Pro Hac Vice Proposal Aims at Bolstering Legal Aid Funding

The news about IOLTA revenue, a key source of funding for legal aid to the poor, is grim and getting worse.  Enter the pro hac vice admission fee proposal of the Massachusetts Access to Justice Commission (AJC).

This week, the BBA Council voted to support the AJC’s proposal that would boost funding for legal services programs.  If approved by the Supreme Judicial Court, Massachusetts would join 41 other states and the District of Columbia in instituting a pro hac vice admission fee.  While the Board of Bar Overseers will retain a portion of each fee to cover administration costs, the remainder of the $300 will go to the IOLTA Committee.  IOLTA will then distribute it in the same proportions as other IOLTA revenue – to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation and the Boston Bar Foundation – for use in providing civil legal assistance to low-income residents of Massachusetts.

The reason for instituting a pro hac vice fee is twofold.  It will help create a central listing of these types of filings and maintain records relative to the number of pro hac vice filings.  More importantly, it will help legal aid by plugging a little of the funding gap.  Though it’s difficult to predict exactly how much money the pro hac vice fees will bring in, based on the experiences of Texas and Pennsylvania, Massachusetts could collect between $300,000 and $500,000 annually.

Take a look at the frightening facts.  IOLTA revenue is down – way down.  So far in calendar year 2011, IOLTA has only collected $7 million.  This is a $24 million drop from the revenue collected in 2007.  And, in the last 3 budget cycles MLAC has been funded at the FY2008 level of $9.5 million, which has not prevented large-scale reductions in staff and service capacity for legal assistance organizations.  The average MLAC-funded civil legal aid program has had to cut 25% of its attorneys – some have lost up to 40%.  Meanwhile, demand for these services has increased dramatically.  In the past year, 94,000 more individuals and families became eligible for civil legal aid.

And the federal landscape for legal services is even bleaker.   A Congressional agreement for FY2012 being taken up on the House floor this week would provide $348 million to the Legal Services Corporation (LSC), a 13.9% cut to LSC’s overall funding.  There’s also the Supercommittee that needs to find ways to cut $1.5 trillion before itsNovember 23rd deadline.  If the Supercommittee can’t work out a deal, automatic cuts would be made to defense and domestic programs equally.  Any reduction to LSC in this process would guarantee that more Massachusetts residents in need of legal services will be turned away.

In today’s economic climate, everyone is hurting and the government is no exception.  But civil legal assistance is a vital safety net for families facing foreclosure and eviction, victims of domestic violence, veterans returning from combat, residents affected by recent natural disasters and other vulnerable members of our communities.  While the adoption of a pro hac vice admission fee will not alone solve the problem, it will help offset some of the devastating losses in funding for legal services that have recently occurred.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

BBA Signs on to Amicus Brief Challenging DOMA

It’s been nine years since the BBA staked out its position on same-sex marriage in its amicus brief filed in the landmark Goodridge v. Dept. of Public Health. The BBA reiterated its position on same-sex marriage when the organization signed onto an amicus brief last week.   The latest brief – filed in the US Court of Appeals for the First Circuit – challenges the federal Defense of Marriage Act (“DOMA”).  The BBA joined 30 other groups – the ACLU, the National LGBT Bar Association, the Human Rights Campaign and the Equal Justice Society to name just a few – on this brief that involved a constitutional challenge to DOMA.

Section 3 of DOMA provides that for the purposes of all federal laws, “marriage” and “spouse” are defined to exclude married same-sex couples, even if those marriages are legal under state law.  In 2004, Massachusetts became the first state in the country to end the exclusion of same-sex couples from civil marriage.  The BBA has approached this purely as an issue of civil rights and universal access to justice.  Consistent with the BBA’s commitment to ensuring equal protection for all people, the amicus brief argues that classification based on sexual orientation must be subjected to heightened scrutiny.

Why now?

The legal challenge to DOMA in the two federal cases, MA v. U.S. Dept. of Health and Human Services and Nancy Gill v. Office of Personnel Management, sparks a seminal moment in the evolution of the same-sex marriage issue.  The BBA continues to lead on the issue and believes that it can be uniquely persuasive as a legal organization through filing amici.

Back in February 2011, as discussed in Issue Spot, the Obama Administration decided to no longer defend DOMA – leading Massachusetts Attorney General Martha Coakley to file a lawsuit challenging the law that bars federal recognition of same-sex marriage.  In the absence of the Department of Justice defending the law, the Bipartisan Legal Advisory Group of the House of Representatives announced it would intervene to provide the defense.  What has followed has been a protracted process.

The fate of DOMA is now in the hands of the US Court of Appeals for the First Circuit.  DOMA should be found unconstitutional.  We look forward to the day when Massachusetts does not belong to a small list of states recognizing same-sex marriage, but rather is part of a nation that fully supports the idea of equality under the law.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Let’s Not Revisit the Tax on Legal Services

The new Tax Expenditure Commission, created by Outside Section 160 of the FY12 budget and chaired by Secretary of Administration and Finance Jay Gonzalez, will meet regularly over the next six months to study the Commonwealth’s $24 billion tax expenditure budget.  The process includes reviewing all tax breaks, tax credits, sales tax exemptions and corporate deductions in an effort to measure the effectiveness of these carve-outs.  The recommendations of the Tax Expenditure Commission are due by April 30, 2012.

In addition to reviewing the current tax expenditure budget, the Commission has been charged with issuing recommendations regarding any changes to the current tax expenditures and criteria for new tax expenditures.  Since there has been no increase in broad-based taxes since the sales tax hike in fiscal year 2009, this could potentially mean a renewed interest in adopting a tax on legal and other professional services.

This would not be the first time Massachusetts has experimented with the misguided idea of instituting a tax on legal services.  The idea of a services tax was first proposed in 1975 but ultimately not adopted by the legislature.  Soon after, a coalition in favor of the tax sought to have a referendum put on the ballot.  In conjunction with other professional groups, the BBA launched a campaign to educate the public about the economic effects of such a tax – that clients, rather than firms, would absorb the overwhelming majority of the burden.  A legal services tax would fall disproportionately on those least able to afford legal representation, thereby limiting access to justice.

In the early 1990’s the issue came to a head when a sales tax on legal services actually passed in the state legislature and was signed into law.  Amid revelations that this tax would apply not just to services  provided by attorneys, accountants and other professionals — but also to such services as lawn mowing and snow plowing — support for repealing the tax increased.  The BBA, joined by the MBA, mobilized its members and focused its efforts on informing the legislature and incoming Governor Weld of the economic and legal flaws in a services tax.  Groups representing other segments of the professional community worked on this too and, two days after the tax took effect, Governor Weld signed legislation repealing the services tax.

Of primary concern for the BBA is the constitutionality of such a proposal.  The right to obtain the services of an attorney is a natural right guaranteed by the United States Constitution and is immune from the imposition of an excise tax.

There are also other compelling arguments to be made against a legal services tax.  A sales tax would compromise the attorney-client relationship by requiring an attorney to act as a tax collector and submit sensitive client information to the Department of Revenue.   Rather than serving as an advocate in a confidential relationship, an attorney would be forced to share privileged information with third parties.

We’ll watch closely now as the Tax Expenditure Commission continues to meet.

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Inadequate Funding Threatens Delivery of Justice in MA

When the BBA speaks publicly about the state budget, we are generally talking about funding that impacts the Massachusetts legal system.  Specifically, that means advocating for funding for: the Committee for Public Counsel Services (CPCS), District Attorneys’ offices, legal services and the Judiciary.  It is incumbent on us – the private bar – to ensure that these four groups receive the resources necessary to function properly.  The BBA advocates annually for these groups and, lately, our advocacy efforts have continued year-round.

The demand on the legal system has never been greater.  At a time when governments are forced to slash budgets, more people who depend on public services are being turned away.  The legal system is often a place of last resort where people exercise their constitutional rights to seek relief in areas of housing, children’s services, employment matters, etc.  All across the board – from public defenders to prosecutors, from legal service attorneys to the courts – the legal system has suffered heavy losses in resources while trying to stay on top of rising caseloads.

Here’s why we need these four areas of the state budget adequately funded:

The right to appointed counsel for indigent persons is fundamental under our federal and state constitutions.  Massachusetts is obligated to provide competent legal counsel to every indigent person charged with a crime punishable by imprisonment, and CPCS is the state agency that manages these responsibilities.  The size of the budget needed to fulfill this obligation is dictated by the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In line with our commitment to the right to counsel is our commitment to ample funding for the prosecutors’ offices that seek justice in every case.  Without adequate funding for the state’s eleven district attorneys’ offices the effective prosecution of crime in Massachusetts would surely be compromised.

State funding for civil legal services is, in part, appropriated through the Massachusetts Legal Assistance Corporation (MLAC) line item.  MLAC is the largest funding source for civil legal aid programs in the Commonwealth, funding 17 legal aid programs that provide information, advice and representation to low-income people with critical, non-criminal legal problems.  Though MLAC also receives money from IOLTA revenue, the decline in real estate transactions – the largest contributors to IOLTA accounts – has caused this source of revenue to fall dramatically.

At the core of our legal system is the Judiciary, without which justice simply could not prevail.  As a separate branch of the government, the Judiciary is fully dependent on tax dollars for its operation.  The Massachusetts state courts are funded through state budget appropriations.  Today, the Governor signed a supplemental budget that provides some additional money to our woefully underfunded courts. But it’s still not enough.  The additional funding gives the courts some relief from the mounting pressure to do more with less.  It is welcome news to those who have become accustomed to budgetary disappointment.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association

Let’s Be Smart About Sentencing and Parole

The stakes are high when we begin talking about public safety, crime prevention and the overall functioning of the Massachusetts criminal justice system.  Rhetoric like “tough on crime,” “three strikes and you’re out” and “if you do the crime, you do the time” are often bandied about when criminal justice reform appears on the horizon.

This week’s Boston Globe editorial, “Curb parole for violent crime, but rethink drug sentencing,” urged lawmakers “to create a stronger, fairer, and more economical criminal justice system.”  While saying this will necessitate an “approach that cracks down on violent offenders while taking a fresh look at nonviolent drug offenders,” the editorial  speaks to the importance of understanding the dynamic  relationship between mandatory sentencing, parole and prison cell availability.

A bit of background. . .

Even before the Boston Bar Association published its 1991 report, The Crisis in Corrections and Sentencing in Massachusetts,  the BBA has been on the forefront of discussions on how to make the MA criminal justice system more effective.  We have long taken the position that mandatory  minimums and their “one-size-fits-all” approach do not allow for judicial discretion to impose sentences that actually fit the crime.

We have yet to see the Senate bill to which the Globe editorial alludes.  All we know is that the bill is expected to be taken up for consideration and a vote by the full Senate soon.  While it’s unlikely there will be a public hearing on this particular bill, nobody can say it’s come out of left field.  Let’s review a bit of recent history:

  • December 2010 – A parolee released from a triple life sentence killed Woburn police officer Jack Maguire.
  • January 2011 – All five members of the parole board, including the Executive Director, resigned.  The governor, several legislators and a district attorney dusted off their own habitual offender bills and filed them in the legislature, producing an array of bills aimed at making changes to the current laws.
  • September – All of these sentencing bills generated hours of public testimony at a hearing before the Judiciary Committee.
  • Right now – A bipartisan group of senators, appointed by Senate President Murray over the summer, is at work producing a soon-to-be released parole bill.

What we do know from our more than 20 years of work in this area is that any parole reform or habitual offender bill that does not take into consideration mandatory minimum drug sentences is bad public policy.  Parole and habitual offender reforms should be a part of a comprehensive crime package – but one that should include sensible mandatory minimum sentencing reform for drug offenses – because of the interrelatedness of our criminal justice system’s components.  Parole reform, habitual offender legislation and sentencing reform are inextricably connected and the time has come for Massachusetts to implement measured change in this area.

 

-Kathleen Joyce
Government Relations Director
Boston Bar Association

Probate Bills Move Forward

Last Wednesday, in hearing room A-1 of the State House, the Judiciary Committee heard public testimony on 164 bills related to the broadly defined category of “crimes.”  Spanning the better part of the afternoon, the testimony addressed issues ranging from Governor Patrick’s high-profile gun crime bill to reinstating the death penalty to strengthening animal abuse laws.

Meanwhile, upstairs on the floor of the House, the details of a supplemental budget appropriation, which included $12 million in direct funds and $8 million in retained revenue fee collections for the Trial Court, was taken up and passed with a vote of 149-1.

While the supplemental budget and the crime bills captured the headlines the next day, the Judiciary Committee polled its members on the Massachusetts Uniform Probate Code (MUPC) technical corrections bill and the Massachusetts Uniform Trust Code (MUTC).  Both bills were ultimately reported out of committee favorably today.  These two pieces of legislation have been at the forefront of the BBA’s public policy agenda for years and represent the culmination of the efforts of task forces and a significant number of stakeholders.  We are encouraged that both bills have begun to move, particularly during such a busy and pressure-filled week for the legislature.

As of today, just 80 days remain until the estates portion of the MUPC takes effect; the guardianship portion became effective on July 1, 2009.  A delay in passing both the MUPC technical corrections and the MUTC legislation will result in unnecessary compliance costs, while also putting greater strain on an already overburdened Probate & Family Court.  The Court has been working around the clock to prepare for the implementation of the MUPC and any delays will only undermine their efforts to achieve a smooth transition.

Both bills address some of the shortcomings of the Commonwealth’s current trusts and estates statutes.  Although the two pieces of legislation are neither flashy nor easy to explain to non-lawyers, both are much-needed, commonsense measures seeking to ensure that soundness and equity prevail in Massachusetts law.  It is critically important to the bench, bar and the public that the legislature acts soon.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

Chapter 11 Bankruptcy Venue Reform Gains Momentum

This week, Wilbraham-based Friendly’s Ice Cream Corporation announced that it would close 63 locations as it seeks to reorganize under Chapter 11 bankruptcy protection.  Friendly’s has a long history in Massachusetts, starting with its founding in Springfield in 1935.  Despite its local roots, Friendly’s joins a growing list of Massachusetts companies – including Polaroid and Evergreen Solar – who have filed for bankruptcy protection in Delaware.

Once upon a time companies were required to file for bankruptcy where their corporate headquarters or corporate assets were located.  Then Congress expanded those choices to also include where the company is incorporated or the place a corporate affiliate has previously filed.  While the expanded statute gives courts the power, on request, to overrule venue choice if it is inconvenient or unfair, an employee trying to save her job or pension is ultimately unlikely to petition the courts.

Since 2005, federal legislation to curb venue shopping has been filed and H.R. 2533, The Chapter 11 Bankruptcy Venue Reform Act of 2011 was introduced again this session.  The bill would require corporations to file for bankruptcy protection in the judicial district where they have their principal place of business.

Supporters of the bill say that companies should be forced to reorganize close to home, so that local employees and creditors can more easily participate in the bankruptcy process.

Opponents have pointed to the fact that anyone can file a motion for change of venue.  In reality, doing so is not only inconvenient but expensive.  In previous sessions, a notable opponent was former Delaware Senator Joe Biden.  This session, the Bar of the City of New York has opposed the bill.  Both Delaware and the Southern District of New York seem to enjoy a monopoly on these types of cases.  It is said that an overwhelming majority of these cases are filed in those two districts.

Early indications suggest that this legislation may actually have the momentum to pass this session.  In September, the House Subcommittee on Courts, Commercial and Administrative Law held a hearing on the bill.  Among those who testified was Chief Judge Frank J. Bailey of the United States Bankruptcy Court for the District of Massachusetts.  Chief Judge Bailey testified on his own behalf, travelling to Washington D.C. at his own expense, and pointed to the serious unintended consequences of the current law.

The BBA is reviewing this legislation.  The Bankruptcy Section has already voted to support the legislation and it should be on the BBA Council’s agenda next month.

By filing hundreds or thousands of miles away from their headquarters, companies disenfranchise employees, marginalize pensioners and disregard stakeholders who have invested heavily in the corporation.

Big corporations like Friendly’s really are part of their local communities – they employ residents, contribute to the local economy and pay taxes to local governments.  Communities, like Wilbraham, take pride in their association with and commitment to their businesses.  Bankruptcy venue shopping is not just a loophole – it violates a community’s trust.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Legal Services Corporation Needs a Lifeline

This week BBA President Lisa Goodheart sent a letter to Senator John Kerry and the rest of the Massachusetts Congressional Delegation requesting support and protection for the funding of the Legal Services Corporation (LSC).  As written about before on Issue Spot, support for legal services is a core part of the BBA’s mission and is a vital service to some of the most vulnerable people in society.

Funding for civil legal assistance in Massachusetts is a partnership between federal, state and local governments as well as private attorneys and foundations.  The current economic climate has led to a substantial drop in resources for LSC programs due to both a 50 percent decrease in IOLTA revenue over the past two years and budgetary constraints among state and private contributors. All this comes at a time of unprecedented need – more than 1 in 5 Americans now qualify for legal assistance.

Legal services funding is not merely a spending issue.  LSC-funded programs in Massachusetts provide critical legal services to individuals who need it most, including victims of domestic violence, veterans returning from combat, those coping with the after-effects of natural disasters, persons with disabilities, and individuals undergoing foreclosures and evictions.  LSC funds four programs in Massachusetts – the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy – all of whom have already absorbed massive cuts to their budgets and staff.

Why is LSC funding in jeopardy now?  It all goes back to August when Congress, reaching a last-minute compromise on the debt ceiling crisis, established the Joint Select Committee on Deficit Reduction.  The Committee is made up of 12 lawmakers – including Massachusetts Senator John Kerry – who have been tasked with finding $1.2 trillion in budget savings by November 23rd.  If the Committee is unable to come up with the necessary savings, the difference will be made up by automatic spending cuts, divided evenly among domestic and defense programs.

Senator John Kerry and, in general, the Massachusetts Congressional Delegation have been supportive of legal services.  They understand that legal aid attorneys provide meaningful representation to people who have no place else to turn.  Despite the presence in Congress of legal aid advocates who appreciate the importance of legal services, the fiscal situation before the Committee is daunting.  Funding cuts threaten to adversely impact our neighbors, friends, families, and communities.  We need to do everything we can to ensure that the citizens of Massachusetts are able to receive the legal assistance they need.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

 

Innovative Pilot Program Lends a Hand to Struggling Courts

At a recent meeting with our new President, Lisa Goodheart, we heard firsthand from staff and the First Justices of the Boston Municipal Court.  Inadequate funding of our state courts has hit the BMC hard.

All eight of the BMC’s First Justices described to us the drastic impact the budget crisis has had on the BMC and its ability to administer justice.  Inadequate staffing levels and the consequences of a hiring freeze have led to more delays in the processing of cases, increased security risks in courthouses, and low morale among hardworking employees who are troubled by the fact that it’s virtually impossible to provide adequate public services in a timely and effective manner.

So what’s a bar association to do?  It’s now a given that we advocate for adequate funding for the courts on a year round basis.  We also need to find creative ways to help fill the gaps left by a shrinking budget.

The district court clerkship program – a pilot partnership established by the BMC, with the help of BBA Diversity and Inclusion Section’s Co-Chair Macey Russell – does just that.

This pilot venture began with one purpose – to increase diversity in the legal profession and provide opportunities for minority law students.  But the program has also helped ease some of the negative effects of an underfunded judiciary, while mitigating the impact of a hiring freeze on court employees at no cost.  It was refreshing to hear about the positive experiences the BMC’s First Justices have had with the 3Ls that have been matched with them.

It’s a win-win situation.  The judges are thankful for the assistance, and the student interns have had fantastic experiences with invaluable mentoring from the judges.  Any assistance with the court’s workload is helpful.  The BMC’s First Justices appreciate having resourceful law student interns in their courts.

To date, the program has helped place over 20 students with judges around Boston.  If only a handful of clerkships at a single court can make a difference, imagine what the effect of an expanded program would be.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Permanent Campaign for Court Funding Revs Up

As we wait to see whether the Massachusetts legislature will throw the Judiciary a life line – in the form of a supplemental budget with funding to fill the egregious gap between what our state courts need and what the legislature appropriated – we need to gear up for the future.  Not surprisingly, Fiscal Year 2013 is shaping up to be every bit as difficult as the past two fiscal years.  The BBA is in the throes of what it now realizes is a “permanent campaign” to secure adequate funding for equal access to justice in Massachusetts.

Nearly every constituency grows organically. For example, when state university students lobby for increased funding for higher education, hundreds of students at Massachusetts’ public universities — along with faculty and staff members – arrive by the busload and fill the halls of the State House. They tell stories about what would happen if funding were to be cut from their line items.  This grassroots effort yields results!

It’s a different story for the Judiciary.  If you believe the courts have no constituency aside from lawyers, you’re only half right.  Yes, a court is usually a place of last resort.  Most litigants go kicking and screaming after other efforts to resolve their conflicts have been exhausted.  Most people are not particularly happy about going to trial, and in fact many of them come out feeling even worse when they see the result.  When the Judiciary makes its annual funding request to the legislature, the group most inclined to take up the cause and carry the torch is a small one.

One other constituency that understands the gravity of the situation facing our state courts and the value of a properly funded judiciary is the business community.  In recent years, the Business Litigation Session has taken on a healthy caseload, demonstrating its value in making Massachusetts a more predictable place to do business.  Yet the lack of proper funding threatens even the Business Litigation Session.  Business leaders know that time is money.  They know all too well that for their employees using the court system to resolve their own personal disputes or serve as witnesses, court delays mean a loss of productivity, which in turn hampers competitiveness.

Each of the last two years, Paul Dacier, Executive Vice President and General Counsel of EMC Corporation, has rallied other general counsel to plead the case for adequate court funding.  To his credit, Paul recruited twenty-three other general counsel in 2010 and twenty-nine general counsel in 2011 at leading Massachusetts companies  – including John Hancock, Fidelity, Partners HealthCare System, National Grid, TJX, BJ’s Wholesale Club, and others – to sign onto a letter supporting funding for the courts.  While the signatories represent companies across Massachusetts, they are also lawyers and part of the constituency that understand the consequences of under funded courts.

-Kathleen Joyce

Government Relations Director

Boston Bar Association