now available that give lawyers more practice options and allow them to craft their own case in a way that makes the most sense for the particulars of the specific situation.  Chief Justice Gants stressed, as he did previously, that these increased options will only work if lawyers choose to employ them. In many other jurisdictions, the use of these options is imposed by the court, but the Chief Justice is hoping that here, more lawyers will step up and pursue the options independently now that they have the choice.

As expected, the Chief Justice offered important insights into a range of issues, displaying both his impressive expertise and his constant passion for reform that will improve the efficiency, effectiveness, and accessibility of the Massachusetts court system.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

 

 

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

‘Tis the Season to Focus on Civil Legal Aid

Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid!  As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services.  These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence.  As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.

On Tuesday, we were excited to be joined at our Council meeting by Equal Justice Coalition (EJC) Chair, WilmerHale Partner Louis Tompros.  Louis is in his first year as Chair of the Coalition, which consists of the BBA, Massachusetts Bar Association (MBA), and Massachusetts Legal Assistance Corporation (MLAC).  The group advocates for MLAC funding, which in turn provides the bulk of the state’s civil legal aid through a dozen organizations including most notably in our area, Greater Boston Legal Services.

Louis Tompros Speaking to BBA Council

Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid.  In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.

Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice.  We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.

We are excited for this year’s civil legal aid funding campaign, kicking off very soon.  Things are already gearing up, as Tompros explained to our Council.  MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times.  EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.

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 gave more limited advice, information, and trainings 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 you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House.  There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders.  Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  They’ll be glad to hear from you.


Andrew Cohn Speaking on Legal Aid

Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations.  It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.

On his final point, Cohn talked at length about a new initiative we’ve discussed here beforeMassLegalAnswers Online – an internet-based virtual help-line.  The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states.  The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.”  The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally.  Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites.  The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations.  The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.

The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level.  Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest.  They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering.  Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours.  The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.

This site has essentially replaced the old “hotline” model and is a great improvement.  It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out.  The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups.  The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users.  Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.

At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions.  We encourage our readers to check it out and sign-up!

We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Brief History Part I: Protecting Access to Lawyers and Attorney-Client Privilege

We are proud to be honoring our Amicus Committee at the 2016 Annual Meeting Luncheon, one of the largest annual bench/bar events in Massachusetts.  The keynote speaker will be Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School. A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

However, in this blog we would like to focus on our honorees, the BBA’s amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs.  For more than twenty years, the BBA has had a voice in some of the most important legal issues of our time through the filing of amicus briefs.  We look forward to honoring over 100 individuals who have given their time and talents to this work – the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.  This week and next, we will look at some of the most important themes covered in some of our most well-known briefs.

Access to a Lawyer

Tax on Legal Services

The BBA has long defended access to lawyers for those in need, both the constitutional right to a lawyer for indigent criminal defendants and much-needed representation for low-income civil litigants.  The first of these cases was in 1990, related to a then proposed tax on legal services.  On July 7, 1990, the Massachusetts General Court passed House Bill 5858, “An Act Establishing the Economic Stability and Recovery Compact.”  The legislation sought to impose a tax on certain services rendered by lawyers and consumed within the state.  Two days later, Governor Michael Dukakis, noting “grave doubts” about the constitutionality of the bill, asked the SJC to consider the issue.  The SJC requested amicus briefs specifically from the BBA and MBA, and we were happy to oblige.

A mere four days after this request, the BBA and MBA submitted a joint brief, authored by  lawyers from Choate, Hall & Stewart (today, Choate) and Hale and Dorr (prior to becoming WilmerHale) successfully arguing against the tax because it violated both the Massachusetts and United States Constitutions.  Specifically, it explained that the bill violated Article XXX of the Massachusetts Constitution regarding separation of powers by overextending legislative authority to the regulation of the practice of law and attorney conduct, which are regulated exclusively by the judiciary.  It also unconstitutionally infringed upon the SJC’s exclusive powers under the same Article by imposing administrative bookkeeping responsibilities upon the legal profession that conflicted with the ethical obligations embodied in the rules of professional conduct contained in SJC Rule 3:07.  Going a step further, in a footnote, the brief explained that enforcement of the bill would require lawyers to violate attorney-client privilege by disclosing confidential information regarding the nature of legal services rendered in particular transactions.  This level of reporting would “chill clients’ willingness to consult their attorneys and, ultimately, undermine public confidence in our legal system.”

The brief also argued that the bill violated the Fifth (limiting police procedures, outlawing unjust imprisonment and double jeopardy, and protecting a person from being compelled to be a witness against himself in a criminal case), Sixth (right to a speedy and public trial, impartial jury, and to know your accusers and the nature of charges and evidence against you), and Fourteenth (equal protection and due process of law) Amendments of the US Constitution.

As applied to legal services, the bill was argued to be unconstitutional under the Massachusetts Constitution for violating the Excise Clause and Article 11 of the Declaration of Rights, which states:

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The language in this Article has been applied to prohibit the “imposition of unreasonable charges” for access to the courts, which the brief argues such a tax would be.  The charges proposed by the statute at issue are unreasonable because they would not be uniformly applied and the difference in taxpayers’ liability was not rationally related to differences in the nature or degree of services provided by the Commonwealth to different taxpayers in connection with the administration of justice.  Also, unlike other court fees and costs, the revenue from the tax would be unrestricted in its use, whereas court fees typically must have a reasonable relationship to the administration of justice.

The legal services tax provision took effect on December 1, 1990, and two days later, Governor Dukakis signed legislation repealing the tax.  Yet this was not the end of the conversation.  In 2011, a Tax Expenditure Commission comprehensively reviewed the state’s then tax structure and considered new taxes, including this sort of tax on services.  The BBA took the opportunity to remind the public of this brief, and ultimately the Commission’s report did not recommend  this sort of tax.

Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court

Fourteen years later, we were having a similar discussion, this time specifically for attorneys representing indigent criminal defendants.  In Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court, the BBA submitted a brief by three Choate, Hall & Stewart (today, Choate) attorneys, Jack Cinquegrana, Michelle Dineen Jerrett, and Terrence Schwab.  The case arose out of necessity – thanks to the Gideon decision, all criminal defendants have a right to counsel.  If they cannot afford one, the state has a responsibility to provide one.  In Massachusetts, this has been provided under statute since 1983 by a combination of Committee for Public Counsel Services (CPCS) staff attorneys and contracted bar advocates.

As of summer 2004, the hourly compensation scheme for bar advocates had not changed since 1986.  Due to the low rates ($30 to $54 an hour depending on the case) there was an increasing shortage of lawyers, particularly in western Massachusetts.  In early May, 2004, no attorneys reported for duty in Hampden County court to accept new criminal court case assignments, resulting in at least 19 indigent defendants being held in custody without counsel.  CPCS and the ACLU filed a petition in the SJC on behalf of those defendants.

The BBA stepped up to file a brief arguing that the state needed to adequately fund public defenders in order to attract a sufficient number of competent counsel and thatthe state had been underfunding indigent defense services since their inception.  On July 28, 2004, the SJC found that the defendants in these cases were being deprived of their right to counsel under the Massachusetts Declaration of Rights and urged all three branches of government to work together to fashion a remedy.  In August, the Legislature passed a bill to increase hourly rates for certain types of cases through a $16.3 million supplement to the fiscal year 2005 budget and create a commission to study indigent criminal defendant representation.  The final report recommended further increases over a multiyear period.  (For a more comprehensive history of CPCS and bar advocate compensation, see here).

A familiar debate continues today, and the BBA is continuing to weigh-in, most recently advocating for pay raises for CPCS staff attorneys and Assistant District Attorneys so that their base pay equals that of executive-branch attorneys.

Attorney-Client Privilege

The BBA frequently uses the amicus brief platform to argue for the preservation of the attorney-client privilege.  Attorney-client privilege is one of the oldest privileges recognized under law, with the intent of encouraging open and frank communication between attorneys and their clients to promote the broad public interest in the observation of law and administration of justice (see Upjohn v. United States).  The Ninth Circuit has called the privilege “perhaps the most sacred of all legally recognized privileges and its preservation is essential to the just and orderly operation of our legal system (see United States v. Bauer).

RFF Family Partnership v. Burns & Levinson

Two recent cases best illustrate our commitment to this principle.  In 2013, Bob Buchanan of Choate and also a long time member of the BBA’s Ethics Committee and Board of Bar Editors, led the team authoring our brief in RFF Family Partnership v. Burns & Levinson.  “Of Counsel” drafters included Harold Potter, Jr. of Holland and Knight LLP and William Southard of Bingham McCutchen LLP (now Morgan Lewis).  The case concerned whether confidential communications between law firm attorneys and a law firm’s in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  In the case, the law firm Burns & Levinson was accused of malpractice in its representation of plaintiff RFF Family Partnership, LP in a commercial foreclosure property transaction.  After the attorneys on the case received a letter laying out the malpractice allegations, they consulted with Burns & Levinson partner, and BBA Council member, David Rosenblatt, who was designated to respond to ethical questions and risk management issues on behalf of the firm and had not at the time worked on any issues in the RFF matter.  Burns & Levinson did not bill RFF for any of the time devoted to these internal communications.

The BBA brief asked the court to state a clear rule applying attorney-client privilege when a lawyer consults with in-house ethics counsel, arguing that clients benefit when lawyers promptly consult in-house ethics counsel, that there is a sound legal basis for applying the privilege in these circumstances, and there is no basis for carving out a “fiduciary exception” to the privilege.  Specifically, the brief lays out a test for immediate application of attorney-client privilege in these sorts of consultations:

  1. In-house counsel has been formally or informally designated to provide advice to the law firm…
  2. In-house counsel does not work on the particular client matter that presents an issue; and
  3. The time spent by in-house counsel on advertising the law firm is absorbed by the law firm and is not billed or charged to any client.

The SJC concluded that confidential communications between law firm attorneys and in-house ethics counsel concerning malpractice claims of a current client are not subject to different standards under a “fiduciary exception” and are protected from disclosure by the attorney-client privilege “provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.”  Look familiar?

This decision and the, shall we say, slightly modified BBA test, have been cited by other states considering the same sorts of issues.  We are proud that our brief had such an impact and feel strongly that these are the sorts of issues on which the BBA must be a thought leader given the import of the privilege to the legal profession.

Commonwealth v. Wade

More recently, we defended attorney-client privilege in the case of Commonwealth v. Wade, in addition to arguing for the correct interpretation of the Commonwealth’s new post-conviction DNA testing law.  Followers of this blog know this case well – see our coverage throughout the case: December 2015 brief filed, January 2016 oral argument, August 2016 breaking down the SJC decision.  For those of you who may have missed it, the case revolves around interpretation of Chapter 278A, in particular, Section 3(b)(5), which permits new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  The BBA advocated for passage of the law establishing this language, starting with our 2008 Task Force to Improve the Accuracy and Reliability of the Criminal Justice System, which published its Getting It Right report in 2010.  In 2012, the Governor signed a law that sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now:

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

These prongs are nearly identical to the corresponding recommendation contained in Getting It Right.

The trial judge in the Wade case interpreted Ch. 278A, Section 3(b)(5) to require a lawyer to prove all of the prongs, rather than applying the disjunctive reading, as our brief argues and we believe the Legislature intended, that a lawyer must prove only a single prong.  Furthermore, the trial judge interpreted the fourth prong to require the attorney to show the “primary cause” or “actual reason” that DNA testing was not pursued at trial, applying a subjective standard to the “reasonable attorney” test.  Based on this interpretation, the trial judge required the defense attorney to violate attorney-client privilege by testifying on why the now requested DNA testing was not sought at the initial trial.

Our amicus brief, authored by a team from K&L Gates including former BBA Council member Mike Ricciuti, Kathleen Parker, and Patrick McCooe, argued that the fourth prong calls for an objective standard and that the law does not actually require a “primary cause” finding – the test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney would have sought the requested analysis.  Thus, the judge erred in violating attorney-client privilege, and, in doing so, frustrated the purpose of the law in a way that could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

The SJC heard oral argument on January 11 (watch the video here).  The Justices pushed both sides to explain where to draw the line on protecting attorney-client privilege.  Counsel for the defendant argued, much like our brief, that an attorney should never have to violate the privilege to testify, because the law’s standard is objective, asking only what a reasonably effective attorney would do, and not whether the attorney in a particular case was or was not reasonably effective.  In her words, “The piercing of the attorney-client privilege was extreme judicial overreaching. It was excessive.”  While she conceded that it would be appropriate for the court to ask the lawyer about his or her decision making, the “attorney-client privilege should be sacrosanct.”

We couldn’t agree more.  And the SJC apparently feels the same, as the 6-0 decision issued July 29 held in line with the arguments of our brief, that it was an abuse of discretion for the trial judge to deny Wade’s motion for DNA testing based on his misinterpretation of the statute requiring the attorney to demonstrate the “primary reason” he did not seek the requested analysis. The decision makes clear that the statute’s plain language means each of the five prongs in the statute “provides a moving party with alternate pathways to establish that he or she is entitled to the requested [DNA] analysis . . . . Indeed it would be nonsensical to attribute a conjunctive meaning to the word ‘or’ as used in this section… ” (p. 12-13).  On the trial judge’s requirement of finding the “primary reason” or “actual reason” why DNA testing was not pursued at trial, the Supreme Judicial Court decision explains that this language does not appear in the act, and there is no other language indicating such a requirement (p.15).  Instead, the statute’s “reasonably effective attorney” test “is an objective one” (p. 16).  Thus, the trial judge erred when finding that attorney-client privilege had been waived, forcing trial counsel to reveal privileged communications, and denying Wade’s motion to strike those answers.  The “reasonably effective attorney” test “does not require testimony or an affidavit from trial counsel” (p.20).

The court reversed the rulings denying scientific testing and the motion to strike the protected attorney-client privileged testimony and remanded the case to the Superior Court for an order permitting the requested testing.

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 again safeguarding one of the most important tenets of legal practice in attorney-client privilege.

And these two cases are merely the tip of the iceberg.  The BBA has protected attorney-client privilege in each of the following cases as well:

  • 2007 – Bismullah v. Gates – The BBA signed onto a brief drafted by the Association of the Bar of the City of New York and filed on behalf of a group of detainees at the U.S. Naval Base at Guantánamo Bay, Cuba, in the U.S. Court of Appeals for the D. C. Circuit. The brief sought a protective order governing proceedings against Respondent Secretary of Defense Robert M. Gates in order to reasonably protect access to classified information while addressing communications between the detainees and their counsel. The brief argued that legal representation is impaired if lawyers are not able to visit their clients as they find necessary to obtain the information they need and to consult with and inform their clients, as well as to establish the trust necessary to effective representation. On July 20, 2007, the appeals court ruled in line with our brief, that the Guantanamo captives’ attorneys should be allowed to review all the classified evidence in their clients’ cases.
  • 2007 – Hanover Ins. Co. v. Rapo & Jepsen Ins. Svcs., Inc. and Arbella Mutual Ins. Co. – This interlocutory appeal from the entry of a discovery order in an automobile dispute between insurers presented issues regarding attorney-client privilege and work product doctrine in the context of a joint defense agreement: whether Massachusetts law recognizes a joint defense privilege and whether an oral joint defense agreement is enforceable. The brief, authored by John Shope and Katherine Schmeckpeper of Foley Hoag, supported the appellants’ position that Massachusetts recognizes the common interest doctrine, sometimes known as the joint defense privilege. This doctrine, which is recognized in the majority of other states and federal law, permits parties with common interests to share communications protected by attorney-client privilege or the attorney work product doctrine without waving applicable immunity from disclosure. This facilitates the efficient resolution of litigation by increasing the sharing of information and division of labor among counsel working towards a common goal.  The SJC decision recognized the use and validity of joint defense agreements, and the exception to waiver of the attorney-client privilege under the common interest doctrine.
  • 2006 – ACLU v. NSA – the BBA signed onto this brief behind the leadership of then Amicus Committee Chair Deborah Birnbach, Goodwin. The brief challenged the National Security Agency’s wiretapping program on the grounds that it violated attorney-client privilege.  The issue arose out of a classified NSA foreign intelligence program, in existence since at least 2001, which was used to intercept international telephone and internet communications of numerous people and organizations within the United States without warrants, allegedly because of their history of communicating with people in or from the Middle East.  The amicus brief argued that the surveillance program undermined attorney-client privilege because the individuals accused by the government of wrongdoing should have access to legal advice, but such advice can be effective only if lawyer-client communications are conducted in confidence, uninhibited by fears of government wiretapping.  The Sixth Circuit Court of Appeals ruled against the brief, finding that the plaintiffs could not show that they had been or would be subjected to surveillance personally, and therefore lacked standing before the court.  One year later, the US Supreme Court turned down an appeal from the ACLU.
  • 2006 – Suffolk Construction Co. v. Commonwealth of Massachusetts, Division of Capital Asset Management – in a brief authored by Edward Colbert III, then of Looney & Grossman LLP, now with Casner & Edwards, the BBA supported DCAM’s position that government attorneys and their clients should not be exempted from attorney-client privilege. The brief argued on policy grounds that documents of government agencies/employees should enjoy protection from disclosure under the public-records law if the documents are subject to attorney-client privilege.  Aside from the hallowed position of the privilege in the history of law, the brief argued that clients of government attorneys include members of the public served by public agencies who deserve the privilege.  In addition, public officials and employees would be unfairly disadvantaged if their attorney communications were not protected.  Finally, the public interest is served by placing government attorneys on equal professional and intellectual footing as private attorneys, promoting the highest standards of legal excellence among all attorneys, whether they are engaged in public or private practice.  The SJC ruled in-line with our brief, protecting attorney-client privilege for government lawyers.
  • 2000 –U.S. v. Legal Services of New York City – the BBA signed onto a brief defending attorney-client privilege for legal services recipients. The case revolved around a dispute on whether the Inspector General could subpoena legal-services lawyers at Legal Services for New York City (LSNY) about their clients’ particular needs, in order to link clients’ names to their needs.  The brief argued that forced disclosure of this information would violate attorney-client privilege, harming clients and deterring them from seeking legal counsel, especially in sensitive cases such as domestic abuse, public benefits, child abuse or neglect, or mental health and disability rights.  The District of Columbia Court of Appeals held against our amicus brief, permitting enforcement of the Inspector General’s subpoena.

As you can see, the BBA’s appellate advocacy through amicus briefs has had a major impact on the law in Massachusetts and beyond.  Stay tuned for more amicus highlights next week, when we will cover briefs on diversity and inclusion and opposition to capital punishment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Access to Justice Commission Restarts

The start of the BBA’s program year and the new SJC session also coincide with the new seating of the Massachusetts Access to Justice Commission.  Now in its third iteration, the Commission is looking to build on its substantial work.  Last year alone, the Commission accomplished the following (and more!):

  • Legal Services Funding: Supported an increase in appropriations for the Massachusetts Legal Assistance Corporation (MLAC), helping achieve a $1 million increase. The BBA was also instrumental in this push, led by the work of Past-President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, D. Smeallie.  The Commission also explored alternative funding sources, especially from federal grants.
  • Increasing Pro Bono: Supported the state’s participation in a new pro bono website, Mass Legal Answers online, org. The Boston Bar Foundation (BBF) is proud to be helping out with funding and the Association is doing its part to educate the bar about the initiative, which promises lawyers the opportunity to provide “pro bono in your PJs.”  The concept is simple: in brief, individuals with legal questions who meet certain requirements, such as income limits, can create an account and enter their legal questions into an online database.  Licensed lawyers interested in pro bono work can also create an account where they can log in to the question repository and select questions to answer.  Check out the site and volunteer!

The Commission also continued to promote [?] pro bono representation, such as through its Access to Justice Fellows Program, which helps facilitate pro bono work by senior and retired attorneys and by expanding the pilot appellate pro bono program statewide.

  • Improving Access to Justice: Worked on revising forms and rules to promote clarity and accessibility for unrepresented litigants.  The Commission also supported statewide expansion of the Housing Court, a movement  the BBA has advocated for as well, to ensure that the roughly 1/3 of the state not covered by the Housing Court gains access to this valuable resource.  Finally, the Commission supported the work of the 100% access national movement, which calls for the development of state justice systems providing self-representing individuals with 100% access to effective assistance in dealing with essential legal problems.
  • Exploring Expanded Roles for Non-Lawyers: Two subcommittees explored the roles for social services providers and non-lawyers generally in the justice system.

Last week, we were privileged to get a preview of the upcoming year for the Commission from Co-Chair and SJC Justice Geraldine Hines, who listed statewide Housing Court expansion, 100% access to justice, continued pro bono efforts, and implementation of Mass Legal Answers Online as some of the major initiatives for the 2016-17 Commission.  She explained that she felt the Commission’s biggest challenges were in establishing a pilot program for non-lawyer advocates in court and in working with the courts to balance convenience with privacy protection with the release of the uniform rule regarding online access to court records, an issue with which the BBA has been very involved.

The Non-Lawyer Roles Committee is working to find the best way to have non-lawyers appear in court on behalf of indigent clients.  Justice Hines explained that some of their concerns include who should train and supervise the service providers, whether they need to be licensed in some way, and how to address rules that limit legal practice to those who passed the bar.  They also need to consider how to protect the public from malpractice and whether non-lawyer practitioners could have greater impact in certain courts where it could be especially unlikely or difficult for someone to otherwise secure representation.

On September 22, the Commission held its first meeting of the new program year. We were pleased to hear updates on MLAC’s application for a grant from the Massachusetts Office for Victims Assistance (MOVA) under the Victims of Crime Act (VOCA), and that the goal of 100% access was likely to be included in the Trial Court’s forthcoming Strategic Plan 2.0 for formalized consideration and implementation by the courts.  We were excited to see a presentation by Rochelle Hahn of the Massachusetts Law Reform Institute (MLRI) on Mass Legal Answers Online, demonstrating its operation and functionality for both lawyers and advice-seekers.  It promises to be an easy and efficient way to match those in need of advice with those who can provide it, requiring minimal effort from either side.  In addition, the ABA is providing malpractice insurance for participants.

Finally, Executive Director of the Massachusetts Board of Bar Examiners, Marilyn Wellington, presented on the implementation of an access to justice question on the Massachusetts bar exam and the 2018 transition to the uniform bar exam.  Massachusetts became the first state in the country to add access to justice to its bar exam when the SJC approved a rule to require a question on the topic in 2014, and the July 2016 exam was the first to incorporate it.  As Wellington explained, the rule requires that at least one essay question be on the topic of access to justice, and it can also be incorporated into other questions.

While the results are not due out until mid-October, the question is already having an impact as Wellington reported anecdotally that she has heard from local law schools that they have added classes or course components on access to justice as a means to preparing their students for this element of the exam and educating them on these important issues.

However, the Massachusetts bar exam will soon undergo changes as the Board of Bar Examiners recently announced that it will be adopting the Uniform Bar Examination (UBE), effective in 2018.  The UBE tests only generally accepted legal principles—not state-specific law.  Massachusetts is the 25th state to adopt it, and its hallmarks include a greater focus on practice-readiness and the ability for test-takers to apply for admission in any of the states in which it is used, giving them more flexibility.  While the UBE does not currently include an access to justice question, Commissioners discussed the possibility of reaching out to the test makers about the possibility of adding the topic in the future.  In the meantime, Wellington announced that Massachusetts is looking into requiring a pre-admission online course on state law and including access to justice issues.

All this and it’s still only September!  We can’t wait to see how these items develop over the year and look forward to keeping you in the loop on all of the Commission’s work over the course of the year.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

On July 8, the Governor signed the budget amid news that the Commonwealth faces a nearly $1 billion budget deficit.  Despite vetoing $256 million from the Legislature’s conference committee budget (H4450), the Governor maintained a $1 million increase for civil legal aid funding and highlighted the increase in his budget message.

From here, the budget returns to the Legislature, which can override the Governor’s vetoes with a two-thirds vote in each branch.  The House votes first, followed by the Senate. Here is a breakdown of where things currently stand (updated to reflect the Governor’s final budget):

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000

We are thrilled that the Governor included an extra $1 million in funding for legal services over last year’s figure.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from legislators to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055

It is unfortunate that this number was not higher, but we nevertheless appreciate that this funding amount is a slight increase over last year’s appropriation of $631.5 million.  In order for the courts to continue to provide the highest level of justice for the people of Massachusetts, they need adequate funding.  Underfunding of the courts will present a number of challenges, from infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not.  We hope this measure will resurface at a later stage in this year’s session, even if only in the form of legislative language authorizing the expansion (but with no money attached).

We look forward to keeping you updated on the latest budget developments and, as always, urge you to make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Taking on Tough Issues: Chief Justice Gants on the Judiciary

gants croppedWe recently had the pleasure of welcoming the Chief Justice of the Massachusetts Supreme Judicial Court (SJC), Ralph D. Gants, to our building.  He addressed members of our Council, speaking on a myriad of issues currently facing the court system and the state at large.  We’ve got the recap below, but we also invite you attend the upcoming Haskell Cohn Award ceremony, at which we will be honoring the Chief for his distinguished judicial service.

Known for going out into the community to teach people about the Massachusetts courts and the practical role that they play in our lives, Chief Justice Gants has long demonstrated that he cares deeply about ensuring that the justice system works for everyone. He has actively worked to leverage limited resources wisely and to inspire the commitment of new resources to promote that goal.

Since his appointment to the bench as a Superior Court Judge in 1997, Chief Justice Gants has earned a reputation for scrupulous analytic rigor, intellectual honesty and fairness. Prior to his elevation to the SJC in 2009, he was a strong leader of the Business Litigation Session. Throughout his judicial career, and especially since his appointment as Chief Justice of the Supreme Judicial Court in 2014, he has consistently shown a laser like ability to focus on the core issues in even the most complex of cases. He neither shies away from nor glosses over the most difficult issues, but rather grapples with them openly.  This includes access to justice and pro bono legal service – Chief Justice Gants is a former Chair of the Massachusetts Access to Justice Commission and member of the SJC’s Standing Committee on Pro Bono Legal Services.  In 2012, the BBA recognized him with the Citation of Judicial Excellence.

Here are some of the issues he addressed in his speech:

State Budget

Chief Justice Gants began with some news on the budget.  He analogized the budget process to a baseball game, stating that we were in the later innings and had scored some runs, but still had some more innings to go and work to do to convince legislators of the judiciary’s funding needs.  He acknowledged how challenging the budget situation is; even though the state economy appears healthy by many indicators, most revenue gains are already spoken-for due to constant growth in certain key areas such as health care.

As it currently stands, the Governor, House, and Senate have all released their budget proposals.  A conference committee will shortly be addressing differences between the House and Senate proposals.  Here is a brief breakdown of the line items we are most interested in:

  • Massachusetts Legal Assistance Corporation (MLAC – funding for civil legal aid)
    • House: $18,500,000
    • Senate: $18,000,000
  • Trial Court
    • House: $639,900,000 (includes Specialty Courts module)
    • Senate: $643,484,303 (does not include Specialty Courts module)
  • Statewide Housing Court Expansion
    • House: $0
    • Senate: $1,194,614

Click here for a full analysis of all our budget priorities.

Justice System Reforms

Civil

Chief Justice Gants then discussed reforms currently under consideration for both civil and criminal practice.  Following his lead on the need for  a “menu of options” in civil litigation, each department of the Trial Court (aside from the Juvenile Court), examined their civil practices, and most are in the process of finalizing streamlining proposals that will give lawyers more practice options.  However, the Chief Justice stressed, giving lawyers more choices matters only if lawyers actually take advantage of them.  He encouraged lawyers to try out the new options when they are implemented and hoped that practitioners would be pleased with the outcomes – fair and fast resolutions of their cases on the micro level, and a more efficient court system on the whole as a result.

Once this is accomplished, it may lead to larger systemic changes.  For example, the Trial Court is examining increasing the minimum procedural amount to qualify for Superior Court from $25,000 to $50,000.  This change would approximately represent an adjustment for inflation (the amount has stayed the same since 1986), but would also result in shifting a large number of cases from the Superior Court to the District Court level.  Implementation of this change is currently on hold, at least until devoted civil sessions in the District Courts are operating at peak efficiency.

Criminal

On the criminal front, the Chief Justice spoke highly of the work of the Council of State Governments, which is examining criminal justice policy in Massachusetts at the joint request—and with the guidance—of  the Chief Justice, the Governor, the Senate President, and the Speaker of the House.   The Council will be making recommendations for criminal justice reforms in the Commonwealth in the coming months.

Chief Justice Gants has already taken the lead on this issue in the judiciary, installing best practices for sentencing in all criminal courts.  He explained that going forward, the judiciary is looking more closely at issues such as sentence length and post-release conditions (currently about 40% of people are released from prison without any form of supervision), as well as tailoring sentences individually for each defendant.  The court is also focused on monetary issues, such as determining individuals’ ability to pay court fees and increasing the baseline amount for certain crimes, such as larceny, to qualify as a felony.

Access to Justice

Finally, Chief Justice Gants addressed his work with the Conference of Chief Justices, which recently adopted a resolution as part of a national effort to achieve “100% access to justice.”  While that phrase can mean many things, Chief Justice Gants is focused on maximizing both legal and non-legal resources so litigants can get the help they need, from self-help forms, to brief advice, to full representation from a lawyer, depending on the individual’s abilities and the complexity of their issue(s).  The biggest current challenge is figuring out how to allocate resources to achieve the most effective “triage.”  Other states are working to address the same questions, and he hopes we can benefit from some of their research and innovations.  Meanwhile, Massachusetts remains a leader in access to justice – as recognized by the National Center for Access to Justice’s recently-released 2016 Justice Index, which ranks us second only to the District of Columbia – and continues to expand empowering programs and initiatives, such as opening more Court Service Centers in courts across the state.

As always, the Chief Justice demonstrated his deep knowledge of the courts and justice system at large as well as his energetic push for meaningful and beneficial reforms to assure efficient practice and access to justice for all.  We are extremely pleased to be honoring him at next week’s Haskell Cohn ceremony and hope that you will join us in recognizing his remarkable and ever-increasing achievements.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association