BBA Joins Freedom for All MA to Protect Transgender Antidiscrimination Law

In their last meeting of the year, the BBA Council reaffirmed their support for transgender equality and voted to join the Freedom for All MA Coalition to protect An Act Relative to Transgender Antidiscrimination from repeal in November 2018. Keep reading to learn more about the BBA’s long history in support of these protections, how the law made it to the ballot, and what you can do to ensure this important law remains on the books.

In 2007, the BBA Labor and Employment Section brought a request to Council to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. This proposed law included protections in employment, housing, credit, higher education, as well as public accommodations. After endorsing the bill, the BBA worked with the Massachusetts Transgender Political Coalition to advocate for these anti-discrimination protections. We presented oral testimony at legislative committee hearings, and you can read our written testimony here.

As this testimony provides, antidiscrimination protections are necessary for ensuring access to justice for all, a key part of the BBA’s Mission. Transgender individuals need these specific protections because they suffer pervasive discrimination and disproportionately high levels of crime. As an association of more than 12,000 legal professionals, the BBA also knows that diversity in the profession, as well as in our society at large, is vital. These laws are necessary to ensure that no one faces discrimination or violence based on their gender identity.

We continued this advocacy until a law was eventually passed in 2011. When that law, An Act Relative to Gender Identity, was adopted, we applauded the governor and the Legislature for finally taking this important step. The final version, however, differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. Advocates continued to fight for the inclusion of public accommodations until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. Upon enactment of this law, we again issued a statement in support, providing:

“Discrimination against individuals who are gender non-conforming is both dehumanizing and inconsistent with the bedrock principle of justice for all. We applaud Governor Baker and the Legislature for placing Massachusetts alongside 17 other states and the District of Columbia in taking this important step forward.”

Following this, we continued to track the law’s implementation, and last spring hosted a program that discussed what it meant and how it was working thus far. Check out our podcast on that program here.

There having been no reports of issues with enactment of the Massachusetts law (and no issues in the various jurisdictions, like Boston, who have had these same local protections for over a decade), this begs the question, how did the law end up on the ballot?

Following its enactment in 2016, opponents of the public accommodations protections began a ballot initiative to pursue repeal of the law. This group, called Keep MA Safe, has based their opposition to the law on the familiar, fear-based “bathroom bill” rhetoric that was used to oppose the laws in 2011 and 2016. By gathering the requisite number of signatures, only 1.5% of the total vote cast for Governor at the last state election, Keep MA Safe managed to ensure that repeal of the 2016 law appears on the November 2018 ballot as a veto referendum. At the polls, voters will be asked whether they approve of the law, and a “Yes” vote will safeguard the public accommodations protections for transgender individuals.

The BBA is proud to join the Freedom for All MA Coalition in ensuring these crucial protections remain law. According to President Mark Smith:

 “It is my hope that, in concert with the Freedom for All Massachusetts coalition, we can prevent this important civil rights victory from being reversed.”

This Coalition is working hard to gather broad support to counter the fear-based narratives being put forth by opponents of the law and educate voters on both the experiences of harassment and discrimination faced all-too-often by transgender individuals and the benefit of having such a law on the books. Already, the coalition is made up of a large and diverse network of individuals and entities, including big businesses, advocacy organizations, educational institutions, public officials, law enforcement officers, religious leaders, and industry associations. This includes large employers like Google, GE, Facebook, Ropes & Gray, and LPL Financial; public officials and entities like Mayor Marty Walsh, the Major City Chiefs of Police, the Chiefs of Police Association, the Greater Boston Chamber of Commerce, and the Boston Public Library; advocacy organizations like the ACLU, GLAD, the Human Rights Campaign, and the YWCA; as well as bar associations like the Women’s Bar and the Mass LGBTQ Bar. If your company, bar association, or entity has not yet added their name to this Coalition, you can find more information on how to do so here.

You can expect regular updates on this campaign and some important opportunities to join the BBA in its work to protect these antidiscrimination protections going forward, so stay tuned! In the meantime, you can sign the Freedom for All MA Pledge to defend transgender equality in Massachusetts.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Government Relations Year in Review

As we begin to turn our attention to 2018, we wanted to spend a moment to recap our past year in the Government Relations Department.

Our annual survey of our Issue Spot posts reveals our priorities over the past year, and it will come as no surprise to learn that Criminal Justice Reform and Access to Justice were two key focal points. We also offered regular updates on our budget priorities, legislative advocacy, news from the courts, and comment submissions, with the remainder of the posts focusing on various notable events and speakers.

Criminal Justice Reform

It’s been a big year for criminal justice reform here at the BBA, and for the Commonwealth as a whole. A couple of decades since the last comprehensive set of reforms, the Legislature is posed to pass sweeping changes, and we’ve been right in the mix with the release of our own report and recommendations for necessary reforms.

February 23: Let the Criminal-Justice Reform Debate Begin. The year kicked off with the long-anticipated release of the Council of State Governments’ Justice Center (CSG) report and recommendations, following 18 months of CSG review and analysis. In an effort to achieve consensus, the recommendations focused largely on recidivism reduction and improvements in re-entry efforts, leaving many issues unaddressed, especially on the so-called front end of the system (e.g., diversion programs, cash bail, and sentencing,).

June 29: Criminal-Justice Reform Inches Forward. Over the summer, the Joint Committee on the Judiciary held two heavily-attended public hearings on the CSG legislation as well as over 150 other criminal justice bills on items like criminal procedure, sentencing, prison programs, and related issues. BBA Treasurer Martin Murphy of Foley Hoag testified on our behalf, focusing on our long-standing opposition to mandatory minimum sentences.

October 05: New BBA Report Recommends Comprehensive Criminal Justice Reform. As the CSG group prepared release of its report, then-BBA President Carol Starkey of Conn Kavanaugh appointed a BBA working group to review and analyze the CSG work and consider further reforms necessary for improving the criminal justice system in Massachusetts. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group released its report and recommendation, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.” This report, which calls for broader reforms than that recommended in the CSG proposal, outlined six key ways to make the criminal justice system here in the Commonwealth fairer and more cost-efficient.

November – December. As the year wrapped up, both the House and the Senate passed criminal justice reform legislation that would offer significant changes to our system. We offered updates at each of the key steps:

While neither of the bills in conference would implement all of the recommendations of the BBA Report, they would take significant steps toward reaching the goals outlined in the six areas addressed in the Report, and we will continue to advocate our positions to the conferees and keep you updated as the debate continues!

Access to Justice

As a key part of the BBA’s mission, 2017 was also filled with many access to justice-related updates.

January 12: Walk to the Hill 2017: Rallying for Civil Legal Aid. Every year kicks off with one of the largest access to justice events in the state, and one of the largest lobby days at the State House, and 2017 was no different. Here, we previewed the January 26 Walk to the Hill event…

February 2: Walking for Justice … And here, we recapped the event, where around 700 lawyers gathered in the Great Hall to hear from then-BBA president Carol Starkey, the MBA President, and SJC Chief Justice Ralph Gants on the importance of civil legal aid funding, before heading out to speak to their own legislators.

May 3: BBA at ABA Day 2017. While much of our government relations focus remains at the local and state level, every April, BBA leadership heads to D.C., alongside bar leaders from across the country, to advocate for federal funding for civil legal aid and other important issue areas. Last year, in addition to calling for adequate funding for the Legal Services Corporation, then-BBA President Carol Starkey and current-BBA President Mark Smith also discussed access to justice for homeless veterans on their congressional delegation visits. The 2017 ABA Day felt especially close to home, as Representative Joe Kennedy received the ABA Justice Award for his work on civil legal aid, upon nomination by the BBA and MBA.

July 27: BBA Council Endorses Two Access to Justice-Focused Policy Items. The July BBA Council took on an access to justice theme with the consideration of ABA Resolution 115 and a set of comments from the Civil Rights and Civil Liberties Section. The Council voted to endorse the Resolution, which called for the provision of counsel in federal immigration proceedings, by the federal government, and unless and until then by all levels of government, with a priority given to those individuals in removal proceedings who are detained. The set of comments related to the proposed change from print reports of appellate decisions to electronic reports only, and presented key access to justice considerations that must be made when making this switch, as requested by the Court’s comment solicitation.

October 12: Third Access to Justice Commission Reconvenes. The Third Access to Justice Commission held its first meeting of the year in October, celebrating key victories of the past year like the statewide expansion of Housing Court—approved by the Legislature after years of efforts by a coalition led by the Massachusetts Law Reform Institute and including the BBA—and previewing some key initiatives in the coming year, including the Justice for All Project, the Greater Boston Immigrant Defense Fund, the Office for Victim Assistance Grant to the Massachusetts Legal Assistance Corporation (MLAC).

October 19: A2J Update: Legal Services Corporation comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council. In what proved to be an access to justice-focused October, the Legal Services Corporation (LSC), the federal funder of legal services programs, came to Massachusetts for its Quarterly Board Meeting. The Meeting consisted of a Forum with a number of panels on topics like “Natural Disasters, Legal Aid, and the Justice System” and “The Importance of Access to Justice to American Business.” Following the forum, BBA President-Elect Jonathan Albano was invited to speak at the Pro Bono Awards Reception honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations. That same month, the Chair of the Equal Justice Coalition (EJC) Louis Tompros of WilmerHale and Director of the EJC Laura Booth visited Council to forecast the FY19 civil legal aid budget campaign and thank the BBA for our continuing work in support.

December 14: Walk to the Hill with the BBA. As 2017 began with a focus on civil legal aid and Walk to the Hill, so it wrapped up, as we previewed the 2018 event in one of our last Issue Spots of the year.

Budget Advocacy

We also, as usual, continued to advocate for our key priorities in the budget. In addition to adequate funding for civil legal aid and the MLAC line-item, we also successfully advocated for funding and authorizing language for statewide expansion of the Housing Court, and renewed our call for adequate funding for the Trial Court Department and the Committee for Public Counsel Services (CPCS).

February 16: Initial Read on the FY18 Budget

March 30: BBA Budget Advocacy for FY18

April 13: BBA Budget Update: House Ways and Means Proposes FY18 Budget

June 1: Budget Update: Senate Approves FY18 Budget

July 13: Budget Update: Conference Committee Submits FY18 Budget to Governor

By way of reminder, the FY18 Budget provided an $18 million appropriation (level-funding from FY17) for the MLAC line-item, $642.6 million for the Trial Court Department, and around $59 million for CPCS staff and operations, $98 million for CPCS private counsel compensation, and around $15 million for indigent court costs. The past few years have seen revenues fall consistently short of initial projections, creating on an on-going budget crunch, but the run-up to the current fiscal year was especially challenging, with the shortfall continuing to widen throughout the budget process, causing conference-committee members to take the drastic step of revising their appropriations downward on the fly. Early indications are that, while revenues remain constrained, the outlook for the coming FY19 (starting July 1) is not quite so dark.

In a major budget victory, after more than four years of advocacy, the FY18 budget included both funding and authorizing language for statewide expansion of the Housing Court. The Housing Court Department has begun this expansion, and you can expect more updates for us on this rollout into 2018.

State House Updates

In addition to our budget advocacy and push for criminal justice reforms, we continued to advocate for our past positions, like support of a ban on conversion therapy practices on minors, and added a few new ones, like support for Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Assets Act language. Here’s a recap of these and other legislative updates:

February 8: State House Forecast for Civil Rights and Civil Liberties

March 23: What Will Become of Your Digital Assets?

April 6: News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

May 11: RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

May 18: BBA Testimony at Judiciary Committee Hearings

June 8: BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

News from the Courts

We used a number of Issue Spot posts to update key case and court developments. One of the biggest stories of the year was the highly-anticipated “Bridgeman II” decision that stemmed from Hinton Drug Lab Scandal and the misconduct of chemist Annie Dookhan. You’ll recall that the BBA filed an amicus brief, drafted by then-Amicus Committee co-chairs Elizabeth Ritvo of Brown Rudnick LLP and Anthony Scibelli of Barclay Damon LLP in the case, calling for a global remedy, or the dismissal of all drug charges tainted by the misconduct. While the court did not adopt the global remedy approach, the decision placed the burden on the DAs and not the individual defendants to correct the misconduct and produced a similar result, with the eventual dismissal by prosecutors of over 20,000 convictions.

January 26: SJC Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

March 2: Chief Justice Gants Addresses the BBA Council

March 16: Recent Developments in the Law on Jurors

April 20: SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

September 27: SJC Update: Court Narrows Felony-Murder Rule

October 2:  ICE Conducts Raids in Massachusetts, Points to SJC decision

October 30: Chief Justice Ralph Gants Delivers the State of the Judiciary

Comments

Many of our posts also focused on the hard work of our sections in submitting comments on proposed new rules and amendments to existing rules:

March 9: Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

August 10: Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

October 26: BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

December 7: Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

Miscellaneous Posts

Finally, we took the time at various points throughout the year to recap key speakers, dates and events:

January 19: AG Healey Spells our Priorities at Council

March 27: Issue Spot Podcast Episode 5: Gender Identity and Public Accommodations in Massachusetts

April 27: BBA Council Hears from the Governor’s Chief Legal Counsel

May 25: BBA Law Day Dinner: Celebrating the Leaders Who Shape and Protect the Rule of Law

August 24: ABA Annual Meeting Recap

September 7: Welcome to the 2017 – 2018 Program Year

September 14: DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

September 28: BBA Annual Meeting Preview

We look forward to continuing to keep you up to speed on our work, and we hope that you’ll keep reading. Happy New Year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Walk to the Hill with the BBA

Each year the Equal Justice Coalition brings together hundreds of attorneys to participate in one of the largest lobby days at the Massachusetts State House with the aim to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents. Lawyers form teams and head to the State House to hear from various leaders in the legal community and speak to their own state Senators and Representatives on the crucial need to adequately fund the line-item for the Massachusetts Legal Assistance Corporation, the largest source of funding for the State’s network of legal aid providers.

For a full rundown of just how important this effort is, read up on the work of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, check out reporting on last year’s efforts, and review the FY19 budget request.

To join this effort, you’re invited to join the Boston Bar Association’s Team as we walk to the State House together to advocate for the FY 19 budget request. We’ll meet for breakfast at the BBA to hear tips for talking with your legislators from our Director of Government Relations.

If you’d like to join the BBA’s Team and attend the breakfast, register here.

To check if your firm or organization has a team, the full list of registered teams is posted here.

If you have questions about Walk to the Hill, please contact Alexa Daniel at adaniel@bostonbar.org for more details.

Criminal Justice Conference Committee Formed

Last week, leaders of the Massachusetts Senate and House of Representatives named the six conferees who will be tasked with working out differences between the two chambers’ respective omnibus bills on criminal-justice reform.  The Senate passed its legislation, S. 2200, in October, and the House followed suit last month with H. 4011 and H. 4012.  Senator Will Brownsberger and Representative Claire Cronin—co-chairs of the legislative Judiciary Committee, which initially worked on the issue—will lead the panel, joined by Senator Cynthia Stone Creem, Senate Minority Leader Bruce Tarr, House Majority Leader Ronald Mariano, and Representative Sheila Harrington.

Each house’s bill would bring sweeping changes to the Commonwealth’s criminal-justice system, of the kind not seen for decades.  Certain mandatory minimum sentences would be repealed, pre-trial diversion programs would be expanded, the burden of fines and fees on poor offenders would be somewhat eased, and meaningful reforms would be made to the bail system and to the laws on public access to individuals’ criminal records.  These are just a handful of the topics covered by these comprehensive bills, but all of these areas were addressed in the BBA’s recent report, No Time to Wait.

Although neither bill would implement all the recommendations of our report, they would make progress toward those goals, and we will continue to advocate our positions to the conferees.  There is no formal deadline for the conference committee to release a final bill, but the formal legislative session must conclude by July 31.  (You can get more background on all this here.)

—Michael Avitzur
Government Relations Director
Boston Bar Association

Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Steering Committees, who offer insights from the viewpoint of a particular practice area. Last month, we submitted comments on behalf of the Ethics Committee and the Steering Committees of the Business and Commercial Litigation Section and Criminal Law Section on a proposed amendment to a Trial Court rule and a proposed District Court Standing Order.

Proposed Amendments to Trial Court Rule XIV

In October, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records. You may recall that in 2016, the BBA spent a great deal of time thinking about Trial Court Rule XIV and even established a working group on the matter that, along with various sections, submitted substantial comments on the then-proposed rule. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was only given provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected proposed revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,” that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees did not have much issue with the substance of the rule itself, and instead highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by noting that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that “[o]ne may not use the Attorney Portal to access information in a manner that risks the integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The Criminal Law Section Steering Committee also noted a point of ambiguity in the Terms, with some members thinking the provision that provides “you must not leave your computer or work area unsecured while you are logged into the Attorney Portal,” was somewhat unclear, difficult to enforce, and duplicative, since the terms already note that one is fully responsible for activity that occurs under one’s login credentials. The Steering Committee also raised a point about the Rule itself, which provides that the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.)

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the Rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the Terms, they thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). They proposed a definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. Finally, the committee members felt that the fourth bullet in the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials, even if not permitted (as it currently states “or persons you allow to use your login credentials”), as the prior bullet already states that one is fully responsible for all activity that occurs under one’s login credentials.

District Court Standing Order on Voir Dire Protocol

The Steering Committees of the Criminal Law Section also offered comments on the Proposed District Court Standing Order on Voir Dire Protocol, following an invitation to comment from the Chief Justice of the District Court Paul Dawley. As provided in the invitation to comment, the “new order establishes a standard procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.”

First, committee members commended the District Court for creating the standing order and expressed hope that it would encourage more attorneys to utilize voir dire in the court. Members also found the order to be overall reasonable and helpful, with one individual specifically noting that the explanation and details offered on what questioning is, and is not, appropriate, is especially useful for practitioners.

Committee members also, however, raised a few questions about certain aspects of the rule. For example, some were worried that the order was perhaps overly inflexible. Though the level of detail was noted as very helpful, some felt the requirements were somewhat too involved, and instead, a bit more flexibility should be built into the voir dire process, depending on the nature of the case and the requests of the parties. Some felt the order favored panel voir dire but noted there were instances where individual voir dire made more sense, highlighting the use of panel and individual voir dire in Superior Court that was working well.

In addition, some members also felt the requirement that all voir dire-related requests in criminal cases be filed not later than five business days before trial may not be reasonable in practice. These members noted that the reality of practice in the District Courts is that judges usually do not deal with any trial motions until the morning the case is called, because typically there will many cases called for trial each day. As a result, members felt there was no real likelihood that a judge would address the voir dire with the parties some days before a trial, so instead, simply requiring formal requests to be made by the date of trial would be more reasonable for both attorneys and judges. Some members felt adding a check-off indicating if the parties will be seeking attorney-conducted voir dire to the Pretrial Conference Form would be sufficient and more practical.

Finally, members of the Steering Committee expressed hope that the Boston Municipal Court Department would also soon be instituting rules for attorney-conducted voir dire, and that any such rules would parallel the District Court’s protocol in order to reduce confusion and ease the use of voir dire for attorneys.

A special thanks goes to Co-Chair of the Criminal Law Section Steering Committee, Dean Mazzone, of the Attorney General’s Office, for presenting these comments to the BBA Executive Committee last week! A usual, we’ll be sure to keep you posted when final versions of the proposed amendments to Trial Court Rule XIV and the Voir Dire Standing Order are promulgated.

SJC Approves Amendments to SJC Rule 3:07

Speaking of which, the SJC just approved amendments to the Mass Rules of Professional Conduct Rule 3.5 on post-verdict juror contact, which the Criminal Law Section Steering Committee offered comments on in April. Read more about the BBA’s work on the issue here.

The proposed amendments to Rule 3.5 were meant to conform the rule to the SJC’s 2016 decision in Commonwealth v. Moore, 474 Mass. 541 (2016). In that case, the court held that Mass. R. Prof. C. 3.5(C), adopted in 2015, effectively overruled the rule established by Commonwealth v. Fidler that required attorneys to seek leave of court prior to contacting jurors post-verdict, and to do so only under court supervision and direction. In Moore, the Court also held that common-law principles limiting post-verdict inquiry of jurors to matters relating to extraneous influences and prohibiting inquiry into the individual or collective thought processes of jurors, the reasons for their decision, or the substance of their deliberations, remain as continuing precedent, and that though any attorney is entitled to initiate contact with jurors on permissible subjects without seeking leave of the court, they must adhere to the notice requirements established by the court.

The amended rule now includes the provision that “a lawyer shall not…(c)communicate with a juror or prospective juror after discharge of the jury if:…(4) the communication is initiated without the notice required by law.” In addition to the addition of Rule 3.5(c)(4), the adopted amendment also replaces current comment 3 and adds a comment 3A and 3B. These comments offer more guidance as to when post-verdict juror contact is, and is not, allowed and outlines the specific notice requirements that must be followed when an attorney does wish to initiate contact on a permissible topic.

We are thankful to our members who take the time to review and respond to these comment opportunities and look forward to continuing to be active participants in the comment process in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

MA Legislature Advances Criminal Justice Legislation

Now that both the State Senate and State House of Representatives have passed bills to make sweeping reforms to the criminal-justice system in Massachusetts, the stage is set for leaders in each house to appoint members of a six-person conference committee.  Those conferees will face the daunting task of finding compromise language on a wide variety of issues covered by the respective bills.  Some topics addressed in one bill were entirely left out of the other.

Based on the report of the BBA’s Criminal Justice Reform Working Group, we focused our advocacy on the six areas in which the Working Group made recommendations.  On the whole, we were pleased that each house’s bill would make significant progress in all of these six areas.  Here’s a snapshot of some of our key recommendations, and the action that’s been taken thus far by legislators:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion.)
  • We were pleased to see that both bills include provisions that would remove the age restriction on diversion programs in District Court.  The House bill would also require the creation of pre-arraignment programs for certain groups.
  • We recommend going further, to make all non-violent offenders with no prior felony convictions eligible for consideration for pre-trial diversion.
  1. Adopting substantial reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  • Specifically, we recommend that the recent decision by the Supreme Judicial Court in Brangan v. Commonwealth be codified, to ensure that defendants are not held solely because they are poor.
  • The two bills take different approaches toward achieving bail reform, but on this critical issue they agree with our Working Group: No defendant should ever be incarcerated before trial simply because they cannot afford bail.
  1. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  • Again, each house would eliminate some mandatory minimums for drug offenses, in recognition of the fact that this has been a misguided effort to address substance addiction.
  • The current scourge of opioid addiction has brought renewed, and well-deserved, attention to the issue—and led some law-makers to resort to new application or enhancement of mandatory minimums in response.  But this blunt tool has already been shown to offer no solution to such a complex public-health problem.
  • Consequently, the BBA continues to recommend the elimination of all mandatory minimums for drug offenses, so that judges can craft individualized sentences, in the interest of justice, after hearing from both sides at the conclusion of each case.  We are hopeful that a provision in the Senate bill, to establish a commission that would study the effectiveness of mandatory minimum sentences, can offer a road map toward that goal in the near future.
  1. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  • Both houses seek to establish a uniform standard for what constitutes “substantial financial hardship,” such that a judge may waive or reduce a fine.
  • We believe that the conference committee should further adopt our recommendation of completely eliminating counter-productive parole and probation fees after release.
  1. Expanding recidivism reduction programs to advance public safety.
  • Separate legislation to implement consensus recommendations from the report early this year by the Council of State Governments (H. 4012, which the House also passed) would increase incentives for certain incarcerated individuals to take advantage of these programs.
  • The BBA recommends extending these incentives for participating in and completing programs to all inmates who may be released from state prison.
  • This will further reduce recidivism and save money by freeing up beds. Such programming is not a reward but rather a means to protect public safety.
  1. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.
  • Both houses share our support for a major reduction in the waiting periods before records become unavailable to the general public.  Although their two bills agree on a reduction from 10 to 7 years for felonies and from 5 to 3 years for misdemeanors, we actually called for the former to be reduced to 5 years, and our report demonstrates that there is academic research behind this recommendation.
  • We are also call for automatic sealing when charges are dismissed prior to arraignment, or after a defendant successfully completes a diversion program—unless the judge finds, upon objection from the District Attorney, that doing so would not serve substantial justice.

Once the members of the conference committee are named, we will reach out to them to make clear our positions on all provisions within these six areas that are still in conflict.  And we will of course keep you informed as that process plays out, potentially over all the remaining eight months of formal legislative sessions this term.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Criminal Justice Reform Bill Passes the Senate

When the Senate last week debated a comprehensive criminal-justice bill that had been months in the making, it marked the first time, after years of public discussion, that either house had formally gone on record with votes on what the reform package should include.  The Senate’s marathon session, which started last Thursday morning and ended well after 1am that night, was almost exclusively devoted to the bill, and the 161 amendments that members had initially filed for consideration.

The final bill, as approved by a vote of 27 to 10, incorporated many of the recommendations of the BBA’s working group on criminal-justice reform.  We must now await the action of the House.  With formal legislative sessions for 2017 required to end by November 15, that chamber will hold their debate within the next two weeks.  First, though, the Judiciary Committee, led on the House side by Chairwoman Claire Cronin, is expected to release its long-awaited legislation early next week, after which Representatives will be permitted to file their own proposed amendments for floor debate.

Our working group urged lawmakers to make changes in six critical areas:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

Since the release last month of our working group’s report, we have advocated for its recommendations, with the Senate, the House, and other stakeholders.  (The final Senate bill takes positive steps in each of the above areas, though it doesn’t include all our recommendations.  For example, while we call on the Legislature to repeal mandatory minimum sentences for all drug offenses—in keeping with our long-standing opposition to virtually all such counter-productive sentences—the bill repeals only some of those.)  We will continue to do so through the House vote … and beyond, as a six-member conference committee will be named to hash out differences between the two bills.

That process could take months.  While it cannot extend beyond the July 31, 2018, end of the formal legislative session, we anticipate that House bill will forge a very different path from its Senate counterpart—both in terms of how it deals with those issues addressed by both houses, and in terms of how many issues it chooses to include in its legislation to begin with:  Whereas the Senate bill covered a wide variety of topics in criminal justice—including, for example, creation of a mandatory parent-child testimonial privilege and a measure to extend the Juvenile Court’s jurisdiction to 18-year-olds—House leadership has expressed a preference for a more limited bill.

For a refresher, the current debate was kick-started in February with the release of a report from the Council of State Governments’ Justice Center (CSG).  The Governor immediately filed a bill to enact those CSG recommendations for which legislative action was required.  And the House has since filed a new version of that bill.  They have argued that, since such language enjoys universal support, the CSG-only bill should be adopted and sent to the Governor quickly, leaving the conference committee to hash out what else may be enacted this session on criminal justice.  It remains unclear, though, whether the Senate will agree to this approach, or insist that the entire package be considered by the conferees.

As we continue to monitor developments in the House, please look for a BBA e-mail alert next week, asking you to call your Representative ahead of their vote, urging them to support action on the BBA’s recommendations.  Thanks in advance for your help!

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

ICYMI: Chief Justice Ralph Gants Delivers the State of the Judiciary

Last Week, the Chief Justice of the Supreme Judicial Court Ralph Gants, delivered his annual “State of the Judiciary” speech in the Great Hall of the John Adams Courthouse. This event, which also included addresses by Chief Justice of the Trial Court Paula Carey, and Court Administrator Jonathan Williams, always offers valuable insight into the current and future priorities of the Massachusetts Court System.

Chief Justice Gants first took a moment to extend a warm thanks to all those that help ensure a functioning court system, including the judges, clerks, administrative staff, security personnel and court officers, as well as the private bar, the legislature, and the executive branch.

Kicking things off with a recent success story, the Chief Justice also specifically thanked the House Speaker Robert DeLeo, Senate President Stanley Rosenberg, Senator Karen Spilka, and Representative Chris Walsh for their leadership in expanding the Housing Court statewide. We’ve also been calling for this expansion for the last three years and are thrilled that all the benefits of the housing court will be extended to all residents of the Commonwealth. And the benefits of Housing Court are many, including judges that are exceedingly well-versed in all aspects of often-complex housing law issues, as well as Housing Specialists, who mediate cases, facilitate settlements, and even provide on-site reviews to resolve issues with housings conditions.

The Chief Justice also discussed conflict resolution, noting the menus of litigation options currently in place at the Land Court, Probate and Family Court, and Superior Court, which allows parties to utilize alternative dispute resolution to resolve conflicts in a tailored way that takes into account the particulars of each case. As he did in the BBA Council meeting in the spring, he urged attorneys and litigants to begin making more use of these options. This focus on the efficiency of the delivery of justice led to a discussion of the need for the courts to update their information technology, and the Chief highlighted the current work being done to digitize the court experience, by increasing the use of e-filing, digital reminders, the immediate electronic transmission of judicial orders and opinions, and video conferencing.

There were two key issues in the address that garnered heightened attention: Criminal Justice Reform and the Care and Protection Crisis.

On the Criminal Justice Reform front, the Chief began by commending the work done by the Juvenile Court, the Superior Court, the District Court, and the BMC in adopting best practices in sentencing that help to ensure each defendant receives an individualized sentence that takes into account the full context of the crime, the victim, and the defendant. He also highlighted the recent American Law Institute’s adoption of a new Model Penal Code of Sentencing, which calls to end mandatory minimum sentences.

Chief Justice Gants then turned his attention to the broader debating currently taking place at the legislature. We were very pleased to hear the Chief praise our own Criminal Justice Reform Working Group report, “No Time to Wait,” noting that the report, “clearly written, thoroughly researched, and carefully considered, comprehensively describes the urgent need for reform.” For an update on where our advocacy on this report stands, be sure to check out this post.

The Chief Justice then honed in on the key take away from the Council of State Governments report released earlier this year: that effective criminal justice reform, which includes the provision of drug and mental health treatments, the earning of good time and parole, and removing barriers to reentry, does not increase the crime rate, but instead reduces it. He noted that “if we take these steps, then we can finally make a dent in [the] persistent recidivism rate and reduce the overall crime rate.”

The second headline-making item highlighted in the address is the lack of available attorneys to represent parents and children in care and protection cases. These cases arise when the Department of Children and Families (DCF) removes a child from parental custody. Based on Massachusetts statutes, each parent and child is entitled to individual representation by an attorney at an evidentiary hearing that must happen with 72 hours of the removal of custody to determine whether DCF’s temporary custody will continue until resolution of the matter. In the Western part of the state, the crisis is especially severe, and since March of 2017, nearly half of the 72-hour hearings have been continued based on an inability to find attorney to represent all necessary parties. Given the severity of the problem, both in Hamden County and the rest of the state, the Chief stated “it is time to recognize this for what it is – a constitutional emergency.” He urged a concerted effort from CPCS, the bar, law schools, and the legislature to find new ways to reach, train, and encourage more attorneys to take on these cases.

The Chief wrapped up his speech by noting one theme that applied to all of the topics covered in his afternoon speech: “our ongoing effort as a court system to rethink how to make the legal process fairer, more efficient, and more effective in solving the problems of the people who come before us.” We commend this ongoing effort and look forward to continuing our support for the Judicial Branch and finding new ways to contribute to a fair, efficient, and effective court system here in the Commonwealth.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

We often help facilitate the collection of comments on various proposed amendments to court rules and orders from our Steering Committees, who can weigh in with their specific practice area expertise and experiences.  As part of this process, we were pleased to recently submit comments on behalf of the Ethics Committee and the Family Law Section Steering Committee on proposed amendments and a new protocol.

Proposed Amendments to Supreme Judicial Court Rule 3:12

In September, the Ethics Committee discussed these proposed changes to the Code of Professional Responsibility for the Clerks of the Courts. The Rule governs the norms of conduct and practice for persons serving as Clerk-Magistrates, and the amendments were drafted in light of recent changes to the Code of Judicial Conduct. The Supreme Judicial Court formed a working group to consider whether similar changes should be made to the Code governing clerks, and the amendments are based on the working group’s recommendation to revise the provisions of the Clerks’ Code that are more restrictive than those in the Code of Judicial Conduct.

The Ethics Committee comments began by noting that, overall, the proposed changes were reasonable.  Members, however, did note a few ambiguities that could be worth clarifying in the final version of the rule. For example, the Committee commended the addition of language providing that  “a Clerk Magistrate may make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard,”  but wondered why this addition was “may” instead of “shall” and noted that the meaning of “reasonable efforts” was vague and open to diverse interpretations.  In addition, Committee Members felt aspects of Canon5(f) which explains when a Clerk Magistrate can accept free or discounted legal services, were a bit confusing, and that  the provision as a whole could benefit from further explanation and clear language.

Proposed Uniform Practice XXXV Change of Name Actions

Last month, the Family Law Section Steering Committee offered comments on Proposed Uniform Practice XXXV for Change of Name Actions in the Probate and Family Court. As provided in the solicitation, “the uniform practice was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults.”

Members of the Steering Committee first noted the challenges that often accompany change of name actions and commended the Probate and Family Court for offering guidance and uniformity in this process by drafting the proposed practice. Overall, members felt the proposal offered much-needed clarity and expressed optimism that it would benefit practitioners and petitioners pursuing change of name actions.

Some members, however, did feel there were a few outstanding challenges related to change of name actions that could perhaps be improved by inclusion in the final Uniform Practice. For example, one member felt the proposal could help to resolve the confusion that often arises when an individual who has been married multiple times attempts to resume a prior name that is not the name of the most recent former spouse, as currently individuals are sometimes forced to  choose between that name and the name of the current spouse. Another member felt the proposal could specifically provide clarity when an individual seeks to change their entire name (and gender makers) simultaneously with a divorce proceeding. Finally, a member noted that the proposed Uniform Practice could be more clear as to where an action should lie when a child resides in one county and the parent filing the petition on behalf of the child resides in another county.

We look forward to seeing the final versions of these proposals and whether any of the issues addressed by our members are reflected in the final iterations. A special thanks goes out to the Ethics Committee and the Family Law Section Steering Committee for their thoughtful analysis, and to co-chair of the Family Law Section, Lisa Wilson of Wilson Marino & Bonnevie, and co-chair of the Ethics Committee, Paul Tremblay of Boston College Law School, for their excellent report on the  comments to the BBA Executive Committee.

Get Involved

Of course, these requests for comment are open to the public, and we encourage our members to submit their own comments when they have particular insights or concerns.  You can stay up to date on both the notices inviting comment and rule changes by visiting this page. If you have any questions about the comment process, please contact  adaniel@bostonbar.org.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

A2J Update: Legal Services Corporation Comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council

Last week, we updated you on the Third Massachusetts Access to Justice Commission and its year ahead. This week, we are continuing the access to justice theme by offering recaps of two civil legal aid-oriented items: the Legal Services Corporation (LSC) hosted its quarterly board meeting in Cambridge and the Equal Justice Coalition stopped by the BBA Council to preview the upcoming budget campaign and Walk to the Hill in January.

LSC Quarterly Board Meeting

Four times a year, the LSC convenes its Board in cities across the country, and this week, the Board of Directors Quarterly Meeting came to Cambridge. As you may know, the LSC is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million. Here in Massachusetts, we receive approximately $5 million, distributed to four different providers of legal aid. For years, the LSC has been level-funded, while the need for legal services has increased significantly. The LSC found, in its 2017 Justice Gap Report, that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help, and our own Investing in Justice Task Force report found that, here in Massachusetts, approximately two-thirds of qualified individuals must be turned away due to a lack of resources.

Each year, the BBA President and President-Elect head to Washington, D.C., as part of ABA Day, to advocate for LSC funding. This past year, that ask felt especially important as the White House had proposed zeroing out the full LSC line-item. Even as a state that doesn’t rely on LSC funds for the majority of its civil legal aid funding, a $5 million cut to legal services would represent a massive hit to the Commonwealth, especially since it would likely go hand-in-hand with cuts in other services that only drive up the need for legal services. Thankfully, Congress chose to level-fund LSC for the remainder of the year. As the 2018 budget talks begin again, however, the situation remains uncertain. For a crash course on the federal budget process, especially as it relates to legal aid funding, be sure to listen to our Issue Spot podcast, The Federal Budget Process 101.

Forum on Access to Justice

The Forum, consisting of four distinguished panels, highlighted access to justice issues from a range of angles.

First up, a panel entitled “Natural Disasters, Legal Aid, and the Justice System,” convened Moderator Judge Jonathan Lipmann, who was the Chief Judge of New York during Hurricane Sandy, Chief Justice Nathan Hecht of the Supreme Court of Texas, where Hurricane Harvey recently hit, and Chief Justice Jorge Labarga, of the Florida Supreme Court, where Hurricane Irma recently hit. You can view this full panel, along with those mentioned below, on the LSC Facebook Page.

Both Justices spoke of the need for court systems to prepare as much as possible for all types of disasters but also to remain flexible to adapt to each particular situation. They highlighted the legal challenges facing the judiciary in these moments of crisis, some of which can be addressed by administrative orders, like those related to statutes of limitations or speedy trials, while others require legislative fixes or public education, to inform impacted communities of their rights and where they can access legal services if they need them. In relation to education, the Justices also stressed the new role of social media and highlighted the need for courts to ensure their communication plans are updated and adaptive to these types of events. They additionally spoke on the role of legal aid organizations, noting that these providers will bear the brunt of the burden in addressing recovery as these disasters will cause the demand for civil legal services to greatly increase.

Finally, the Justices also mentioned the role that the bar can play in these moments, pointing to the associations as a source of access to attorneys and a centralized point of communication. Texas waived the admission requirements for pro bono attorneys licensed to practice law in a different state but seeking to help victims of Hurricane Harvey. Interestingly, the ABA’s Committee on Disaster Response and Preparedness has established resources, policies, and information for the legal community, including a list of resources for bar associations.

The other panel discussions also addressed significant access to justice issues facing both the country and Massachusetts in particular. For example, “The Importance of Access to Justice to American Business” panel drew General Counsel from a range of companies like GE and Raytheon, including former BBA President Paul Dacier, formerly of EMC Corporation and now of Indigo Agriculture. Last week, we mentioned the Massachusetts Access to Justice Commission’s work on the Justice for All Project, and the Panel entitled “The Justice for All Project: An Overview,” provided a macro look at the goals of this national project and a local take with Chief Justice Ralph Gants offering insights into the Massachusetts-specific undertaking. Finally, deans from seven law schools, including BBA Council member Dean Vincent D. Rougeau, of Boston College Law School, discussed “Law Schools’ Work and Access to Justice,” highlighting what schools can do to foster students who choose law school activities and careers that prioritize increasing access to justice.

Following these enlightening panel discussions, the LSC hosted a Pro Bono Awards Reception, honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations, including Susan Finegan of Mintz Levin, a former BBA Council member and member of our Statewide Task Force to Expand Civil Legal Aid, for her work with Volunteers Lawyers Project of the Boston Bar Association (VLP), Michael Castner for his work with South Coastal Counties Legal Services, Norma Mercedes for her work with Northeast Legal Aid, the law firm Community Legal Aid, and a posthumous award for Terrell “Terry” Iandiorio for his work with VLP.

We were thrilled that President-Elect Jonathan Albano was invited to speak before the awards were presented. These remarks followed an interesting update by Dean Andy Perlman of Suffolk University Law School, who spoke on his work as Chair of the Governing Council of the ABA Center on Innovation. Jon Albano noted that though pro bono would never be enough to fully bridge the justice gap, it was more crucial than ever given the uncertain federal funding forecast and the expanding legal needs of many vulnerable communities. The work of the honorees and others, who devote their time to pro bono efforts, expands the reach of those legal aid organizations that offer civil justice for individuals facing dire circumstances, from eviction, to domestic violence, to deportation, to the loss of necessary health care services and other public benefits. Here at the BBA we have long understood the critical importance of pro bono work in expanding access to justice through our legal system and support that work by training and educating volunteer attorneys who make the commitment to take on those cases.

EJC Addresses BBA Council 

In addition to our work expanding and promoting pro bono work and federal legal aid funding, we also, as you are well aware, advocate for adequate legal funding at the state level. As this advocacy begins for the coming year, the BBA Council was fortunate to be joined by Chair of the Equal Justice Coalition (EJC), Louis Tompros of WilmerHale, and Director of the EJC, Laura Booth. Louis and Laura offered an overview of the current state of funding in the Commonwealth and a preview of the EJC FY19 budget campaign for adequate Massachusetts Legal Assistance Corporation (MLAC) funding. Specifically, they highlighted the need for increased funding for MLAC, given recent federal actions, including expanded immigration enforcement, which will increase demand for civil legal services. They also offered helpful insights into just how one goes about discussing this need for funding with legislators, which was also the theme of a podcast last year, featuring Louis himself.

A key piece of this budget advocacy is the annual Walk to the Hill for Civil Legal Aid when, each January, hundreds of attorneys head to the State House for one of the largest lobby days in the Commonwealth. These attorneys hear speeches from the judiciary, the bar, and those helped by legal aid funding and then head out to speak to their legislators, urging them to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents.

Louis and Laura brought a few specific requests in relation to this important event, which will take place on January 25, 2018. First up, they stressed just how important a major turnout is in signaling the continued importance of civil legal aid to Massachusetts representatives and senators. Second, they stressed that even more important is ensuring that all those who took the effort to attend, actually head out to speak to their own legislators, and/or their staff. This day is most effective when legislators hear from many of their own constituents about the importance of MLAC funding from a local level. Finally, Louis and Laura stressed the importance of fully utilizing social media this year, which will help to get out the word about the importance of civil legal aid generally, and encourage more people to join the call for civil legal aid funding.

For a full rundown of just how important this effort is, check out this post, and be sure to read and listen to recaps of last year’s Walk to the Hill and stay tuned for how you can get involved. If you are interested in learning more, feel free to contact me at adaniel@bostonbar.org . Or reach out to the EJC for information about finding, or starting, your own team.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association