The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Debunking Legal Aid Myths

On Monday, the Boston Herald’s website ran an item from the Associated Press mentioning Supreme Judicial Court Chief Justice Ireland’s support for civil legal aid and his appearance at the Equal Justice Coalition’s annual Walk to the Hill.  The 4-sentence story generated a few reader comments demonstrating how little some people know about the important work of legal service lawyers in Massachusetts.

Sure, lawyers can be easy targets for people venting their frustrations, but sometimes that venting defies reason.  “If you (Chief Justice Ireland) and all your lawyer buddies who make mad money by charging crazy amounts/hour are so into helping the poor, then do it for free,” wrote Boston Dave.

Some lawyers certainly make good money working at private law firms. But really, BostonDave, those who dedicate each of their days to providing legal services to the poor barely enough to make ends meet.  Legal services organizations are hurting and the poor people that need legal services the most are hurting badly.

Another ill-informed Herald reader referenced the recent coverage of the MBTA putting cameras on buses and trains to stop people from filing frivolous law suits:  “I suppose that the MBTA can expect to see a gigantic rise in the filing of lawsuits, despite the presence of cameras in the buses,” wrote Jestme7284. “Now the people with the free lawyers will check to see if there is a camera before falling down.”

Just for the record, Jestme7284, legal service lawyers don’t do personal injury cases, which are handled by the private bar, typically on a contingency fee basis. Legal services lawyers represent clients in cases involving fundamental sustenance, such as housing, employment, access to government benefits, and domestic violence.

A word about the attorneys at big firms that show up at Walk to the Hill…Many of these lawyers give generously of their time, accepting pro bono assignments from organizations such as the Volunteer Lawyers Project. They also give generously of their money to charities providing legal aid for poor people.

At the Walk to the Hill event, they will take the time to meet with their legislators to talk about the importance of public funding for legal services.  Walk to the Hill is a symbolic showing of the legal profession’s solidarity in recognizing that everyone deserves access to justice – and not just those that can afford lawyers.

Unfortunately dumb jokes and ill-informed comments about lawyers are nothing new. But legal aid for the poor should be the one thing that all of us can agree is a good thing.  Alas this year the weather didn’t cooperate, and Walk to the Hill has been rescheduled for Tuesday, February 22nd.  We hope you’ll show up and demonstrate your support for legal services.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Briefs, Bills, and Budgets

Last Friday, January 21st, the Boston Bar Association filed an amicus brief in a case now pending before the Supreme Judicial Court, Fathers & Families, Inc. v. Chief Justice for Administration and Management. Our brief argues that the Massachusetts Child Support Guidelines are constitutional, and that Striking down the Guidelines would lead to uncertainty, instability, and inefficiency in awarding child support, and could jeopardize Federal Funding for the Commonwealth’s Public Welfare Programs. Amicus briefs are just one of the ways in which the BBA articulates its positions on matters of public policy.   

Last Friday was also deadline for filing bills with the Massachusetts legislature.  After a little scrambling and some starts and stops, we proved successful in securing sponsors on both the House and Senate side of the Legislature for each of the BBA’s proposed pieces of legislation. . 

All in all, almost 5,400 bills were filed for the new 2-year session. As legislators review the bills that have been filed, and determine their priorities for the new session, they are waiting for the Speaker of the House to announce his leadership team and committee assignments.   The Senate President has already announced her new team, renaming Senator Cynthia Creem as Senate Chair of the Judiciary Committee and promoting Senator Stephen Brewer to Chair of the Senate’s Ways & Means Committee.

Making our case for issues that are important to the private bar starts with filing our bills and with reaching out to the people in the legislative and the executive branches that can be our voice on these and other issues.  Traditionally, the governor’s Chief Legal Counsel is the person that provides legal guidance for the governor and serves as a trusted advisor on issues that affect the courts and legal services.  We met with Governor Patrick’s new Chief Legal Counsel Mark Reilly this week to discuss the BBA’s priorities for the legislative session and ways in which the BBA can work with his office on common interests.  This was a productive meeting and Mr. Reilly understands how important it is for him to be a voice for the courts and for the people who use the courts.  We look forward to having him join us at one of the next BBA Council meetings. 

Also this week, Governor Patrick released his budget and unveiled his criminal justice reform package which includes a repeal of mandatory minimum sentences for non-violent drug offenses that do not involve guns or children.  The governor’s bill also allows non-violent drug offenders to become eligible for work release, to earn good conduct credits, and includes a provision to allow offenders to become parole eligible after serving ½ of their maximum sentence. 

Other bills to repeal mandatory minimums have been filed by Senator Creem, Senator Steven Tolman and Representative Benjamin Swan.  The BBA supports reforming the mandatory minimum sentencing laws in Massachusetts and this issue will continue to be a priority for the BBA this session. 

Amid the painful budget cuts, there was some good news in the governor’s budget.  The governor level funded legal services. While this is great news for legal aid in Massachusetts, we hope that as the House and Senate prepare their own budgets they will also recognize the importance of legal services.

 As noted in this space last week, on Wednesday, February 2, the BBA is co-sponsoring the annual Walk to the hill for Civil Legal Aid at the State House. Chief Justice Roderick Ireland of the Supreme Judicial Court will join us. 

Given the importance of public policy issues concerning access to justice and the administration of justice, we count on you for your support.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Why Walk to the Hill?

February 2nd will be the 12th annual Walk to the Hill for Civil Legal Aid.   Walk to the Hill is a powerful and symbolic statement from the Massachusetts legal community that demonstrates the profession’s dedication to the principle of “justice for all.” 

But after 11 years it’s natural to ask if this event is even necessary.  Do legislators pay attention?  Has it gone stale?  Do we make a difference in the outcome for funding for legal services? 

Your state legislators absolutely do pay attention.  How can they not when last year nearly 700 lawyers flooded the hallways and stopped by their offices?   In fact, Governor Patrick was paying attention too.  He made a cameo appearance and announced in front of the crowd that he had level-funded the Massachusetts Legal Assistance Corporation (MLAC) line item in his budget which was released earlier in the day. 

Walk to the Hill has improved year after year making it easier for lawyers to participate.    Just as the Boston Bar Foundation’s John and Abigail Adams Benefit (January 29th) switched its format to a free-flowing event at the Museum of Fine Arts after decades of formal sit-down dinners, the Equal Justice Coalition’s Walk to the Hill has evolved as well.  Now there are projection screens and audio to stream the speeches outside of the Great Hall because of the overflow crowd.  Staff is on hand to help lawyers find their legislators’ offices.  Comment cards are available for participants to fill out and leave with the legislators or staff they visit.

Today, Walk to the Hill is more important than ever before. The need for civil legal aid has skyrocketed as the funding for it has plummeted.  The number of those eligible for legal aid grew by 91,000 between 2007 and 2009.  At the same time, since FY 2008 MLAC has been forced to cut grants to the legal aid programs it funds by 55% because of the precipitous decline in revenues from IOLTA accounts.

The symbolism of 700 attorneys congregating on Beacon Hill is profound, the speeches offered by the bar presidents are important, and the story shared by a client of legal services is heartfelt.  But at the end of the day legislators want to know what their constituents want.  They will look at phone logs and sign-in sheets to see who in their district participated.

So you need to do your part.  The event is not about meeting friends or having your picture taken with your firm; it’s about making the case for why legal aid is important and beneficial for Massachusetts.  All of the pageantry is wasted if participants do not take the time and stop by their legislators’ office. 

Walk to the Hill asks the legal community to personally deliver one simple message: Funding for legal services is more important now than ever before. Make sure you visit your state representatives and senators to ask them to support level funding for legal aid.  This year (FY 2012), level funding is $9.5 million.  Even if legislators are not available to meet with you, it is critical to stop by and leave your name and contact information. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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More Relief for Consumers

More good news! An update increasing the dollar amounts for bankruptcy exemptions in Massachusetts made its way to the Governor Patrick’s desk just before New Years Eve. Even though January 5th marked the end of the 2009-2010 session, the governor still has 10 full days to act on the bills on his desk.  Any bill that goes without action for more than 10 days will receive a so-called pocket veto.  Today is day 7.

As Issue Spot noted just weeks ago, personal property exemptions have long been in desperate need of modernization.  According to the Massachusetts statute, MGL Chapter 235, section 34 —last updated more than 30 years ago — the intent of the original law was to balance the legal rights of creditors against a debtor’s need for basic necessities in order to maintain a home and earn a living. 

The present law exempts from seizure things like 2 cows, 12 sheep, 2 swine and 4 tons of hay, and this is almost laughable in the context of how most people earn their livings or look for employment in 2011. Updating this law would increase the value of property, earnings and savings exempt from seizure during debt collection, and also permit debtors to keep computers. As families and communities continue to struggle with the impact of the economic downturn, the process of debt collection needs to change to one that is fair, at the same time facilitating the ability of debtors to fulfill their obligations.

The BBA had filed a bill several years ago that would update exemptions. Not surprisingly many bankruptcy attorneys eventually came to view the dollar amounts in that original bill as obsolete. During the summer of 2010 the BBA’s Bankruptcy Public Policy Committee identified key exemptions in our draft that could be revised to better reflect the needs of today’s household.  It was their work this summer which really brought this issue into focus for us and kept it on our radar in the final days of session. 

The BBA’s Bankruptcy Public Policy Committee had urged us to work with the National Consumer Law Center, and to adopt the exemption amounts that were in the NCLC’s bill.  As we revised our own bill we learned that the NCLC’s bill had already made enormous progress.  Working with NCLC on this issue proved to be successful. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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It’s That Time of Year Again

As people race to finish holiday shopping, there’s a growing curiosity about which bills in the legislature will actually make it all the way to the governor’s desk during the session’s final weeks.  With one eye on our current bills and where they are during the informal sessions, we’ve also begun taking a hard look at our legislative priorities for the next session. 

This process started months ago and probably won’t be completed until January.  The BBA has been reviewing our portfolio of bills that we’ve filed in the past and determining whether or not the issues are still timely and important. For those that make the cut, we must take a careful look to ensure that the language in the bill still reflects the reforms we sought. 

The BBA’s issues are varied and far reaching; including everything from complicated tax issues to criminal justice reforms to family law matters and consumer protection, so the input and expertise of our member volunteers is crucial.  The goal is to present complete, up-to-date, and meaningful legislation that will have real world, positive impacts on the citizens of the Commonwealth and practitioners of the law.

Some bills are time sensitive and require immediate action.  Other bills get filed each session until we are able to focus enough of the legislature’s attention on them at just the right time.  For example, legislation updating the Homestead exemption and creating the Massachusetts Uniform Probate Code took many years to become law. 

An example going forward is our bill that would update the dollar amounts in Massachusetts for bankruptcy exemptions.  In 2004, amid concerns that the new federal bankruptcy law would make it harder for people to seek bankruptcy relief, and that under Massachusetts’ obsolete exemption statute, debtors are vulnerable to losing the very tools that allow them to earn a living, the BBA began to work on updating the state exemption statute.  Tying the dollar amounts in the statute to cost of living adjustments was just the beginning.  Our proposal also recognizes the need for things like computers, sophisticated and specialized power tools, and automobiles as items necessary for earning a living today.   It is critical to update the exemptions to ensure they are relevant to the real world in which we live.

Generally speaking, the exemptions remain unchanged until someone summons the energy to introduce and pass a bill increasing them – and in Massachusetts this hasn’t been done in over 30 years.  While there is no mechanism by which these exemptions are regularly reviewed and other reforms are needed as well, updating the personal exemption statute will be an important step in helping a very vulnerable population.

When legislation is filed, many of the volunteers that work on it have visions of attending a grand signing ceremony in a large community hall.  They imagine getting commemorative pens from the governor, along with cameras flashing from a full press corps.  But what usually happens is that bills fortunate enough to make it to the governor’s desk are rarely ever afforded any media coverage.  Instead most become law quietly without much notice. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Homestead: From the Council to the Governor’s Desk

The BBA watched this week as one of its long-standing legislative priorities, homestead reform, was enacted by the Senate.   An Act Relative to the Estate of Homestead is now on the governor’s desk awaiting his signature.  This is good news to the many BBA members who have worked year after year and session after session to see the much needed changes in this area.  This is also good news to the attorneys whose clients have come to them in dire straits, overwhelmed with debt and seeking help to obtain a fresh start.  These reforms are substantial and will provide important consumer protections to homeowners in Massachusetts.  In addition to the consumer protection aspects, the bill will address many of the issues that have caused great difficulty to the courts in interpreting the current homestead statute.

In 2000, a detailed study of the Massachusetts homestead statute appeared in the Boston Bar Journal.  Author Mark W. McCarthy noted that homestead was so badly in need of change that only a complete rewrite would suffice. McCarthy even described the current homestead statute as, “ugly, clumsy, even embarrassing – and it just doesn’t work.”  That same year the BBA filed a homestead bill that was sponsored by then-Senator Robert S. Creedon, Jr. who was also chair of the Joint Committee on the Judiciary.  The BBA’s bill at that time focused on certain aspects of the homestead law including an automatic provision, certain stacking concerns for the elderly or disabled and creditor issues with respect to a homestead. 

Despite our hard work, real progress was not made for years.  While the BBA pushed for its own version of homestead reform, other groups, most notably the Real Estate Bar Association (REBA), were also proposing their version of homestead reform.  It was Senator Creedon who asked the BBA and the REBA to work together on a single bill that would incorporate the reforms that both organizations sought.  The BBA’s dialogue with REBA on homestead yielded good input on ways to improve the bill and led to a multi-year drafting process that resulted in a revised and balanced bill that was filed jointly in the legislature.   Now, an even more improved version of the compromise bill that the BBA and REBA worked on sits on Governor Patrick’s desk. 

Here’s what the current homestead bill will do:

  • Clear up ambiguities and make rules for filing a homestead declaration more logical
  • Protect beneficiaries of trusts
  • A refinancing mortgage will not be able to terminate previously filed homesteads
  • Protect proceeds from insurance or a home sale
  • Protect spouses and co-owners who transfer property amongst themselves
  • Provide protection for manufactured homes

Our work continued as we rallied our members to testify at public hearings, meet with legislators, and contact their local Reps and Senators, and we got pretty close to the finish line at the end of the last legislative session in December 2008.  While we weren’t able to claim victory before the legislature recessed, we did refile the bill to build upon the momentum of the last session. 

Homestead reform will provide concrete and meaningful assistance to citizens in Massachusetts especially low income consumers and the elderly.  Now with homestead poised to pass some ten years after our efforts began, maybe we can get somewhere on updating the personal property exemption laws.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

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Musical Chairs on Beacon Hill

Now that the election cycle has passed, the BBA is looking forward to working with a comparatively large new class of legislators – nearly 50 new Reps and Senators – and a Governor’s Office that has just announced some staff changes as well.  Governor Patrick announced that he asked his staff to submit their resignations and reapply for their jobs and there has been some movement among top officials. 

In particular, the Governor’s Chief Legal Counsel William “Mo” Cowan has just been named as Governor Patrick’s new Chief of Staff.  Mo has been Chief Legal Counsel since last October.  Mo has been an active member of the BBA and the private bar by serving on the BBA Council, as a BBF Trustee, and was an integral in the formation of the BBA’s Diversity and Inclusion Section.  In the past year he has been a good advocate for the courts and legal services and has always made himself available to the BBA. 

The Chief Legal Counsel is responsible for advising the Governor on all legal and policy issues, judicial selection, and legislation.  With Mo’s departure from the Office of the Legal Counsel, Deputy Legal Counsel Mark Reilly will assume the position of Chief Legal Counsel.  Mr. Reilly has been working on the Governor’s legal staff since 2007 after practicing with Foley Hoag LLP and Sally & Fitch. 

– Click here to read the Governor’s press release on the changes to his Cabinet –

The BBA will continue to work with the Governor’s office and Mark Reilly in his new role on critical issues for the private bar, the courts, as well as on the BBA’s priorities for the new legislative year. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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In the Tradition of Our Founder

In August Governor Deval Patrick declared October 2010 to be Pro Bono Month, a proclamation that the BBA wholeheartedly endorsed.  The BBA has a long history of promoting pro bono participation in the tradition of the organization’s founder, John Adams.  Now more than ever, pro bono representation is critical to ensuring equal access to justice in the Commonwealth.  Today there is an overwhelming demand for legal representation as a record number of individuals are forced to appear in court pro se because they cannot afford a lawyer and the demand for legal services far outstrips supply.  We continue to hear from our members about how this affects not just access to justice but the administration of justice.  Here are some of the things we have learned in the last year:

  • Pro se litigants require more assistance from court staff to understand and navigate the judicial process.
  • On one day in the Housing Court last fall, 203 cases were on the docket: in those cases, 189 tenants appeared pro se, as did 43 landlords.
  • The courts are trying to keep pace with the demand with diminished resources and fewer and fewer staff.
  • Delayed hearings and rulings can have direct negative impacts on individuals seeking relief from the judiciary on issues ranging from eviction to domestic abuse.

Our 2009-10 Public Interest Leaders recognized this growing problem and decided to focus their efforts on finding a creative way to address it.  They sought to meet the needs of both indigent litigants and lawyers who wish to help, but may not have the time to devote to long-term projects.  The group surveyed created a resource guide that focused solely on opportunities that would require 10 hours or less to complete.

On September 22, 2010, they held Take a Bite: Snack-Size Pro Bono Opportunities That Fit Your Practice here at the BBA.  Over 15 organizations with more than 20 opportunities for pro bono work that require 10 or fewer hours participated.  The event served as a great prelude to Pro Bono Month.  October at the BBA has been buzzing with training programs and events that celebrate and promote the importance of pro bono representation.  This has served as a great jumping off point for the BBA to continue its pro bono projects throughout the year.

For ways that you can get involved, check out the BBA’s calendar and our Public Service Program page.  There is still time left to attend one of our events and to make a lasting impact on the lives of those in need.

Boston Bar Association

Government Relations Department

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Lawyer Legislators: Post Primary Recap

It’s encouraging to see that several lawyers remain candidates in races for statewide office following the state primary elections.  As mentioned last week, several veteran lawyer legislators have chosen not to seek reelection this year.  A notable loss is Senator Steven Panagiotakos, the current chair of the Senate Committee on Ways & Means, who announced earlier this year that is stepping down in order to pursue other challenges. 

In spite of these losses, the number of lawyer candidates that remain may not result in a net loss in the number of lawyer legislators in the State House.  In the House there are 10 lawyer legislators that are not seeking reelection.  Of those 10 seats, 6 do not feature a single lawyer candidate in the general election while 2 feature only lawyer candidates.  The other 2 seats have one lawyer candidate in the general election.  Additionally, there are 5 more races in which there is a lawyer candidate on the general election ballot.

In the Senate there are 4 lawyer legislators not seeking reelection. Half of those seats do not have a lawyer candidate and the other 2 races each have one lawyer running.  Interestingly, there are 2 current lawyer House members running in different open Senate races.

While the BBA has not and will not endorse political candidates, we commend those that choose to utilize their legal education and skills by becoming public servants.  Lawyers and legislators share the same drive: to use law to protect the public’s rights and to improve society.  Lawyers make good legislators no matter their party affiliation because the education and training involved gives lawyers analytical and oratorical tools that prove exceptionally useful in the legislature. 

Still, it requires an enormous amount of disciple and balance for lawyers to maintain an active practice and serve as a legislator (not to mention a healthy personal life).  A former lawyer legislator and reader who served 3 terms in the Massachusetts House of Representatives noted in a comment on last week’s blog post that, “Combining a law practice with legislative duties is very difficult as the time demands of legislative business in Boston and of constituent servicing in the district are great.  Contrary to public perception, being a legislator harms, rather than helps, the development of the law practice as so much time is spent away from the office.”

Hopefully lawyers will continue to answer this call for public service by choosing to run for elective office.  Regardless of your politics, please remember to vote in the general election on November 2nd.

-Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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