We were pleased to welcome the new Suffolk County District Attorney to 16 Beacon Street last week, to hear about her formative experiences, her plans for the office, and her take on hiring and management.

Fresh off her historic election last fall, and barely two months into the job, DA Rachael Rollins visited the BBA on March 11 and took questions from Cat Ham, of the Suffolk DA’s Homicide Unit and co-chair of the BBA’s Criminal Law section, and Kate Cook from Sugarman, Rogers, Barshak & Cohen, P.C., as well as from audience members.

After earning a lacrosse scholarship at UMass-Amherst—and then engaging in a legal battle to save the program and other women’s sports at the school by threatening to bring a Title IX discrimination lawsuit—DA Rollins entered law school with a plan to pursue a career in sports law, specifically to become the first female Executive Director of to the National Basketball Players Association. She credited the co-op program at Northeastern Law School with helping her learn more about the field and gain valuable experience. While at NUSL, she interned at the NBPA and with the Boston Celtics After earning an LL.M. at Georgetown, she ultimately landed at the National Labor Relations Board in Boston before joining the firm then known as Bingham McCutchen (now Morgan Lewis). She said that, at Bingham, her work with former Suffolk DA Ralph Martin, the first African-American to hold that post, and her selection to participate in a District Attorney rotation in Plymouth County steered her toward criminal law.

What drove her to make the run for DA in 2018 was her anguish at watching as black and brown men were shot by police across the country, with no transparency about charging decisions (or lack thereof). That was also her motivation for announcing, the same day as her BBA appearance, the creation of a Discharge-Integrity Team, to help her exercise her exclusive authority on how to proceed in cases of police-involved shootings. Rollins is also taking pains to keep the deceased’s family apprised of the investigation’s findings.

Perhaps the policy she’s most associated with, in the public’s mind, is her list of 15 offenses for which she’s pledged to consider alternatives to prosecution.  DA Rollins said she’d given much consideration during the campaign to the development of the list after discussions with law enforcement, criminal defense attorneys, prosecutors and judges about the types of cases where a different kind of accountability than incarceration is called for. Her plan is to pause and do some “quality review” before putting people on what she described as a “conveyor belt” to jail, because these are overwhelmingly defendants dealing with poverty, mental-health concerns or substance use disorder in those instances. One part of the more thoughtful approach she’s aiming for is to make social services more available. But she promised to review the policy and go where the data lead, after consulting the public.

The DA intends to be closely involved with the communities she serves. In part because she’s seen it first-hand in her own immediate family, she understands that the justice system needs to better handle the cycle of treatment and relapse on the path to recovery from addiction. That means more case workers, social workers, and clinicians—an effort, she notes, that should’ve begun in the 1980s when it was mostly Black and Brown people struggling with addiction. She believes that since she has the power to send someone away, she needs to visit the prisons and jails she’s sending them to. And her ADAs should understand their role, too: If you want to work for her, she wants to know what drives you to be a prosecutor.

Asked about her greatest challenge so far as DA, Rollins cited the sprawling bureaucracy she now heads up, and the extreme pace of work—beyond anything else in the Commonwealth, by her measure. There’s simply very little time to dwell on each of the individual decisions required in the thousands of cases her office handles. And yet, working alongside similarly-situated victims who may have different ideas of justice, on the same fact patterns, she’s learned there’s no one “right” answer or approach; each case must be addressed on its own merits.

“We work at a very fast pace and handle incredibly complicated and violent matters,” Rollins said. “Not everyone can handle this pace of work and not everyone is cut out for it. I am incredibly proud of my staff, who show up every day, work hard, and give their best to the Commonwealth.”

Nevertheless, as a survivor of cancer, this job is not the toughest thing she’s faced. Her hard-earned strength and resilience are just what the job calls for, in her estimation. As she told the BBA audience, a DA needs to be decisive and instill confidence in employees, while still demanding accountability. Rollins says she knows what she doesn’t know, and she’s not afraid to defer to expert staffers.

Finally, responding to a question from Kate Cook, DA Rollins offered this advice to the new lawyers and law students in the room: First, be great at what you do and how you do it. At the DA’s Office, she seeks out people who are driven, hard-working, and ambitious—qualities more important to the ADA job than their credentials. “Be your own advocate,” she advised, and know when it is time to move on.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Earlier this week, the BBA Council approved a Business Transactions Section request to endorse a “Statement of Opinion Practices” that would establish a national basis for the preparation and understanding of third-party legal opinion letters, or “closing opinions.” Keep reading to learn more about the BBA’s past work on closing opinions and this latest development.

                In the late 1990s, the BBA’s former Business Law Section had a “Legal Opinions Committee” that worked on a range of issues related to the issuance and substance of closing opinions, which are delivered at the closing of a business transaction by counsel for one party to another party in order to satisfy a condition to the opinion recipient’s obligation to close. Specifically, between 1998 and 2005, the Committee worked to produce a streamlined form of opinion, building off of the ABA Legal Opinion Principles. The BBA Council adopted the Committee’s proposal and it eventually became a national model. You can read more about this in a 2005 Business Lawyer article drafted by Stanley Keller and Donald Glazer, who coordinated the preparation of the BBA’s Streamlined Form.

                Additionally, in 2007, the BBA Council joined a number of other bar associations across the country in endorsing a “Statement on the Role of Customary Practice in the Preparation and Understanding of Third-Party Legal Opinions.” This proposal supported the use of customary practice in closing opinions as it permits an opinion giver and recipient to have shared understandings of an opinion without having to state them in the opinion, removing the need for burdensome lists of diligence procedures, definitions, exceptions, and assumptions where customary practice offers this content.

                Now, more than a decade later, we are pleased to continue our efforts and leadership in this space, this time under the guidance of our Business Transactions Section, which grew out of the old Business Law Section and is currently co-chaired by Marc Mantell of Mintz Levin and Gitte Blanchett of Morgan Lewis. The Section Steering Committee considered the latest project produced by the Legal Opinions Committee of the American Bar Association’s Business Law Section and the Working Group on Legal Opinions Foundation to formulate a Statement of Opinion Practices, which would establish an updated national basis for the preparation and understanding of closing opinions. The project also included a document called the “Core Opinion Principles,” designed for use by those who want a separate document they can incorporate by reference or attach to a closing opinion.

                After review and discussion, the Steering Committee voted to seek BBA endorsement of the proposal. Stanley Keller of Locke Lord, a key leader in the previous BBA closing opinion efforts, joined Section co-chair Marc Mantell in presenting the proposal to the BBA Council, explaining the value of having a national basis for these opinions as well as the importance of gaining broad support by entities like the BBA. By endorsing the proposal, the BBA joined a large number of other interested groups, including the Massachusetts Bar Association, the Tribar Opinion Committee, and the Business Law Sections of the Tennessee Bar Association, Virginia Bar Association, State Bar of Texas, and the Florida Bar to name a few.

 We anticipate that the Statement and Core Opinion Principles will be published inThe Business Lawyer soon, and we look forward to being kept apprised by our Business Transactions about the impact this resource is having on the practice.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Last month, we updated you on our 2019 – 20 legislative priorities, including continued support for a ban on the use of “conversion therapy” on minors, first endorsed by the BBA in 2015. This very issue was the topic of one of the first committee hearings of the legislative session. Keep reading to learn more about the hearing and why Massachusetts should pass Rep. Kay Khan’s H. 140, An Act Relative  to Abusive Practices to Change Sexual Orientation and Gender Identity in Minors.

On Wednesday, the Joint Committee on Children, Families, and Persons with Disabilities convened a hearing to take up legislation banning the use of “conversion therapy” practices on minors by licensed health professionals in the Commonwealth. The hearing room was packed and included testimony from many legislators as well as advocates and experts, including Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus, Ben Klein of GLAD, Dr. Carole Allen of the American Academy of Pediatrics and Kate Thompson of Boston Children’s Hospital also explained why this legislation is so important.

The BBA is proud to join these voices by submitting written testimony in support of H.140. You can read the full testimony here. 

The testimony, submitted by BBA Family Law Section member Elizabeth Roberts of Roberts & Sauer LLP, explains that the legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. Typically, the use of this therapy occurs in the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes, including higher rates of depression, substance use, suicide attempts, homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

Our testimony additionally focuses on the legal aspects of the legislation, pointing out that First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power. For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9^th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, in 2017, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, the existing case law makes it clear H.140 is a valid exercise of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. The BBA joins a long list of medical and professional organizations in opposing the use of these practices, including the American Bar Association and the American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization. To date, fifteen states, six more since the hearing last session, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the sixteenth state to enact these protections.

Following the hearing, H.140 was reported favorably by the Committee, and we will keep you posted on ways you can join us in making sure these protections are enacted this session!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

A new legislative session has begun at the State House for 2019-20—officially the 191^st for the General Court of Massachusetts—and with it come about six thousand bills already filed by the 40 elected Senators and 160 elected Representatives from across the Commonwealth.  Let’s take a look at legislation the BBA is supporting, starting with three local versions of model laws drafted by the Uniform Law Commission (ULC).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Although there are certainly instances of Massachusetts leading the nation in advancing public policy, here’s a case of us actually being the only state yet to have enacted a law, some 20+ years after the ULC promulgated it.  The UCCJEA is effectively a compact that requires participating states (literally all of the others) to respect pre-existing custody orders from another state when a custodial parent moves there, with limited exceptions. 

The main idea is to discourage forum-shipping, promote certainty and quick resolutions, and save costs, by preserving the original state’s exclusive jurisdiction.  The Massachusetts version has been modified to address concerns about its potential impact on parents trying to escape domestic violence and has widespread support from the family-law bar.  The bill, filed by Sen. Cynthia Stone Creem, has twice now passed the State Senate but without action in the House.  This session, Rep. Sheila Harrington has also filed it.

(Read more: http://issuespot.bbablogs.org/2017/05/18/bba-testimony-at-judiciary-committee-hearings)

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA)

Trusts-and-estates practitioners have faced increasing uncertainty in recent years regarding how to handle decedents’ digital assets.  That is, what should happen to a person’s e-mail accounts, social-media profiles, on-line banking portfolios, and so forth, after they die—and how should individuals plan for that while still alive?  It is currently unclear in Massachusetts and elsewhere how to resolve disputes over access to such assets between the Internet provider and the decedents’ estate.  And the issue only grows in importance as our virtual lives expand in scope and content—and as those digital assets grow in value.

RUFADAA aims to provide that much-needed clarity by establishing protocols to govern access.  It offers an account-holder the ability to specify, while living, what is to happen after their death, and provides fiduciaries with a means to pursue content access in keeping with an estate plan, while also setting up protocols for cases of intestacy or an absence of instruction from the decedent.  Unlike previously-proposed bills, RUFADAA would extend to all digital content and to all types of fiduciaries.  It has now been adopted in 41 other states.  Here, RUFADAA legislation has been filed by both Sen. Barry Finegold and Rep. Jay Livingstone.

(Read more: http://issuespot.bbablogs.org/2017/05/11/rufadaa-update-testimony-at-judiciary-committee-hearing-and-podcast)

Uniform Trust Decanting Act (UTDA)

Also spearheaded by our Trusts & Estates Section is the BBA’s endorsement of the UTDA, which—like RUFADAA—would impose a legal framework in an area that currently lacks one: decanting, which involves the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust.  Though the SJC has recognized the potential validity of such actions under common law (in a case in which the BBA submitted an amicus brief), neither the Court nor the Legislature has spelled out what can and can’t be done, and under what circumstances.

Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent abuse.  UTDA, which would create those rules, offers national uniformity, but it’s especially important in the half of the US (including Massachusetts) that now has no decanting statute whatsoever.  Sen. Creem has filed a bill to adopt UTDA here.

(Read more: http://issuespot.bbablogs.org/2019/01/17/bba-endorses-uniform-law-on-trust-decanting)

Conversion therapy

We continue to support a bill that came tantalizingly close to being sent to the Governor at the end of the last legislative session in July: Rep. Kay Khan’s legislation would ban the use of “conversion therapy” on minors by licensed health care professionals.  The practice goes by different names, but it represents an ostensible attempt to alter a person’s sexual orientation and gender identity.  A ban would thus protect minors from a practice that medical and child-welfare experts agree does not align with current scientific understanding and is not only ineffective and misleading but downright unsafe.

(Read more: http://issuespot.bbablogs.org/2017/06/08/bba-presents-testimony-in-support-of-banning-use-of-conversion-therapy-on-minors)

Other legislation we are advocating for includes bills…:

• Offering alternative, neutral terms—which don’t carry the stigma of, for example, “custody” and “visitation”—that could be used by parents in custody disputes, and thereby promote settlement and reduce conflict and ill will.
  • Sen. Creem: https://malegislature.gov/Bills/191/SD510
• Updating and modernizing the law on spousal elective share (which allows a surviving spouse to take more from a decedent’s estate, under certain circumstances, than the will provides), as the SJC has repeatedly asked the Legislature to do (most recently in January).
  • Sen. Creem: https://malegislature.gov/Bills/191/SD509
• Redrafting Massachusetts law on operating a motor vehicle while under the influence, to make the notoriously confusing Chapter 90 of the General Laws easier to understand—but without making any substantive changes.
  • Sen. de Macedo: https://malegislature.gov/Bills/191/SD594
• Addressing a discrepancy in the treatment of adopted children in trusts that has resulted from confusing changes in the relevant statute over time.
  • Sen. Creem: https://malegislature.gov/Bills/191/SD442
• Fixing a glitch in the estate tax that results in disparate, unfair treatment, for purposes of tax basis, of property inherited from Massachusetts residents who died in 2010.
  • Rep. Alice Peisch: https://malegislature.gov/Bills/191/HD649
• Making technical corrections to the state’s Trademarks Act.
  • Sen. Creem: https://malegislature.gov/Bills/191/SD508
• Protecting the interests of property owners from “title piracy,” whereby unrelated third parties scour old records in search of technical defects, in order to find potential claims against current innocent landowners.
  • Sen. Creem: https://malegislature.gov/Bills/191/SD1666

We appreciate all of the above sponsors for carrying these measures.  We will continue to advocate for them throughout the current session and will of course keep you updated.  (To learn more about our process for considering new policy proposals, including how you can propose that we do so take a new position, read: http://www.bostonbar.org/public-policy/public-policy-procedures)

In addition to the specific bills listed above, we are guided by principles, guidelines, and recommendations that have been endorsed by the BBA Council to govern our positions in a variety of areas, such as criminal-justice reform, immigration, wiretap law, and shared parenting.

Much of our work in the State House, however, is focused on one annual bill in particular: the state budget.  As always, we are strong supporters of adequate funding for the judiciary, for civil legal aid, and for representation for indigent defendants.  Last year, we also extended our support to a new program for re-entry services for people coming out of incarceration.  (Read more: http://issuespot.bbablogs.org/2018/07/26/budget-update-governor-signs-fy19-budget)

Finally, our engagement with public policy extends beyond legislative lobbying: We frequently comment on proposed changes to court rules, for instance, and file amicus briefs on matters related to the practice of law or the administration of justice.  Though are efforts are mostly focused on the state level, we do take positions on Congressional legislation—including a recent effort [paywall] to prevent forum-shopping in bankruptcy cases—and, under the auspices of the ABA, we make the trek to DC each spring with the BBA President and President-Elect to talk to members of the Massachusetts delegation about BBA/ABA priorities at the federal level.  With two newly-elected Representatives to visit for the first time, we are especially looking forward to this year’s visit and will report back in April.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Our Section Steering Committees frequently take the opportunity to comment on proposed new and amended rules and court orders. Members are able to offer important insights from the viewpoint of their particular practice area and expertise, and the courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Earlier this month, the Criminal Law Section, one of the BBA’s most frequent participants in the comment process, submitted comments in response to a proposed amendment to Rule 12 of the Massachusetts Rules of Criminal Procedure. The amendment would add a new section allowing the defendant, if the prosecutor agrees, to plead guilty while reserving the right to appeal any ruling that would, if reversed, render the Commonwealth’s case not viable. The proposal was drafted in response to the Supreme Judicial Court decision in Commonwealth v. Gomez, 430 Mass. 240 (2018), which authorized the use of conditional guilty pleas in Massachusetts.

The comments reflect diverse opinions from both prosecutors and defense attorneys, offering suggestions and feedback on those sections related to prosecutorial consent, the “not viable” requirement, and single-charge conditional pleas sentencing issues.  A special thanks goes out to Criminal Law Section Steering Committee members David Rangaviz, of the Committee for Public Counsel Services, and Kaushal Rana of the Suffolk County District Attorney’s Office, for taking the lead in drafting these comments and presenting them to the Executive Committee.

                You can read the full Criminal Law Section comments here. We’ll be keeping an eye out for the final rule, and in the meantime, don’t miss the Criminal Law Section’s upcoming program on Conditional Guilty Pleas on March 20 at the BBA!  

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Since the release of the BBA Principles and Report last September, we’ve been using the analysis and framework created by the Immigration Working Group to weigh in on key immigration developments. For example, over the last few months, we submitted comments in opposition to proposals that would radically change the public charge rule and the processing and treatment of immigration youth.  

Below, we highlight the most recent immigration-related position adopted by the BBA Council and offer a few updates on other important developments, including the Border Wall and the family separation suit filed last fall by a collection of Boston-area immigration and civil rights attorneys.

ABA Resolution on Zero-Tolerance Policy and Operation Streamline

Last month, we reported that the BBA endorsed a proposed ABA resolution related to federal immigration policies and practices to be taken up by the ABA House of Delegates at their mid-year meeting. We’re thrilled to report that the resolution was indeed adopted  by the ABA as proposed and can be found here.

The Resolution  and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.”  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups, like the BBA, are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. 

For a full overview of the resolution and the BBA’s endorsement, visit this blog post.

Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arrowood, of  Arrowood LLP, were able to pass along the BBA’s support in advance of the vote. Mary Ryan reported on the great testimony presented in support of the Resolution by those who had visited the border and told personal stories of how the scenes of mass prosecutions impacted them.  

Other Updates

National Emergency and the Border Wall

The federal government shutdown, which occurred largely due to a disagreement over funding for a wall at the border, had major impacts on individuals and communities across the country. These impacts were especially pronounced for immigration courts, where over 85,000 immigrants had their hearings canceled, many after already waiting for years for the court date. It will likely take years for the courts, already facing a deep backlog, to make up the missed hearings, but the shutdown has now ended and attention has turned to the President’s declaration of a national emergency at the border in order to access funding to build the wall.

The declaration has raised significant questions about executive power and national emergencies. Director of Government Relations Michael Avitzur previously shared an article on LawFare Blog by Margaret Taylor, and it’s worth a reread for the statutory argument analysis.

Soon after the declaration, 16 states filed a suit in the U.S. District Court in San Francisco, arguing that the President does not have the power to divert fund as Congress controls that spending and pointing to Trump’s own words to show there is not an actual emergency. Attorney General Maura Healey stated that she is “working to determine the full scope and impact on Massachusetts so that, if and when we challenge the administration’s actions, we bring the strongest possible case.”

Amended Complaint Filed in Family Separation Suit

In September, Lawyers for Civil Rights, and attorneys from Todd & Weld, Nixon Peabody, Demissie & Church, and the Law Offices of Jeff Goldman, filed a first-of-its kind federal class action lawsuit seeking damages against Trump Administration officials for the family separation at the border. The suit, brought on behalf of two families and similarly-situated children, seeks damages based on violations of the constitutional and civil rights of immigrant children, including the violation of due process and violation of the Fifth Amendment’s equal protection clause. The damages sought include the creation of a mental health fund to pay for therapy and treatment necessitated from the separations.

At the end of last month, the two families filed an amended complaint that adds a count alleging violation of the Fourth Amendment’s protection against unlawful seizure. On January 9, the government had filed a motion to dismiss but will now file a second motion to dismiss in response to the amended complaint. Hearings in the case have not yet been scheduled.

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Continue to watch this space for more updates on how these matters develop on the state and national level. If you’re interested in learning more or becoming involved in the BBA’s immigration-related work, email adaniel@bostonbar.org

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

It’s that time of year when our budget priorities become a focus here in the Government Relations Department of the Boston Bar Association (BBA). We previewed our budget campaign before Walk to the Hill earlier this year, and last month Governor Charlie Baker released his Budget for Fiscal Year 2020 (FY20). You can read our letter to the Governor here.  Now, our attention turns the Legislature as the House, and then the Senate pass their own budget proposals in the coming months.

For a refresher on where things ended up for the FY19 budget, visit this blog post, and keep reading to learn more about our funding asks for FY20.

Walk to the Hill Recap and MLAC Budget Ask

Before getting into the budget details, we first want to thank all those who made Walk to the Hill 2019 such a success!  On January 24, hundreds of attorneys braved the rain and rallied at the State House to advocate for an increase in funding from the Mass Legal Assistance Corporation (MLAC), the largest funder of legal services programs in the Commonwealth. This year marked the 20th anniversary of the Walk, annually hosted by the Equal Justice Coalition, an organization formed in partnership with the BBA, the Massachusetts Bar Association, and MLAC.

Before heading over to the State House, law students, in-house counsel, and solo and small firm practitioners gathered at the BBA for a breakfast and refresher on speaking about legal aid with legislators. Once across the street, attendees heard moving remarks from President Jon Albano,  SJC Chief Justice Ralph Gants, EJC Chair Louis Tompros, MLAC Executive Director Lynne Parker, MBA President Chris Kenney, a client who received legal assistance from GBLS, and GBLS Executive Director Jacquelynne Bowman.  As usual, many of the speeches relied on the BBA’s own Investing in Justice report to highlight that funding for legal is not only the right thing to do, but a sound investment that pays for itself, and then some. (ICYMI: that same report just got a mention in the Boston Globe in a piece related to the provision of counsel in eviction proceedings). After the speeches, attorneys spread out across the State House, including Jon Albano and MetroWest Legal Services Executive Director and BBA Council member Betsy Soulé, who had productive meetings with Representative Alice Peisch and Senator Michael Barrett, both long-time supporters of MLAC funding.  Read the full Walk to the Hill recap by the EJC here.

            Walk to the Hill marks the beginning of a months-long budget campaign for civil legal aid, and this year we are asking for a $5 million increase in funding in the Fiscal Year 2020 (FY20) budget, for a $26 million total appropriation. The day before the Walk, the Governor released his own budget, which offered level-funding for MLAC. Now we turn our attention to the Legislature, where we’ll be urging the House and the Senate to include the full $26 million request.

Trial Court

As usual, we’ll also be urging for adequate funding for the Trial Court appropriation. The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY16 staffing level and a 19% reduction since FY02.

Despite these efforts, and even with steady increases in funding from the Governor and Legislature, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth. That’s why we are urging that the FY20 budget include the Trial Court’s full requested maintenance-level appropriation.  

CPCS

This year, we will also be urging, as usual, for adequate and timely funding for the Committee for Public Counsel Services (CPCS),which plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s 2015 recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and increased funding for CPCS would be a significant and beneficial step in that direction.

CPCS funding in the FY20budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding would allow CPCS to increase compensation for bar advocates, or private attorneys who defend indigent clients, which would help to find attorneys willing to take on these tough cases and protect the constitutional rights of these parents and children.

Residential Re-Entry Services

As you’ll recall, last year we added an additional item to our budget priorities: funding for residential re-entry services to reduce recidivism. Massachusetts recently took a huge leap towards ensuring our criminal justice system is more fair and effective. While there is much to celebrate, there is still much to be done. Each year thousands of Massachusetts residents are released from jails and prisons, many with little or no resources to help in securing essential needs like employment and housing.

Because of this, the BBA recommended in its report, No Time to Wait, that the state “ensure adequate funding and accountability for anti-recidivism efforts.” One step towards this is through line-item 0339 -1011, which would offer funding for community-based residential reentry services that provide housing, workforce development, and case management for recently released individuals, fostering connections and stability for those re-entering the community. This year, we are once again supporting a $5 million appropriation for these important services.

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As our budget advocacy gets underway, there will be plenty of opportunities beyond Walk to the Hill for you to join us in advocating for our priorities, which will help to ensure access to justice for all residents of the Commonwealth and an efficient and effective judicial system. Watch for e-alerts coming your way, asking you to reach out (again) to your elected officials at key points in the process during budget season! In the meantime, you can learn about the state budget process by listening to this podcast focused on civil legal aid in particular, and about the federal budget and budget advocacy at that level from our Federal Budget Process 101 podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Let’s get one thing out of the way up-front: This blog post has nothing to do with wine.

Rather, let’s talk about trust decanting, or the fiduciary exercise of broad discretionary powers of distribution to create new trusts for one or more beneficiaries of an existing trust. In other words, the distribution of assets from one trust into a second trust, just as wine may be decanted from a bottle into another vessel.

It’s a form of trust modification that’s available to fiduciaries now in Massachusetts. Decanting can be a useful strategy for changing the outdated terms of an otherwise-irrevocable trust—for example, to provide for a beneficiary who becomes disabled after the settlor executes the original trust—but it can also defeat a settlor’s intent, so rules are needed to prevent such abuse.

However, the law on decanting in Massachusetts—what can and can’t be done, under what circumstances—is far from clear.

This situation has confounded practitioners, who don’t know whether a specific modification is proper until the courts weigh in—and who may therefore refrain from taking certain appropriate steps out of fear of litigation. It also poses traps for the unwary and creates an incentive for settlors and testators to establish trusts elsewhere, in a state such as New Hampshire whose trusts law is more modern and can thus provide greater assurance.

Of course, this issue is not new to the BBA. In 2013, we filed an amicus brief to the SJC in Richard Morse, Trustee v. Jonathan A. Kraft, et al. That case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The BBA’s brief argued in favor of this power to decant, and urged the Court to recognize that it is inherently held by trustees.

The SJC did rule favorably with respect to Morse’s petition—recognizing the authority of trustees to decant where the terms of a particular trust and the surrounding circumstances indicate that decanting is consistent with the trust settlor’s intent—but declined to recognize decanting as an inherent trustee power, essentially preserving the current limbo.

Since that decision, the BBA has hosted numerous CLE and other events on the topic, and next month we will host an event titled “Decanting, Non-Judicial Settlement Agreements and Other Trust Amendment Alternatives.”

Into this uncertainty stepped the independent Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (which you may remember from its work on the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA). That group of trust experts—which includes Stacy Mullaney of Fiduciary Trust, BBA Trusts & Estates Section Co- Chair, and Brad Bedingfield of Hemenway & Barnes, Trusts & Estates Section Public Policy Committee Co-Chair—spent more than year poring over the Uniform Law Commission’s model language to develop a Massachusetts-specific version of the Uniform Trust Decanting Act (UTDA), which was designed to create a national framework for practitioners facing questions of how best to accomplish trust decanting.

Last month, on the recommendation of the Trusts & Estates Section, the BBA Council endorsed their work, and we will now make the case to the Legislature that they should adopt this UTDA as part of the existing Massachusetts Uniform Trust Code, joining the other half of the states that have taken similar steps to date—enacting either UTDA or their own decanting statutes.

This proposed Act represents a piece of legislation (now filed by Senator Cynthia Stone Creem) that has been deeply vetted, fits a known need, and will ensure that practitioners in the Commonwealth have at least the same level of statutory clarity on this issue as those in the majority of other states throughout the country. If it’s enacted, Massachusetts practitioners will be free to continue to decant trusts under common law, if that makes the best sense for a client or situation; they will, however, have an alternative and clear guidance concerning how to decant properly in accordance with the statute.

—Michael Avitzur
Government Relations Director
Boston Bar Association

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules.

Late last year, the Court released a final version of the Uniform Trial Court Rule on Limited Assistance Representation (LAR) that incorporated feedback from our Business and Commercial Litigation Section (BCLS) Steering Committee. The Rule will become effective on February 1, 2019, and can be read in full here.

Early last year, Chief Justice of the Trial Court Paula M. Carey solicited comments on the proposed Uniform Trial Court Rule on LAR. An LAR Rules Committee was formed in 2017 and charged with drafting the proposal, intended to provide consistency across departments, improving the service for both lawyers wishing to provide LAR and litigants wishing to secure LAR services. When creating the proposal, the Committee considered the Supreme Judicial Court (SJC) LAR Order as well as existing Orders from other Trial Court Departments.

The BCLS Steering Committee comments began by noting that committee members believed “the Trial Court’s embrace of limited assistance representation is an important development in the delivery of affordable legal services in non-criminal cases,” noting that the Section had previously reviewed and offered favorable comments on the Superior Court’s LAR order the previous year. The comments commended the Court for continuing those efforts and highlighted a few points in the proposed rule that departed from the existing rules in ways potentially worth clarifying.

For example, the comments expressed concern about the requirement that the attorney “ensure that a prospective client fully understands the agreement and that the client gives informed consent.” Members were not sure how counsel could “ensure” that a client “fully understand” the agreement and suggested instead it a more objective test, like reviewing the document together. The final comment removes the “ensure” language and instead reads: “The attorney shall review the written agreement with the client before it is signed and obtain the client’s informed consent.”

Members additionally raised concern about the language addressing instances when a lawyer may have exceeded the scope of the assistance described in the Notice of Limited Appearance. The proposed rule provides: “[I]f an LAR attorney files a pleading, motion or other document and/or argues a legal issue outside the scope of a filed Notice of Limited Appearance, then the court may consider the LAR attorney to have entered a general appearance.” Members were worried “that counsel would feel constrained not to raise relevant, helpful, but unforeseen issues—which they had not identified in their Notice of Limited Appearance—out of a concern that they could then be deemed to have appeared generally.” The new rule clarifies this provision, easing the concern expressed in the comments, and now notes that if an Attorney files or argues something outside the scope of the filed Notice of Limited Appearance, the court may require a new Notice to be filed, and if the attorney fails to do so after that, the court may consider the attorney to have entered a general appearance.

            Next, the comments raised two minor clarifying suggestions related to paragraph 5: the mentioned Notice of Withdrawal should be “court-approved,” and that there should be a reference to “service. The final rule incorporates both of these suggestions, now reading: “[u]pon completion of all events or issues for which an LAR attorney has filed a Notice of Limited Appearance, s/he shall serve and a Notice of Withdrawal of Limited Appearance on a form approved by the Chief Justice of the Trial Court.”

            Finally, members addressed the “non-punitive remedy” outlined in Paragraph 5, finding the new proposal a bit draconian compared to the previous standing orders, and noting that members thought that the bar to an award of fees or costs should be set higher than in the proposed rule. The proposal read that “if any other party incurs costs or is otherwise prejudiced by the attorney’s failure to file a Notice of Withdrawal, then upon motion the court may order a non-punitive remedy, including compensation for fees and costs reasonably incurred.” The final rule remains much the same but adds that “…upon motion the court for good cause may order a non-punitive remedy…”(emphasis added). 

You can read the full BCLS Comments here.

As always, we are very appreciative of the hard work and expertise offered by the Committee Members, especially committee co-chairs Stephen Riden of Beck, Reed, Riden and Daniel Tighe of Donnelly, Conroy & Gelhaar, who presented the comments to our BBA Executive Committee before their submission. We’re also thrilled that the court adopted many of the suggestions.

To read more about the impact of past BBA Comments check out:

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

BBA Government Relations Year in Review: Part II

Comments Update: Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

UPDATE: We’re pleased to report that the ABA adopted this resolution at their mid-year meeting in January.

December was a busy month for the BBA Council. In addition to adopting a position on Massachusetts trust and estates legislation, which you can read about here, the Board also endorsed a proposed ABA Resolution related to federal immigration policies and practices.  This proposal will be voted on by the ABA House of Delegates at the Mid-Year meeting at the end of this month.

The Resolution

The Resolution and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.” The resolution reads in full:

• RESOLVED, That the American Bar Association calls upon the Attorney General to rescind the policy of prosecuting all individuals who enter the United States without authorization at the southern border for the misdemeanor offense of illegal entry pursuant to 8 U.S.C. §1325, end the practice of expedited mass prosecution of immigrants, and allow for an individualized determination in deciding whether to file criminal charges.
• FURTHER RESOLVED, That the American Bar Association urges the federal judiciary to take appropriate measures to assure that every defendant charged with the misdemeanor offense of illegal entry is represented by counsel who has had an adequate opportunity to consult with the defendant, and that any guilty plea is knowing, intelligent, and voluntary.
• FURTHER RESOLVED, That the American Bar Association urges Congress to provide sufficient funding for the judiciary to enable it to take the above measures and sufficient funding to assure that each defendant receives effective assistance of counsel.
• FURTHER RESOLVED, That the American Bar Association urges the Attorney General to exercise prosecutorial discretion and refrain from prosecuting asylum seekers for the offense of illegal entry.

  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. The report first points to the conclusion drawn by several former U.S. Attorneys that devoting prosecution resources to the mandatory prosecution of misdemeanor improper entry actually detracts from public safety by leading to a dramatic decrease in prosecutions for other serious crimes. These crimes include drugs and weapon smuggling, human trafficking, and environmental crimes. In a letter to the Attorney General on this issue, a bipartisan group of former U.S. Attorneys stated: “Under your Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”  

The report next discusses the significant due process concerns presented by Operation Streamline, which began as a pilot in the Del Rio border sector in 2005, continued sporadically until 2018, and then was expanded across the southern border of the U.S. by the zero-tolerance policy. While the stated purpose of the practice is to deter entry without authorization, there is no evidence that that the policy has had that effect.  This practice raises significant due process concerns, as the use of en masse hearings mean that Federal public defenders typically only have a few minutes to meet, interview, and prepare each client prior to the court proceedings and questions by the judge are also often predominantly done en masse.

            More specifically, these concerns have led the drafters of the report to worry that the guilty pleas procured in these hearings may not even be valid as “under the rush of these proceedings, a defense attorney has only a brief opportunity to meet his or her clients — in a public setting — immediately prior to a scheduled guilty plea hearing to discuss the charges and the decision whether to plead guilty.” Additionally, this makes it difficult or impossible for defense attorneys to fulfill their duty of providing effective assistance of counsel, as they do not have the time required to adequately evaluate the evidence, investigate the veracity of the allegations, and consider any potential defenses. And it’s not only the counsel and clients who suffer from these policies, the report highlights that judges and magistrates are put in an untenable position by having to preside over these group proceedings, since they must determine before accepting a guilty plea, that it was made knowingly, voluntarily, and intelligently.  

            Finally, the report highlights specific concerns related to asylum seekers. The mandatory prosecution of everyone, including those seeking asylum, deprives prosecutors of the discretion to consider cases on the merits, “contrary to accepted norms concerning the sound exercise of prosecutorial discretion.”

Read the full proposed resolution and report here.

BBA Background

                As you likely know by now, the BBA has recently adopted a Statement of Principles Concerning Immigration and Related Issues, which includes four key principles and a full report of the background and reasoning behind them. The document was intended not only as an expression of the BBA’s positions and core values in this area but also as a guide in responding to future immigration questions and challenges. In this instance, the principles most relevant for analyzing the zero-tolerance policy and Operation Streamline are Principle 3 and Principle 4.

Principle 3 calls for the protection and enforcement of due process and equal protections rights for all. The report specifically states:

“Those well-settled principles—that immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses—should serve as the foundation for the BBA’s approach to addressing immigration issues.”

Principle 4 provides that “[e]very person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” And the report specifically references Operation Streamline in the provision related to “Access to Counsel and Individualized Hearing:”

“Furthermore, when defendants in immigration proceedings seek to assert their rights and privileges, they must be afforded the right to an individualized hearing of the unique facts of their case. … [G]roup hearings and other shortcuts in immigration proceedings have been imposed, particularly along the southwest border, in which ‘a single attorney can represent dozens of defendants at a time, [and] might not be able to speak confidentially with each client or might have a conflict of interest among clients.’ In such cases, judges may take as little as 25 seconds to hear the case of each defendant. Such proceedings cannot be viewed as offering meaningful access to counsel, due process, or justice. [citations omitted]”

            Asylum-seekers are also entitled to due process in pursuing their claims before federal immigration officials.  The BBA used the immigration principles to speak on this issue just a few months ago, expressing concern about newly-imposed limits on their ability to do so, and saying:  “While not all individuals who arrive at our border are eligible for asylum, under law each and every one must be afforded a meaningful opportunity to have their claim for asylum heard.” The extent to which these policies hinder the ability of asylum-seekers to have their claims heard is therefore deeply troubling.

Finally, the BBA has a long history of supporting adequate funding for the judiciary, making it a priority of our state budget campaign each year, so it’s only natural that we urge for adequate funding for the federal judiciary, in order to accommodate the resolution’s call for a right to effective representation by counsel for every defendant charged with the misdemeanor offense of illegal entry.

Next Steps

At the end of this month, the ABA hosts its Mid-Year Meeting where the House of Delegates will vote on a range of proposed resolutions, including this one. Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arowood, of  Arrowood LLP, have and will continue to communicate our support for the proposal and urge for its adoption. We’ll be sure to keep you posted on whether this important resolution is adopted and other developments in this space!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association