Guest Post: Jack Caplan is the current Lawyer Referral Service Co-op Intern at the BBA. Jack is a sophomore at Northeastern University studying Politics, Philosophy, and Economics.

Last Thursday, April 19^th, on the heels of the 50^th anniversary of the assassination of Dr. Martin Luther King, Jr., some of Boston’s most prominent champions of civil rights gathered at the BBA for an evening which simultaneously looked back on where the country has been, and looked forward to where it can go.

The all-star lineup consisted of:

Rahsaan Hall, the current Director of the ACLU’s Racial Justice Program, was moderator for the evening.  He also manages the “What a Difference a DA Makes” campaign, which seeks to educate the public about how much positive influence a District Attorney can have on their community, lessons he learned in part during his time as an Assistant District Attorney in Suffolk County.

The Honorable Geraldine Hines (Ret.) kicked off her career spearheading the creation of a Department of Afro-American Studies at the University of Wisconsin-Madison, a movement which triggered the National Guard to be deployed at the time, but which later earned her the Distinguished Alumni Award.  After several decades doing civil rights litigation, she was appointed Associate Justice of the Superior Court, and in 2014 became the first black woman to sit on the Supreme Judicial Court.

Barbara Arnwine, the longtime Executive Director of the Lawyers’ Committee for Civil Rights Under Law, has led a long and robust career fighting for civil rights in the US and abroad.  Focusing much of her work on voting rights, Arnwine helped to create the 2011 “Map of Shame” which shows disenfranchisement efforts across the country.

Segun Idowu has spent most of his life in Boston. A graduate of Boston Latin, Segun went to Morehouse College before returning back home.  In 2014 Segun co-founded the Boston Police Camera Action Team and played a key role in establishing the police body camera system that is expected to be made permanent by the Boston Police Department.  Additionally, Segun is on the leadership team for the Boston NAACP, and is currently running to be the State Representative for the Commonwealth’s 14^th District, covering Hyde Park, Roslindale, and West Roxbury.

Iván Espinoza-Madrigal has worked for a number of civil rights-oriented organizations including Lambda Legal and MALDEF, and is currently the Executive Director of the Lawyers’ Committee for Civil Rights and Economic Justice, an organization leading the charge on a variety of civil rights matters across the Boston area.  He’s been honored as one of the city’s 100 most Influential People of Color, and one of the Best LGBTQ Lawyers under 40, among many other accolades. Last year, he was honored at the 8^th Annual BBA Beacon Award.

Panelists kicked things off with a reflection on the impact that Dr. King had on them.  For some, like Segun, it was personal.  He told a packed room how his grandfather was a good friend of King’s and passed down many of his advocacy tactics and strategies, which would eventually become a roadmap for Segun’s police camera advocacy.  For Arnwine, it was all about making sure that the legacy of Dr. King is a living legacy – one that we continue through persistent advocacy for change.  Having lived all over the country, Arnwine discussed how she’s been bringing that fight across multiple states and regions, and how she’s seen that the so-called “problems of the South” aren’t just problems in the South, but up North as well.

Reflecting next on how the racial landscape has evolved in Boston over their lives, panelists provided broad reflections about how the city has changed.  Justice Hines noted how although the daily outright violence that was seen just a few decades ago, such as during the anti-desegregation bussing riots of the mid-‘70s, has largely disappeared, racial injustice has manifested itself in other ways.  Chief among them has been how the city has gone about new development. Multiple neighborhoods have seen their communities completely altered by the introduction of new businesses and housing developments which are pricier than what the neighborhood is more used to.  Consequently, many long-time residents are slowly priced-out of the neighborhoods that they’ve built, and called home for decades.  Panelists had a vibrant discussion on the injustice inherent in this practice, and the potential for some high-impact litigation in coming years.

Dr. King’s legacy has had a deep impact on the efforts of each panelist – both personally and professionally.  Justice Hines spoke bluntly about how although no one can do everything, everyone should do something – participate in demonstrations, speak out against injustice, and make sure to vote whenever possible, since we all carry a personal responsibility to better society.  And, as attorneys specifically, Executive Director Espinoza-Madrigal emphasized the professional responsibility to carry these fights from the streets to the courts.  It’s crucial that lawyers don’t try and pick “winners” and pit marginalized groups against one another in the fight for equal recognition and access to resources, but rather continue to add seats to an ever-growing table.

The best way to honor the unparalleled legacy of Martin Luther King, Jr., our distinguished panel seemed to agree, is to make sure that his legacy doesn’t exist only in abstraction, but rather in a way that keeps society moving forward along a path that is completely and unequivocally towards justice.

Each year, representatives from state and local bar associations across the US gather in Washington, DC, for a couple of days of advocacy on behalf of some of the American Bar Association’s top priorities.  Last week, BBA President Mark Smith, of Laredo & Smith, and President-Elect Jonathan Albano, of Morgan Lewis & Bockius LLP, joined their counterparts from the Massachusetts Bar Association—Chris Sullivan and Chris Kenney, respectively—on another whirlwind tour of the Capitol, visiting the offices of 10 of the Commonwealth’s 11 US Senators and Representatives as part of ABA Day.

Although our group had to split up in order to fit all those meetings in, we did get to sit down with both our Senators, Elizabeth Warren and Ed Markey, and Representatives Katherine Clark, Bill Keating, Joe Kennedy, and Jim McGovern.  We also saw staffers for Congressmen Mike Capuano, Steve Lynch, Seth Moulton, and Richard Neal.

This year, we focused our presentations on four main topics:

• LSC funding

As always, the federal appropriation for civil legal aid, through the Legal Services Corporation (LSC), was at the top of our list.  LSC is the largest source of funding for providers nationwide: There is not a county in the US that is not covered by an LSC-funded agency, and here in Massachusetts, they fund the Volunteer Lawyers Project, South Coastal Counties Legal Services, Northeast Legal Aid, and Community Legal Aid—for a total of about $5.5 million this year.

The $1.3 trillion budget deal reached in Congress earlier this year increased LSC’s line-item, for the first time in years, from $385 million to $410 million.  Even at that level, however, legal-services providers remain woefully under-resourced.  Our request, on behalf of the ABA, was for an increase to $482 million in the coming fiscal year.  That would at least get LSC, and its grantees, back to where they were nine years ago.

LSC enjoys wide and deep bipartisan support in Congress—evidenced by that $25 million increase they received for the current fiscal year, in the face of a White House proposal to defund and shut down LSC’s operations entirely—and our delegation is unanimous in their strong support.  Yet the fiscal climate in DC makes almost any funding increase a challenge, no matter how worthy the cause.

• Criminal-justice reform

This issue was on the ABA’s agenda two years ago, when momentum finally seemed to be growing for bipartisan agreement in Congress.  Since the 2016 election, though, there has been little action, if any, on this front, and the ABA didn’t make it one of their two priorities for ABA Day 2018.  But we chose to add the topic because we believe Massachusetts’ recently-enacted law can be a model for federal action—especially given the overwhelming support it had in the Legislature from both parties.

Our message to the elected officials was that Congress should take a comprehensive approach to reform, including bills that have ABA support on bail reform, sentencing, and juvenile justice.  Taking a piece-meal approach, to first tackle the low-hanging fruit would risk prematurely ending the debate for the foreseeable future by taking the heat off Congress.  What we heard back was that there may be an appetite to pick this issue up again after this fall’s mid-term elections—depending on the outcome.

• Public Service Loan Forgiveness

In 2007, the federal government created the Public Service Loan Forgiveness program, designed to assist with student-loan repayment for those who work at least 10 years at a qualified public-service job.  Now, just as the program is beginning to pay back public-sector/non-profit employees who signed up at the outset and have been making timely payments ever since, it is under threat of cut-backs or even elimination.

Lawyers—who graduate with average debts of $88,000 for public schools or $122,000 for private schools—face some of the most-daunting challenges in considering whether to start their careers in public service.  But our case for the program extends as well to other professionals, such as teachers, first responders, and social workers.  And the program benefits not only those individuals, but their employers, too, since it can be difficult to attract talented applicants to these relatively low-paying jobs.  Of course, society as a whole stands to gain from measures such as this, to encourage students to acquire needed skills and then apply them in public service.

• Immigration Orientation Program

This fourth item was a last-minute addition to our agenda, after the White House announced, just the previous evening, the suspension of a successful program to help applicants navigate the complexities of our federal immigration system.  The program helps to streamline the process and has demonstrated its cost-effectiveness, with the most-recent analysis finding a saving of $17 million as a result.  Nevertheless, as we heard from Rep. Kennedy, anything related to immigration is toxic these days in Washington.

A separate part of ABA Day involves the presentation of the Justice Awards, to recognize the work of members of Congress in advancing issues of critical importance to the ABA and the administration of justice.  This year’s event could only be a bit of a let-down from last year, when our own Rep. Joe Kennedy was one of the recipients, but it was still a treat to hear from House Democratic Leader Nancy Pelosi and Pennsylvania freshman Rep. Brian Fitzpatrick.  Leader Pelosi, the former Speaker, was introduced as the highest-ranking female elected official in American history, but said she couldn’t wait to lose that distinction.  She went on to talk about the importance of lawyers in our system, and about her pride that her daughter is one herself.

Rep. Fitzpatrick, a former FBI agent, joked (we think) that he’d left a job where he knew his colleagues would take a bullet for him for one where the opposite is true.  He also tied his belief in civil legal aid for the poor to his Roman Catholic faith, quoting Jesus saying, “Whatever you do for the least of these, you do for me.”  (Although they could not attend the award ceremony, Senate Majority Whip John Cornyn of Texas and California Senator Dianne Feinstein were also honored.)

We’ve said this before, but it bears repeating: We are blessed in Massachusetts to be represented by a delegation that shares these priorities—and, especially, understands the importance of civil legal aid.  Unlike attendees from other states, we were there at least as much to thank those we met with for their continued support as to persuade them on our issues.

—Michael Avitzur
Government Relations Director
Boston Bar Association

This week, the BBA filed an amicus brief in the case of U.S. v. Brian Joyce on the issue of the government’s motion to disqualify Joyce’s defense counsel. This move has generated a great deal of alarm in the legal community for its potential to significantly interfere with the attorney-client relationship, a bedrock of the fair administration of justice.

Drafted by President-Elect Jonathan Albano, of Morgan Lewis, the BBA brief argues that the Government’s motion to disqualify defense counsel should be denied on both Sixth Amendment and First Amendment grounds, honing in specifically on the First Amendment issues of the right to petition the government and an attorney’s right to speak publicly on behalf of a client.

Case Background

In December 2017, former state senator Brian Joyce was indicted on federal charges for using his office for personal gain, including racketeering, honest services fraud, extortion under color of official right, and conspiracy to defraud the IRS. In February 2018, the government moved to disqualify Joyce’s defense counsel, Howard Cooper, who has served as Joyce’s counsel for a number of years, including during the Massachusetts State Ethics Commission’s investigation, the U.S. Attorney’s Office’s investigation, and in the current case before the District Court.

The government argues that Joyce used Cooper to make several material and false representations to the Ethics Commission and the press, which Joyce intentionally meant to conceal his ongoing criminal conduct that is now the subject of the criminal charges. As a result, the government claims that Cooper has become entangled in Joyce’s cover-up and the perpetuation of the conduct, making him a percipient witness in the case, and requiring his disqualification. The government does not put forth any evidence that Cooper knew the information relayed to him by Joyce was false.

The Brief

The brief begins by noting the BBA’s “strong interest in protecting the sanctity of the attorney-client relationship and in safeguarding the constitutional right of lawyers to advocate on behalf of their clients.” Indeed, we have a long history, stretching back decades, of speaking out on these issues as intervenor and amici.

Over twenty years ago, we intervened at the District Court level and later participated as amici when it made its way to the First Circuit Court of Appeals, in the case of U.S. v. Klubock, 832 F.2d 649 (1986). There, we voiced our support for the ability of a district court to use its supervisory powers to adopt a local rule that would require prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. The First Circuit ultimately agreed that adoption of such a rule was a “sound use” of the court’s supervisory powers, noting the implication of due process and the right to counsel of choice under the Sixth Amendment.

Since then, we drafted and joined many briefs that address the importance of attorney-client privilege and the First and Sixth Amendment rights implicated in the attorney-client relationship, including, most recently, a brief in Commonwealth v. Wade. There, we expressed grave concern when a trial court interpretation of a statue would have required counsel to reveal confidential communications protected by the attorney-client privilege. In this brief we noted that “[t]he attorney-client privilege is critical to the proper functioning of the criminal justice system in Massachusetts. Safeguarding the attorney-client privilege is thus a vital concern for the BBA.”

Given this long history, we felt it necessary to respond to the government’s motion to disqualify Joyce in this case, which, as mentioned, has caused a great deal of alarm raised serious concerns across the legal community in recent weeks. A brief filed by the Massachusetts Academy of Criminal Defense Lawyers, the Massachusetts Bar Association, and the ACLU of Massachusetts, and others expounds on the Sixth Amendment right to counsel implications of the matter. Our brief acknowledges these concerns and hones in on another important right implicated: the First Amendment right of all attorneys to petition the government and to speak publicly on behalf of clients.

You can read the full brief here.

To summarize, the BBA brief posits that the government’s contention that defense counsel in a criminal prosecution can be disqualified, and attorney-client privilege lost, if the lawyer makes allegedly false statement in a submission to a state agency even in the absence of evidence that the lawyer knew the statements were false when made, would violate well-established constitutional protections of the right to petition the government. The First Amendment provides that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances,” a right commonly exercised through counsel.

The defense counsel’s presentation of his client’s defense to the Ethics Commission was a protected form of petitioning activity, a protection that extends to statements that are not made with knowledge of falsity, as it is recognized that some false statements will be inevitably covered in order to protect speech that matters. The government’s theory, however, would require that defense counsel guarantee the truth of factual assertions from the client, which would raise serious barriers to the attorney-client privilege and strain the right to petition. The brief provides:

 …the free flow of information between defense counsel and the government promotes the administration of justice. Imposing significant new barriers to pre-charging advocacy – such as the fear that an innocent misstatement will result in disqualification – would be both unconstitutional and contrary to the public interest.

In sum, without proof that a lawyer knowingly shared false information on behalf of the client, the Petition Clause of the First Amendment does not allow for the government to disqualify counsel solely because they repeat the defense.

The brief also addresses the First Amendment protections of a lawyer’s statement to the press on behalf of a client, as the government’s motion to disqualify also relies on the defense counsel’s allegedly false statements to a newspaper reporter investigating Joyce’ s conduct. Here, the brief highlights the Supreme Court case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), where the Court held the First Amendment protects attorney speech about pending cases and can only be punished upon a showing that the speech will cause a substantial likelihood of materially prejudicing an adjudicatory proceeding. As a result, without evidence that defense counsel knew the information provided was false, the disqualification of counsel for publicly disclosing a client’s position on a matter of public concern would infringe on the First Amendment protections afforded attorney’s statements to the press.

…

We are grateful to have had the opportunity to weigh in on this matter, so critical to the BBA as an association of attorneys. And we are especially grateful of the significant efforts put forth by drafter Jon Albano, who had this to say about the brief:

We believe the government’s motion threatens the constitutionally protected right of a lawyer to present a client’s defense to courts and to government agencies. A lawyer should not be disqualified for presenting a client’s side of a case when there is no evidence that the lawyer knew the client was not telling the truth.

We will be following the disposition of the motion closely and will update this space with new developments. In the meantime, click here to learn more about our past amicus advocacy.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Last month, BBA President Mark Smith submitted a letter to the Executive Office of Public Safety and Security (EOPSS) expressing concerns with the new Department of Corrections policy on prisoner visits currently under consideration. The policy would require visitors to be approved and limit the number of individuals allowed to visit, with those in maximum security being permitted to have no more than five names on their preapproved visitors list, inmates in medium security being permitted to have no more than eight, and inmates in minimum security being permitted to have no more than ten. Incarcerated individuals will be allowed to revise their visiting list twice each year.

The letter expresses an understanding of EOPSS’ efforts to improve safety and reduce substance use in prison and jails, where substance use and addiction rates remain high. However, it also highlights that “[r]esearch clearly indicates that prisoners benefit substantially from the ability to maintain familial, social, and community ties while incarcerated, and thus the opportunity to visit with relatives, friends, community leaders, and others is critical to improving their chances to successfully and productively re-integrate into society upon release.”  The letter concludes by seeking a few answers, including the rationale behind the decision to limit the opportunity to change a visitor list to only twice a year, the data and research that was the basis of the new policy, and the specific additional benefits the new policy achieves above the current mandatory search policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Today, the BBA submitted a letter to Justice Elspeth B. Cypher of the Supreme Judicial Court (SJC), requesting a full-bench review of a recently-filed petition that asks the Court to ban U.S. Immigration and Customs Enforcement (ICE) agents from making civil arrests in and around courthouses.

Background

Over a year ago, the issue of ICE targeting immigrants for arrest in and around courthouses came to national attention when ICE agents appeared at a courthouse to detain an undocumented woman who was seeking a protective order against her allegedly abusive boyfriend. The rise in accounts of these actions began following the release of new executive orders and instructions on immigration enforcement, which called for an increase in interior enforcement and the expansion of enforcement priorities to cover essentially all immigrants in the country without legal status.

A recent report from the Northeastern University School of Law Immigrant Justice Clinic highlights these increasing accounts, and harmful effects, of arrests of immigrants by ICE officials in and around Massachusetts courthouses. The report showed that ICE is indeed conducting arrests at numerous courthouses in the Commonwealth, and the data compiled in the report relates to ICE activity at twelve different courts. The report further concluded that “ICE is targeting both documented and undocumented immigrants, with no apparent regard for the seriousness of the pending charge. Many of those who have been arrested are longtime residents with U.S. citizen family members.”

It does not appear that immigration enforcement activities, including those in and around courthouses, are set to slow down in the near future. In fact, those jurisdictions that have previously extended protections to immigrants could very well see even more aggressive enforcement. In late September 2017, the Trump Administration announced and carried out enforcement activities specifically targeting regions where deportation officers were denied access to jails and prisons or where ICE detainers were not honored. In their statement on the raids, ICE officials specifically mentioned Massachusetts, in light of the SJC’s decision in Lunn v. Commonwealth, which held that honoring an ICE detainer would be tantamount to an arrest, and that no law in Massachusetts allows a law enforcement official to arrest someone without a warrant for an immigration violation, a civil offense. And in January of this year, ICE issued a directive that revealed its intent to continue these arrests, outlining a specific policy for actions in and around courthouses.

The Petition

On March 15, Greater Boston Legal Services (GBLS), the Committee for Public Counsel Services (CPCS), and the Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) filed a petition In the Matter of c. Doe & Others (SJ-2018-0119). The Petition asks that the Single Justice in the case, Justice Cypher, reserve and report the entire matter for full bench review, so that the SJC may grant a writ of protection that would ban civil arrests, including those civil immigration arrests conducted by ICE officials, for individuals in state courthouses or traveling to and from official matters with the courts.

Petitioners in the case include a juvenile defendant with a crucial noncitizen witness too fearful to appear in court, and seven noncitizen petitioners who are afraid to appear, including: 1) a mother seeking guardianship of her disabled daughter, 2) a tenant claiming to have been illegally evicted from her home, 3) a victim of an assault, 4) a mother entitled to unpaid child support, 5) a victim of domestic violence seeking a restraining order, 6) a long-time lawful permanent resident facing a criminal charge, and 7) a woman pursuing a claim of wrongful dismissal from her job.

The Petitioners “respectfully request that [the] court report the matter to the full bench, so the Court can rule on this matter of vital importance and grant a writ of protection from civil arrest.” Towards this end, the petitioners make four arguments:

1. Under common law, all those present within the Massachusetts Trial Courts and their environs, and those having business before the courts who are coming to, attending, and returning from those courts, including petitioners, are privileged from civil arrest – including civil immigration arrest.
2. The common law privilege against civil arrest in and around state courthouses falls squarely within the powers reserved to the states under the tenth amendment.
3. Application of the common law privilege to civil immigration arrests is essential for noncitizens to exercise constitutional rights that can only be asserted by physical appearance in court.
4. The Court should issue the writ of protection confirming that the Massachusetts common law privilege against arrest applies to civil immigration arrests as part of its broad, superintendence powers under G.L. C. 211, Section 3.

The BBA Letter

The BBA has been following the issue of ICE in courthouses since the reports first began over a year ago. Last April, at ABA Day in Washington, we had the chance to discuss our concerns with the Massachusetts Congressional Delegation, and we reported on passage of Resolution 10C, which called on Congress to codify courthouses as a “sensitive location” for immigration enforcement purposes, by the ABA House of Delegates at their Annual Meeting in August. We’ve been keeping such a close eye on this matter because of its connection to issues of access to justice and the administration of justice.

Our letter, which does not weigh in on the specific arguments in the petition, but urges for review by the full bench, points to this interest:

For decades the BBA has advocated fiercely for [access to justice and the fair administration of justice] by, among other things, producing reports that make the case for expanding access to attorneys to those who cannot afford it, and by calling for an adequately funded judiciary in the state budget—all because we recognize that fair and equal access to the courts is a core requirement of a well-functioning democracy.

Over the past year, many in the legal community, including bar associations, judges, prosecutors and defense attorneys, and advocacy organizations and elected officials have expressed grave concerns about what ICE enforcement will mean for justice systems throughout the U.S.

For example, Washington Chief Justice Mary Fairhurst wrote in a letter to DHS that “when people are afraid to appear for court hearings, out of fear of apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner, who wrote to then-Secretary of Homeland Security John Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey also expressed the potential adverse consequences of courthouse arrests by ICE, writing in a letter to an ICE Special Agent last February that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action.  If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity.  Further, individuals who currently come to our Courts to help themselves or a loved one in obtaining a civil commitment for detox or treatment will be reluctant to come forward if they fear immigration consequences. Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety.  In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

Our letter highlights these concerns, shared by so many across the country, and in a statement on the letter, BBA President Mark Smith stated:

Given the BBA’s long tradition of working to expand and protect access to justice and the fair administration of justice, and the gravity of the issues at hand here, we believe it is important for this petition be reserved and reported to the full SJC bench.

We are grateful to have had the opportunity to weigh in on this important matter and will be following the development of the petition closely. Continue to watch this space for more updates!

 —Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Last week, the BBA Council was honored with the presence, at their monthly meeting, of Chief Justice Ralph D. Gants of the Supreme Judicial Court (SJC), who spoke on matters of importance facing the state courts.  As a matter of practical concern, the judiciary budget is always on Chief Gants’s mind, and that was certainly the case at this presentation.

The debate on the Fiscal Year 2019 (FY19) budget formally began last month with the filing of Governor Charlie Baker’s proposal, known as House Bill 2 (or H. 2).  The court system had requested a 2.2% increase this year for maintenance-level funding, which does not include the cost-of-living increase demanded by the unions with which the courts are currently bargaining.  What the Governor has suggested amounts to a 1.8% increase—$3.4 million short of their goal, but still the best starting point that the Chief Justice says has seen in his three-and-a-half years in that position.

However, he noted that the court system is still seriously short-staffed, particularly with regards to probation and courthouse security.  He said his highest priority is hiring more probation officers, especially as the courts are now asking them to be more involved in helping judges craft sentences, providing resources on diversion programs and pre-trial release, and spending more time with individuals suffering from mental-health and substance-use problems.

He said that apart from the maintenance budget, the courts were seeking funding for several modules, including for the specialty courts; for a program to address racial bias in the court system; and for an effort to create a triage program in the Family Court, which would provide initial case management in order to seek alternative resolutions that don’t involve litigation.  Chief Justice Gants noted that the Governor’s proposed budget would fund the Housing Court module, but would do so by taking it out of the rest of the Court’s budget.

On criminal-justice reform—another priority of both the Chief Justice and the BBA—he said that, with the omnibus legislation pending in the State House now in a conference committee, where discussions are being kept confidential, he remains a spectator like almost everyone else.

Chief Justice Gants said that a key area in which the BBA could offer assistance is in advocating for reform to mandatory minimum sentences, to which some of the Commonwealth’s District Attorneys object.  Chief Justice Gants noted that both proposed bills before the conference committee offer some reform in this area, with the Senate’s bill going further than the House’s.  For example, the two bills differ with respect to whether or not separate mandatory minimums for dealing drugs in school zones should be maintained.  Chief Justice Gants noted that there is another stand-alone crime for selling drugs to minors, and that he believes the mandatory minimum sentence should be removed, telling the Council he’s never seen an appropriate case for a separate school-zone charge—one which is used only as leverage in plea negotiations.

He expressed his concern about racial disparities in sentencing, particularly for drug crimes with mandatory minimums.  As he reminded the Council, each department of the Trial Court with criminal jurisdiction has recently developed best practices for sentencing, which the Court is now training judges and probation officers on.

Ralph Gants, Chief Justice of the Supreme Judicial Court, speaking to the BBA Council last week

Another area where Chief Justice Gants and the BBA both lobbied the Legislature is the statewide expansion of the Housing Court.  That effort produced results last year, effective July 1, 2017, and the build-out is well underway.  He said that the Court is in the process of staffing the expansion, and that there would be a new Metro-South division, to be based in Brockton (with discussion ongoing in the hope of opening a housing session in Framingham), while Cape Cod and the Islands would be incorporated into the Southeast Housing Court.

Returning to an issue that has been much in his thoughts of late, Chief Justice Gants said that of the seven Trial Court departments, the Family Court is currently under the most stress.  He noted that this was the department with the second highest percentage of pro se litigants (after the Housing Court), and that the matters litigated in this court are often complex and emotionally taxing.  Furthermore, unlike in other courts, “it’s always Groundhog Day”: Even after a case is closed, the parties often return to court seeking modifications in their situation.  Finally, written decisions in this court are required by law, meaning that judges in the Family Court have a heavy load of writing.  He said that he had asked retired SJC Justice Margot Botsford to study problems in the Family Court and consider what could be done to address them.

Another issue making the Chief Justice uneasy at the moment is the dearth of lawyers to take on care-and-protection cases in the Juvenile Court, particularly in Western Massachusetts.  He said that in cases where the Department of Children & Families seeks to remove a child from the parents’ custody, they have the right to a hearing within 72 hours.  If the parties are indigent, both parents and the child have the right to state-appointed counsel.  However, Chief Justice Gants said that as of October, approximately half of the mandatory hearings in the western part of the state were being postponed, often for one to two months, due to lack of counsel.

Chief Justice Gants expressed his deep concern about this problem, saying that it is unacceptable that people’s rights are not being met due to lack of access to counsel.  He noted that some attempts had been made to address the problem; the Legislature temporarily increased the hourly rate for attorneys in these cases to $75 per hour once 350 hours of casework have been completed, and judges now mention the importance of doing this type of work at all new-lawyer swearing-in ceremonies.  However, it is sometimes difficult to interest attorneys in taking on these cases, as they take place in a closed courtroom, without the opportunity for professional publicity, and can be emotionally draining.  Chief Justice Gants expressed his commitment to solving the problem, saying that the state should not set a precedent of allowing people’s rights to be violated due to lack of counsel.

Chief Justice Gants also said that each court with civil jurisdiction had created a menu of options for alternative dispute resolution—an undertaking he spearheaded, and to which the BBA contributed.  He encouraged Council members to spread the word to colleagues and clients that these options are available.

Chief Justice Gants also mentioned that he was troubled by a recent American Bar Association report on lawyer and law-student well-being, which showed that a disproportionately high percentage of third-year law students experience depression compared to the general population, and that lawyers have one of the highest suicide rates of any profession.  He noted that lawyers and law students may hesitate to seek mental health assistance, especially as in some states mental-health concerns can preclude bar candidates from passing the character-and-fitness test.  He also observed that the bar as a whole may be less community-oriented than it used to be, and that in general people are becoming increasingly isolated due to changes in technology.  He said that he was considering whether the Massachusetts courts should do anything to address this problem.

Finally, Chief Justice Gants spoke about the Massachusetts Access to Justice Commission, which he co-chairs with Susan Finegan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  He said that the Commission had created the Massachusetts Justice for All Strategic Action Plan with the help of a grant from the Justice for All project, and that the report was available for viewing on the Commission’s website.  He noted that the report focuses in particular on debt collection, housing, and the Family Court, and said that the Commission will likely seek additional grants to help implement access-to-justice solutions in these areas.  He said that the state cannot continue to rely solely on legal aid organizations to provide access to justice, noting that the Legal Services Corporation is chronically underfunded and that its budget is particularly threatened under the current federal administration.  He said that the Commission hoped to create a virtual court service center, and that he hoped to draw other agencies, such as public libraries and social services organizations, into the process.

In response to a question, Chief Justice Gants said that the annual cap on hours for private attorneys handling care-and-protection cases through CPCS had been raised a few years ago from 1,650 to 1,800 hours per year, if CPCS finds that certain conditions are met.  (Just recently, a special temporary exemption was added by the Legislature, allowing for a 2,000-hour cap in Hampden County only, where the need is most urgent.)  He said that he didn’t think it would be helpful to raise the cap further, especially as lawyers taking on these cases might not have the appetite to do more hours.  Instead, he hopes more lawyers will get involved.

A Council member brought up the issue of pathways to judgeships for women and minorities in the state, particularly as it is increasingly difficult for attorneys to get trial experience, which can pose a barrier in the judicial nominating process.  Chief Justice Gants acknowledged that the number of female judges and judges of color in the state is declining, despite efforts by many, himself included, to increase diversity.  He said that ahead of the annual Bench-Bar conference in April, court leaders will meet with the affinity bar associations to discuss leadership development and pathways to judgeship.  He noted that the Governor’s Council does consider trial experience to be an important element in selecting judges, but agreed that it is hard to get this experience, particularly for attorneys in large firms.  He noted that state court judges don’t typically approach counsel to ask them to undertake individual cases, as federal judges often do.  He also said that a disproportionate percentage of incoming judges are former District Attorneys or public defenders, and that this is not ideal, as it is important to have a diversity of practice setting experience among judges.  He encouraged Council members to share their thoughts with the Court and other stakeholders as to how the pool of candidates for judgeships could be broadened.

We’re always pleased to welcome the Chief Justice to Council—and to share his report with you here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

In January 2014, the BBA launched the Human Trafficking Subcommittee of the Delivery of Legal Services Section. Following a successful Human Trafficking Symposium in June 2013, the BBA formed this Subcommittee so that we could continue to focus on the issue. Alec Zadek of Mintz Levin was selected as a co-chair upon its launch and has remained in the position over the past four years, and he’s now joined by Lavinia Weizel, also of Mintz Levin.

Since its launch, the Subcommittee has hosted a number of programs and developed an interest in a number of policy proposals, including H. 766, An Act to Reduce Sexual Exploitation of Human Trafficking, which Alec and Lavinia helped to draft. This bill, and the similar S.906, An Act to enhance the lives of survivors of human trafficking, establishes procedures for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker.

Initially, the Human Trafficking Subcommittee, with endorsement from the full Delivery of Legal Services Section, sought BBA support for H.766, but in the meantime, as part of the Criminal Justice Reform debates, both H.766 and S.906 were included as amendments in the respective House and Senate packages. Each of the amendments contained various, mostly minor, modifications and are now in Conference Committee. The Conference Committee will report out one of the versions, combine the two and report out a hybrid, report out an entirely different version, or decline to report out any version or hybrid.

Broadly, all of the proposed versions of the legislation would update the Massachusetts human trafficking laws passed in 2011, to address those instances when individuals operating under the control of a trafficker are arrested and convicted of prostitution-related offenses. More than thirty other states have passed similar laws, which streamline the process of vacatur, and often record sealing, for those who have been trafficked. Existing laws in Massachusetts allow criminal defendants to seek post-conviction relief under the Massachusetts Rule of Criminal Procedure 30(b), but this process is complex, unpredictable, expensive and often challenging for indigent survivors to navigate on their own.

Legislation that addresses this challenge can ease the process through a number of means, including the creation of a presumption, upon a showing that the survivor was trafficked at the time of the underlying offense, that a conviction for one of the relevant offenses was the result of human trafficking. In addition, traditional hearsay rules can be relaxed so that official documentation can be considered by the court, reduce the need for voluminous filing through the use of a standardized form, and provide for the automatic sealing of records in certain circumstances.

Because of the various versions pending, and because advocates like Zadek and Weizel felt any of the proposed language would be a major improvement in the processes of post-conviction relief for survivors, the proposal eventually evolved into a broad statement of support for the creation of a streamlined process, without comment on any specific language. Following an enlightening presentation by Zadek and Weizel, the Council voted to endorse the proposal.

With the vote, the BBA expresses its support for legislation that would create an efficient, and less-onerous, process for survivors to pursue vacatur of certain offenses that result from human trafficking – especially for acts undertaken as a juvenile – and sealing of arrest records and any other criminal records associated with such convictions. From an access to justice perspective, the creation of a streamlined process is crucial to ensure that survivors have an accessible, efficient, and effective means to remove and reduce barriers to rebuilding their lives.

The presence of a criminal record creates major legal and practical barriers for individuals seeking critical life necessities, including, but not limited to, employment, housing, education, and healthcare. The recent BBA report on Criminal Justice Reform, No Time to Wait, discusses the broad array of serious and long-lasting consequences that accompany criminal convictions. For survivors of human trafficking, who often face these barriers on account of criminal convictions for acts completed while under the control of a trafficker, that burden is especially unwarranted. Without this process survivors of trafficking, facing unemployment, housing insecurity, and a lack of access to other crucial services, are more likely to find themselves back under the control of a trafficker or in other difficult or dangerous situations that can undermine their ability to successfully re-integrate into society.

The BBA is proud to support measures that will create meaningful access to post-conviction relief for survivors and will be respectfully urging the conference committee to ensure that this opportunity to improve access to justice for these survivors is not missed. Continue to watch this space for more updates about the progress of these proposals, and the continuing criminal justice reform debates.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

You may recall that the BBA is continuing its advocacy in support of H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny. These two identical bills would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. Over the summer, we presented testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities, and you can read about that opportunity and why we support the proposed bills here. As we outlined there, this 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.

Just this week, we continued that effort by submitting a letter to Speaker of the Massachusetts House of Representatives, Robert DeLeo, respectfully urging him bring the bill to the House floor for a vote. The letter noted the BBA’s own long history of defending principles of non-discrimination and equal protection and focused on a few of the legal aspects of the legislation.

While the future of federal protections for lesbian, gay, bisexual, transgender, and queer (LGBTQ) populations remains under threat, it is crucial the Commonwealth ensures that all residents, regardless of sexual orientation and gender identity, are protected from abusive and discriminatory processes – especially children. Hopefully, these protections will finally be codified this year, and Massachusetts can join the nine other states that currently have laws barring the use of conversion therapy on minors. We will, as usual, keep you posted about the status of H.1190 and S.62.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

In 2011, the BBA Council voted to support the Massachusetts Access to Justice Commission proposal to institute a pro hac vice admission fee, as had already been done in 41 other states and the District of Columbia. Following this proposal, the Supreme Judicial Court (SJC) Rules Committee proposed, and the SJC eventually adopted, SJC Rule 3:15, Pro hac vice registration fee, which imposes a $301 per-case fee for out-of-state lawyers seeking to appear in Massachusetts Courts, unless the attorney is providing pro bono legal assistance to an indigent client. Under Rule 3:15, the proceeds go to the IOLTA Committee and are then distributed, in the same proportions as is its other revenue, to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation, and the Boston Bar Foundation, in order to provide civil legal aid to low-income residents of Massachusetts.

Earlier this year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and last month the President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. The increase itself would still place Massachusetts within the range of existing fees, and states like Connecticut and Maine have fees that are above $551.

Overall, the BBA Council viewed the increase as reasonable within the context of the fee rates in other states and also an important way to increase access to justice in the Commonwealth. The initial proposal stemmed from a sharp drop in IOLTA revenue, and unfortunately, projections for IOLTA revenue remain worryingly low, and as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth. The fee rise would result in a net increase of nearly $90,000 to legal services programs. We are very thankful of the Court’s long-standing support of access to justice and hope they will bolster these efforts by moving forward with the fee increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association