Posts Categorized: inclusion

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, Law Firms, and Corporations Coming Together on Diversity

Advancing diversity and inclusion in the legal profession has long been a core element of the BBA’s mission, and we are proud to be the first metropolitan bar association to support both the ABA’s recent Resolution 113 and a commitment letter from a number of general counsel.  Both items, approved by a unanimous vote at our November 15 Council meeting, call for law firms and in-house counsel to work together in order to promote diversity in the legal profession.  Our endorsement letter goes a step further: we will assemble a group of Boston leaders to develop next steps for this initiative, both locally and through other metropolitan bar associations nationally.

The ABA passed Resolution 113 at its House of Delegates meeting held August 8-9, 2016.  It reads:

RESOLVED, That the American Bar Association urges all providers of legal services,

including law firms and corporations, to expand and create opportunities at all levels of

responsibility for diverse attorneys; and

FURTHER RESOLVED, That the American Bar Association urges clients to assist in the

facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the

legal services they purchase, both currently and in the future, to diverse attorneys; and

FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys” means

attorneys who are included within the ambit of Goal III of the American Bar Association.

It is accompanied by a detailed report explaining the need for the Resolution and the ABA’s role in diversity issues.  The report includes a model diversity survey asking for firm demographics in a number of categories including leadership, recent hires, and promotions.

The Resolution was supported by five national affiliated bar associations: The National Affinity Bar Association, The Hispanic National Bar Association, The National Asian Pacific American Bar Association, The National Native American Bar Association, and The National LGBT Bar Association.  It was adopted unanimously.  Four individuals who worked on it spoke in favor: ABA President Dennis Archer (Dickinson Wright), Alan Bryan (Wal-Mart), Mark Roellig (former BBA Council member, Executive Vice President and General Counsel for MassMutual), and Wendy Shiba (retired corporate attorney).  Though others were lined up to voice their support, because there was no opposition, the presiding officer called for an immediate vote.

Shortly thereafter, the Resolution and model survey gained support from a group of general counsel.  In early September, the BBA received the general counsel commitment letter, signed by 24 general counsel — including five from Massachusetts companies: Susan Alexander, Biogen; Paul Dacier, EMC; Michael Parini, Vertex Pharmaceuticals; Mark Roellig, MassMutual Financial Group; and Trish Walsh, Voya Financial – and sent to all their colleagues at other Fortune 1000 companies.  This letter asks the recipient to support the following:

  1. You agree that you support ABA resolution 113;
  2. You agree that you will ask the firms that provide a significant portion of your legal services to complete the Model Survey (of course you may continue to ask these firms additional questions specific to your business and the actual attorneys that serve you);
  3. You agree that firms you currently do not retain and that are competing to handle a significant matter for your company will complete the Model Survey;
  4. You agree that the information obtained through the Model Survey will be used as a factor in determining what firms to retain or terminate in providing legal service to your company; and
  5. You agree that you will advise Keevin Woods, Director, Commission for Racial and Ethnic Diversity in the Profession at the American Bar Association, keevin.woods@americanbar.org, and Alan Bryan, Senior Associate General Counsel – Legal Operations and Outside Counsel Management for Wal-Mart Stores, Inc. at alan.bryan@walmartlegal.com, that you support the above four principles, such that they can work together to maintain and publish an ongoing list of those of us that have committed to them.

In the last few months, the number of companies endorsing the Resolution has continued to grow.  Currently there are more than 50 such supporters:

ABM Industries
American Express Company
Biogen
Boise Cascade
Booz Allen Hamilton
Bristol-Myers Squibb
Capital One Financial
CBS Corporation
The Clorox Company
eBay
Echo Star
Eli Lilly
EMC
Guardian Life Insurance
The Hartford
Hess Corporation
HP Inc.
Interpublic Group
John Hancock Financial
Kodak
Lincoln Financial Group
Lockheed Martin
LPL Financial
Macy’s
Marsh & McLennan
MassMutual
MasterCard
Mattel McDonald’s
McKesson Corporation
Meritor
MetLife
Microsoft
New York Life Insurance Company
Northrop Grumman
Northwestern Mutual
One America
PepsiCo
Pitney Bowes
The Principal Financial Group
Quest Diagnostics
Rockwell Automation
Securian Financial Group
Thrivent
TIAA
Travelzoo
United Airlines
Verizon Communications
Vertex Pharmaceuticals
Varian Medical Systems
Viacom
Visa
Voya Financial
Wal-Mart Stores
The Williams Companies, Inc.

The Resolution and letter were reviewed by all BBA Section Steering Committees, the Executive Committee and Council, and was unanimously supported.  Members noted the importance (a) to the profession of being able to gather comprehensive and annual data on diversity and (b) to general counsel of being able to compare firms “apples-to-apples,” both to each other and to aggregated data standards.  They also discussed the benefits for firms, such as receiving more detailed feedback from general counsels on their hiring decisions and streamlining the process for diversity reporting.

We look forward to continuing our commitment to diversity through this initiative and to convening a group of Boston leaders for this discussion.  We are extremely proud to be leading this push with our law firm and corporate partners in the Boston community and will keep you updated on all the latest developments.

– 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

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

ABA President Paulette Brown Briefs BBA Council on Initiatives

Earlier this week, we were excited to welcome ABA President Paulette Brown to the BBA.  She first addressed BBA Council and then served as keynote speaker for our event, Making Strides: Retaining and Promoting Diverse Talent.  Read more about that event here.

Brown is the first woman of color to serve as ABA President.  She is a labor and employment partner at Locke Lorde, LLP, in Morristown, NJ, and co-chair of the firm-wide Diversity and Inclusion Committee.  Prior to becoming president, she held a variety of leadership positions within the ABA. She has been a member of the ABA House of Delegates since 1997 and is a former member of the ABA Board of Governors and its Executive Committee as well as the Governance Commission.  She has worked on many committees and events related to diversity and inclusion in the bar and justice system.

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The cornerstones of Brown’s presidency are eliminating bias and enhancing diversity and inclusion in the justice system, issues that have long been essential to the BBA’s mission as well.  (To see a timeline of our diversity and inclusion efforts, click here.)  Despite the best efforts of the bar and law firms, law is less diverse than comparable professions, being 88% white.  Brown has been working to develop sustainable action plans to increase diversity and curb implicit bias, including creating legal education programs for judges, district attorneys, and public defenders to increase awareness of these issues.  Under her leadership, the ABA also submitted an amicus brief in the second round of the Fisher v. University of Texas case, arguing, much like the BBA’s own brief, that race-conscious admissions policies in higher-education are necessary to assure a pipeline of diverse candidates to law school and into the legal profession.

The centerpiece of her initiative is the Diversity and Inclusion 360 Commission which includes four working groups trying to change the dynamics of the legal profession:

  • Implicit Bias – this group is creating training videos and accompanying training manuals for judges, prosecutors, and public defenders about the existence of implicit bias and what to do about it. The video for judges was recently unveiled, featuring judges, law professors, and implicit bias experts.  Brown is working on spreading the word to national judges’ groups and associations to encourage its usage by the bench federally and in all 50 states.



  • Pipeline Projects – underscoring the “pipeline” argument made in the Fisher case, this group will be examining the larger social picture of diversity throughout the education process as a means of achieving a more diverse bar. It is Co-Chaired by BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts member Dean Martha Minow of Harvard Law School.  Three subgroups will look separately at K-12 education, college and pre-law preparation, and law school and bar passage.  Brown noted that these subgroups will also examine potential law school pipelines from community colleges and from the military.  They will attempt to identify ways to effectively address the barriers facing diverse students at each juncture.
  • Diversity and Inclusion Guidelines and Implementation – this group will develop model diversity plans for bar associations and recommendations for state and local bars encouraging mandatory CLE courses on diversity and inclusion. The last piece recently took a major step forward at the ABA’s Midyear Meeting in February, when the House of Delegates engrossed Resolution 107, resolving that all states with mandatory CLE programs should modify their rules to include mandatory diversity and inclusion training.  This group will also look at the ABA itself to ensure that the organization is a model nationally for diversity and inclusion procedures and implementation.
  • Economic Case – this group will develop methods for increasing economic opportunities for diverse lawyers through training, mentoring, analysis of legal spending, a review of RFP processes, and other tools. One of its goals is to create a uniform measurement tool by which all law firms can evaluate their efforts towards diversity.  BBA Council member Mark Roellig, MassMutual, serves as a member of this working group.
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We applaud the ABA and President Paulette Brown for all her work on these major issues in today’s practice.  Hopefully, under her leadership, the ABA can develop some solutions to the problem of implicit bias and establish a pipeline of diverse individuals to join, and stay in, the legal profession, so that lawyers can more closely reflect the public they serve.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association