Posts Categorized: legal services

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 Government Relations Year in Review: Part I

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

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

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

Amicus Committee

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

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

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

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

Criminal Justice Reform

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

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

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

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

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

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

Final FY17 Budget Update

On July 31, the legislative session came to a close, complete with a few overrides, by way of a two-thirds vote in each branch, of Governor Charlie Baker’s line-item vetoes to the budget that legislators had sent him (H4450).

In signing the budget on July 8, amid news that the Commonwealth could be facing as much as a nearly $1 billion budget deficit, the Governor exercised his authority to target many legislative appropriations for cuts amounting to $256 million.  The below numbers reflect the final state for the FY17 budget, after the Legislature reversed a number of those cuts, one by one, in the final days of session.

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
  • FY17 Final: $18,000,000

We are thrilled that the FY17 budget included an extra $1 million over last year’s figure in funding for legal services—a top BBA priority—and grateful to the Governor for not only sparing the MLAC line-item from his veto pen but also highlighting this increase in his budget message.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from both legislators and the Governor 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
  • FY17 Final: $638,940,097

It is unfortunate that this final number was not higher, but we nevertheless greatly appreciate that the Legislature showed its strong support for the judicial branch by overriding the Governor’s vetoes on eight of sixteen Trial Court line-items, restoring roughly $6 million of the $6.8 million in cuts.  Failure to do so would have placed the courts in an alarming position, so we are grateful to legislators for making this a priority during the end-of-session crush of business and despite tough fiscal constraints.  We also note that the Legislature overrode vetoes for two of the four line-items funding the Supreme Judicial Court, restoring over $100,000 in funding for the Commonwealth’s highest court.

The next few years will be very important for court funding in order for the courts to continue to provide the highest level of justice for the people of Massachusetts.  Continued underfunding of the courts would exacerbate a number of challenges, from aggravating long-standing 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
  • FY17 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 $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 include it.  So we will back making the case for Housing Court expansion in the new session, starting next January.  We look forward to the FY18 budget process and, as always, urge you to help us 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

Budget Update

The Senate is finalizing its budget and we have the latest updates below.  After that it is on to a conference committee to settle discrepancies between the House and Senate. Here is a breakdown of where things currently stand (updated to reflect the latest Senate budget debate):

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
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000

The Senate adopted a $1 million amendment (#1000) co-sponsored by Senators Creem and Brownsberger during its budget debate.  MLAC funding will now be debated in Conference, where we hope the House number of $18,500,000 will be adopted.

Trial Court

  • Request: $654,374,856 + Modules
  • 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

We were pleased to see that the Senate budget proposal is roughly $3.5 million higher than the proposed House appropriation.  We were also pleased to see that it included language and funding for statewide expansion of the Housing Court (more on that below).

However, we were disappointed that the Specialty Court module, funded by the House, was left out of the Senate’s budget plan.  We were proud to recognize the remarkable work of the Specialty Courts at last week’s Law Day Dinner, and the $2.8 million Specialty Courts module would allow for their expansion statewide, giving access to justice for some of the most vulnerable populations and helping to treat issues underlying criminal behavior, such as homelessness, drug abuse, and mental health or veterans issues with support and dignity in order to curb recidivism.  We hope that the final budget can include adequate funding for the Trial Court as well as funding for statewide expansion of both the Housing and Specialty Courts.

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

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 which involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strength 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 included $1 million for Specialty Court, enough to get it started and operational for 6 months, but the House did not follow his lead, leaving this measure out of its budget entirely.  We were pleased to see that the Senate provided similar language and funding to the Governor’s proposal, and we hope that this will remain in the final state budget and be included in the final budget.

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

Focused on the Budget – BBA Update

In addition to yesterday’s budget member alert, we have been busy with advocacy of our own.  At the same time we asked you to contact your Representatives, we sent a letter to Speaker of the House Robert DeLeo, explaining the need for adequate funding for the three issues described above.  We have also been meeting with state and national leaders to discuss our budget priorities.

State Representative Meetings

Earlier this week, former BBA President and Chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, met with Speaker Pro Tempore Patricia Haddad’s office and Assistant Majority Leader Byron Rushing.  More meetings are scheduled in the coming weeks.  Smeallie has spent the last 18 months educating legislators on the findings of the Task Force’s Investing in Justice Report and is devoted to raising awareness of the need for increased legal aid funding.  Through surveys of civil legal aid agencies, the Task Force found that 64% of those eligible for legal aid, at 125% of the federal poverty level, are turned away annually due to lack of resources.  This lack of resources is due in-part to the nearly $30 million decrease in IOLTA funding over the last decade due to fewer deals and plummeting interest rates (more on this below).

This drop in funding caused legal aid organizations to lay-off attorneys and support staff, resulting in an increased number of pro se litigants navigating the courts.  Unrepresented litigants cause delays, take up the time and efforts of judges and court staff, and often struggle to access justice, as demonstrated in a survey of judges conducted by the Task Force.  Finally, the Report demonstrates that investment in civil legal aid yields positive returns, helping the state to save on back end costs such as shelter, police, and medical expenses, as well as bring money into the state through federal benefits.  The Report demonstrate that every $1 invested in civil legal aid serving evictions, domestic violence, and federal benefits, yields $2-$5 dollars in returns to the state.

Congressional Delegation Meetings

At the same time, BBA President-Elect Carol Starkey, Vice President Mark Smith, and Director of Government Relations and Public Affairs, Mike Avitzur, have spent the last two days in Washington, DC, at ABA Day with their counterparts from the MBA.

sen warren pic

From Left to Right: MBA President Bob Harnais, MBA President-Elect Jeffrey Catalano, Senator Elizabeth Warren, BBA President-Elect Carol Starkey, BBA Vice President Mark Smith

In addition to discussing mass incarceration issues and opposition to accrual accounting for law firms, our delegation is advocating for increased funding for the Legal Services Corporation (LSC), the federally funded non-profit corporation the promotes equal access to justice and provide grants for high-quality civil legal assistance for low-income Americans.  LSC provided four legal aid programs in Massachusetts with just over $5 million in FY2016.  In recent years, similar funding has yielded roughly 11,000 to 13,000 cases closed annually.  Stay tuned for a longer write-up on our ABA Day meetings on this blog next week.

Council Meeting

On Tuesday, we heard from MAIOLTA Director Jayne Tyrrell who spoke to the BBA Council about ways lawyers and law firms can maximize their IOLTA contributions, which in turn benefit civil legal aid organizations.  As noted above, IOLTA is one of the largest funders of civil legal aid, but due to historically low interest rates, its funding amounts have decreased dramatically.  While federal interest rates remain low, banks vary in their individual offerings, thus it matters where lawyers and law firms do their banking.  In Massachusetts, more than 40 banks have signed-on as Leadership Banks, agreeing to pay a minimum of 1% interest on IOLTA accounts.  Here is the full list.  Tyrrell encouraged all lawyers and law firms to consider banking with one of the listed banks for the benefits their interest rates will provide for civil legal aid.

At the same meeting, we heard from Governor’s Chief Legal Counsel, Lon Povich.  He spoke on the budget as well, noting that both the Governor’s proposed budget and the budget issued by the House Ways & Means Committee contain no new taxes or fees.  The Governor’s FY17 budget proposal contained a 1% increase for civil legal aid and the courts, in addition to $1 million and enacting language for statewide expansion of the Housing Court.  While the House Ways & Means budget proposal included slightly larger increases for the Trial Court and MLAC, it did not include language or funding for Housing Court expansion.

Povich also discussed the work of the Massachusetts Criminal Justice Review undertaken by the Council of State Governments, and under the sponsorship of the Governor, Chief Justice of the SJC, Senate President and Speaker of the House, as well as the process  to fill vacancies on the SJC and other courts.  Both are still ongoing and we look forward to their forthcoming results.

The budget process continues through June, and we will continue to advocate for adequate funding for our priority issues and hope that you will as well – starting with contacting your Representative as explained above.  We will keep you updated on how the budget progresses and will likely be reaching out at other key points to request your help again.  Thank you in advance!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equal Justice Coalition Legislative Recognition Reception

The Equal Justice Coalition’s Legislative Recognition Reception annually honors some of the state’s top leaders in civil legal aid advocacy.  The event is a great opportunity to recognize the work of state officials who devote their time and efforts to expanding access to justice.  The awards are hosted by the Equal Justice Coalition, a joint project of the Boston Bar Association, Massachusetts Bar Association, and the Massachusetts Legal Assistance Corporation (MLAC).  Founded in 1999, the EJC campaigns for legal aid funding, including through the annual Walk to the Hill lobbying day.

The 2016 Legislative Recognition Reception was held on Wednesday evening at the Grand Staircase in the Massachusetts State House.  The honorees included Supreme Judicial Court Justice Robert Cordy and Attorney General Maura Healey, who received the Champion of Justice Awards, and Beacon of Justice Award winners, Representatives Claire Cronin, Paul Donato, and Brad Hill, and Senators Harriette Chandler and Karen Spilka.

Not only was the event an opportunity for the Equal Justice Coalition to honor some of its strongest supporters, but it also gave everyone a chance to explain why they support legal aid.  Rich Johnston, chief legal counsel to Attorney General Maura Healey, accepted the award on her behalf.  He spoke glowingly of how she lives and breathes the pursuit of justice every moment of every day, and lauded her unyielding commitment.

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Chairwoman Karen Spilka and Betsy Soule, Executive Director of MetroWest Legal Services

Chair of the Senate Committee on Ways and Means, Karen Spilka spoke of the inspiration she draws from the Jewish traditions of tzedakah, or charity, and tikkun olam, making the world a better place – as well as the Biblical directive, “Justice, justice, thou shalt pursue.”  That phrase, and those traditions, have guided her service in the Legislature and hold a personal meaning – reminding the Senator, a former social worker, that individuals are all responsible for each other.



Senate Majority Leader Harriette Chandler received her Beacon of Justice Award from constituent Faye Rachlin, Deputy Director of Community Legal Aid.  Senator Chandler spoke of both the philosophical and practical aspects of her support.  Her career has always focused on helping others, especially those in her community.  The Senator explained that in simplest terms, she is a big supporter of funding for civil legal aid because she refers many constituents to legal aid programs for assistance and recognizes both the utility and necessity of the services they provide.



Second Assistant Majority Leader Paul Donato and Minority Leader Bradford Hill, were also recognized for their long-time support of civil legal aid.  Representative Donato declared civil legal aid a “beacon of light” for those in need.  He drew a personal connection between his role as an advocate for his constituents and the representation civil legal aid attorneys provide for their clients.  He also spoke as a member of the Commission on the Status of Grandparents Raising Grandchildren, which has given him specific insight into the challenges many elders face trying to navigate through the judicial system, challenges that are eased, if not alleviated altogether, by legal representation provided by MLAC organizations.



Representative Hill thanked the attendees for their advocacy.  He noted that, without their work, legislators wouldn’t know about the services legal aid provides or its funding needs, and he stressed that legal aid funding is truly a nonpartisan issue.



The final Beacon of Justice Award was presented to Representative Claire Cronin, House Vice-Chair of the Joint Committee on the Judiciary.  She thanked the House’s Speaker Robert DeLeo and Chair of Ways and Means Brian Dempsey, saying they were all doing their best to support civil legal aid.  She applauded the work of legal aid attorneys, noting she knows they are not in it for the money, but “the wealth they receive is all the good they do for others.”  She encouraged them to keep working every day because it matters so much.



Finally, retiring Supreme Judicial Court Justice Robert Cordy, received his Champion of Justice Award.  In the audience to show their support were fellow SJC Justices Nan Duffly and Margot Botsford, along with Chief Justice Ralph Gants.  Justice Cordy’s former clerk and Equal Justice Coalition member Louis Tompros, WilmerHale, spoke about Justice Cordy’s long-time support of legal aid, most notably in his time as legal counsel for Governor Bill Weld, and about his devotion to advocating annually at Walk to the Hill.  Justice Cordy described how access to justice had become one of the principal and most challenging issues of our times.  He commended lawyers working for civil legal aid organizations and spoke of his own beginnings in indigent criminal defense, which gave him special insight into the necessity of representation for the poor as the key to accessing justice.

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Louis Tompros, WilmerHale, BBA President-Elect Carol Starkey, and Champion of Justice Honoree, SJC Justice Robert Cordy

In all, it was a great event and we look forward to working with many of the honorees throughout the budget process as we move closer to achieving this year’s goal of an additional $10 million in funding for the Massachusetts Legal Assistance Corporation.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association