BBA, Law Firms, and Corporations Coming Together on Diversity

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Advancing diversity and inclusion in the legal profession has long been a core element of the BBA’s mission, and we are proud to be the first metropolitan bar association to support both the ABA’s recent Resolution 113 and a commitment letter from a number of general counsel.  Both items, approved by a unanimous vote at our November 15 Council meeting, call for law firms and in-house counsel to work together in order to promote diversity in the legal profession.  Our endorsement letter goes a step further: we will assemble a group of Boston leaders to develop next steps for this initiative, both locally and through other metropolitan bar associations nationally.

The ABA passed Resolution 113 at its House of Delegates meeting held August 8-9, 2016.  It reads:

RESOLVED, That the American Bar Association urges all providers of legal services,

including law firms and corporations, to expand and create opportunities at all levels of

responsibility for diverse attorneys; and

FURTHER RESOLVED, That the American Bar Association urges clients to assist in the

facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the

legal services they purchase, both currently and in the future, to diverse attorneys; and

FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys” means

attorneys who are included within the ambit of Goal III of the American Bar Association.

It is accompanied by a detailed report explaining the need for the Resolution and the ABA’s role in diversity issues.  The report includes a model diversity survey asking for firm demographics in a number of categories including leadership, recent hires, and promotions.

The Resolution was supported by five national affiliated bar associations: The National Affinity Bar Association, The Hispanic National Bar Association, The National Asian Pacific American Bar Association, The National Native American Bar Association, and The National LGBT Bar Association.  It was adopted unanimously.  Four individuals who worked on it spoke in favor: ABA President Dennis Archer (Dickinson Wright), Alan Bryan (Wal-Mart), Mark Roellig (former BBA Council member, Executive Vice President and General Counsel for MassMutual), and Wendy Shiba (retired corporate attorney).  Though others were lined up to voice their support, because there was no opposition, the presiding officer called for an immediate vote.

Shortly thereafter, the Resolution and model survey gained support from a group of general counsel.  In early September, the BBA received the general counsel commitment letter, signed by 24 general counsel — including five from Massachusetts companies: Susan Alexander, Biogen; Paul Dacier, EMC; Michael Parini, Vertex Pharmaceuticals; Mark Roellig, MassMutual Financial Group; and Trish Walsh, Voya Financial – and sent to all their colleagues at other Fortune 1000 companies.  This letter asks the recipient to support the following:

  1. You agree that you support ABA resolution 113;
  2. You agree that you will ask the firms that provide a significant portion of your legal services to complete the Model Survey (of course you may continue to ask these firms additional questions specific to your business and the actual attorneys that serve you);
  3. You agree that firms you currently do not retain and that are competing to handle a significant matter for your company will complete the Model Survey;
  4. You agree that the information obtained through the Model Survey will be used as a factor in determining what firms to retain or terminate in providing legal service to your company; and
  5. You agree that you will advise Keevin Woods, Director, Commission for Racial and Ethnic Diversity in the Profession at the American Bar Association, keevin.woods@americanbar.org, and Alan Bryan, Senior Associate General Counsel – Legal Operations and Outside Counsel Management for Wal-Mart Stores, Inc. at alan.bryan@walmartlegal.com, that you support the above four principles, such that they can work together to maintain and publish an ongoing list of those of us that have committed to them.

In the last few months, the number of companies endorsing the Resolution has continued to grow.  Currently there are more than 50 such supporters:

ABM Industries
American Express Company
Biogen
Boise Cascade
Booz Allen Hamilton
Bristol-Myers Squibb
Capital One Financial
CBS Corporation
The Clorox Company
eBay
Echo Star
Eli Lilly
EMC
Guardian Life Insurance
The Hartford
Hess Corporation
HP Inc.
Interpublic Group
John Hancock Financial
Kodak
Lincoln Financial Group
Lockheed Martin
LPL Financial
Macy’s
Marsh & McLennan
MassMutual
MasterCard
Mattel McDonald’s
McKesson Corporation
Meritor
MetLife
Microsoft
New York Life Insurance Company
Northrop Grumman
Northwestern Mutual
One America
PepsiCo
Pitney Bowes
The Principal Financial Group
Quest Diagnostics
Rockwell Automation
Securian Financial Group
Thrivent
TIAA
Travelzoo
United Airlines
Verizon Communications
Vertex Pharmaceuticals
Varian Medical Systems
Viacom
Visa
Voya Financial
Wal-Mart Stores
The Williams Companies, Inc.

The Resolution and letter were reviewed by all BBA Section Steering Committees, the Executive Committee and Council, and was unanimously supported.  Members noted the importance (a) to the profession of being able to gather comprehensive and annual data on diversity and (b) to general counsel of being able to compare firms “apples-to-apples,” both to each other and to aggregated data standards.  They also discussed the benefits for firms, such as receiving more detailed feedback from general counsels on their hiring decisions and streamlining the process for diversity reporting.

We look forward to continuing our commitment to diversity through this initiative and to convening a group of Boston leaders for this discussion.  We are extremely proud to be leading this push with our law firm and corporate partners in the Boston community and will keep you updated on all the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Stepping Up: Bridgeman Argument and the BBA’s Mission

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We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission.  This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all.  One place we see these tenets in action is in our amicus work.  From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.

In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157).  Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.  Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.

Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal.  Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.

Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem.  Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee.  We couldn’t agree more, and our brief makes that point as well.

The justices and attorneys also probed a number of other issues pertinent to our brief, mission, and Presidential letter:

  • At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually.  The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.

Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.

  • Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions.  The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so.  Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.

The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines.  They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  A global solution would, they argued, undermine this requirement.

  • What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants.  Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status.  Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.

The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally.  We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.

We are extremely proud of the work of our Amicus Committee on this case.  They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values.  As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA President Visits Veterans’ Treatment Court

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This Veterans Day, while we give thanks to the many veterans and their families who have sacrificed so much to assure our safety and security, we wanted to take the opportunity to report on our visit to Veterans Treatment Court.  You may recall that last year, BBA President Lisa Arrowood visited a number of Specialty Courts, including Judge Eleanor Sinnott’s Veterans’ Treatment Court (read about her visits to Drug Court, Mental Health, and Homeless Court).  She was so impressed by her experiences that we honored the Specialty Courts at our annual Law Day Dinner this past spring.

In case you aren’t familiar with them, so-called Specialty Courts are court sessions dedicated to resolving certain issues underlying criminal behavior and/or treating certain populations.  There are several types of specialty court sessions:

  • Drug Court – adult and juvenile, and family sessions
  • Homeless Court
  • Mental Health Court
  • Veterans’ Treatment Court

They provide court-supervised probation and mandated treatment focused on treating mental health or substance abuse issues in the defendants’ lives.  Judges balance treatment and accountability for participants – considering the entirety of concerns they face and meeting with them frequently to monitor and work on solving the problems underlying their criminal behavior.  Judges provide support and oversight, working with probation officers who provide intensive supervision and Department of Public Health clinicians who help participants to access effective treatment and therapy.

There are 36 Specialty Court sessions in District and Boston Municipal Courts throughout the state, including 23 drug courts, five veterans’ treatment courts, and eight mental health courts.  They have received funding through the state budget since FY2015 ($3 million).  They were level funded this past year at $3.2 million after receiving a $230,000 increase in FY2016, despite the Trial Court requesting a $2.8 million module to fund expansion efforts.

carol-with-judge-hogan-sullivan-vets-court
Veterans’ Treatment Court Judge Mary Hogan Sullivan and BBA President Carol Starkey

BBA President Carol Starkey jumped at the chance to see the Specialty Courts firsthand.  On November 1, she spent the afternoon at Judge Mary Hogan Sullivan’s Veterans’ Treatment Court in Dedham District Court.  Judge Hogan Sullivan serves as Director of Specialty Courts for the District Court Department and established the Norfolk County Veterans’ Treatment Court in 2012, the first of its kind in Massachusetts.  As described on the court’s website:

Veterans’ treatment courts are designed to handle criminal cases involving defendants who have a history of military service through a coordinated effort among the veterans services delivery system, community-based providers, and the court. The sessions aim to improve public safety while dealing with the underlying issues of posttraumatic stress disorder, traumatic brain injury, and military sexual trauma.  Abstinence from drugs and alcohol, mandated treatment, swift accountability, and weekly interaction with the court are requirements of the Veterans Treatment Court.

The program typically requires a 12 to 24 month commitment, which must be voluntarily given by the participant who also must agree to participate in “any and all” court recommendations.  Participants must have at least completed basic training to be eligible.  However, it is open to all veterans regardless of their discharge status, though only those with honorable discharges can access certain Veterans Affairs (VA) benefits the court has access to.  Its stated mission is: “To support veterans and their families through a coordinated effort among the veterans services delivery system, community based providers, and the Court, thereby improving public safety while leaving no veteran behind.”  This packet from the court has extremely detailed information about the process and procedures it follows.

We had the pleasure of meeting with Judge Hogan Sullivan prior to the session.  She candidly explained that Veterans’ Treatment Court is “the most challenging thing I’ve ever had to do.”  She thinks of her court as basically a hybrid between mental health and drug courts, though it has some further complicating factors that those courts do not, such as higher occurrences of certain mental health afflictions like post-traumatic stress disorder (PTSD) and depression.  It also often has to address violence issues, many related to guns, unsurprisingly since they are a staple of military service.  Because of the intensiveness of the program, the court can accommodate only about 30-35 individuals at a single time.  While most of the recommendations for program participation come from probation, some also come from defense attorneys, whom we hope will increasingly recommend the court for their clients as a way to secure services and decrease the potential for recidivism.

Judge Hogan Sullivan compared her process to peeling an onion – her team peels through issues, treating them layer by layer at the appropriate time and in the most effective ways.  Most of the defendants come to court weekly unless they are in residential treatment programs.  Once there, they benefit from the assistance of a defense attorney, probation officer, clinician, veteran outreach worker, and even the prosecutor plays an important role.  They are also assigned a volunteer veteran mentor who is not involved in their cases, but is simply there to provide life support and understanding for the issues unique to their experiences.  This team talks regularly over the course of the week and meets for upwards of 90 minutes prior to open court, during which they discuss in detail the challenges, successes, and setbacks experienced by the program participants.  It was impressive to see how well they understand and care about the individual issues faced by each participant and how devoted they were to coming up with the most appropriate and effective solutions.

While the investment in personnel time and services are high, the results are remarkable.  Graduates of Judge Hogan Sullivan’s Veterans’ Treatment Court have a recidivism rate of about 11.5%, while the average rate in Massachusetts is between 40 and 50 percent.  In its nearly 4 years of operation, only two people have picked up new charges since graduating, and while a handful more have relapsed with drug addiction issues, they have sought the help they needed before turning to the criminal behavior that put them in the justice system in the first place.

Yet, despite the tremendous devotion of the staff and hard work of the veterans involved, the court is held together on a shoestring budget.  They struggle to reach veterans who have lost their drivers’ licenses due to their criminal sanctions and have trouble accessing public transportation to the court or treatment services because there is no funding to assist them.  There isn’t even enough money to be able to provide graduates with certificates or awards at the end of their grueling period in the program.  Judge Hogan Sullivan recognizes the importance of being able to offer participants carrots in addition to the stick of stepped up sanctions and so purchases a supply of business cards saying simply “Congratulations, you did exactly what we asked of you” which she gives out exceedingly sparingly to assure they carry special sentimental weight.

In all, our day at Veterans’ Treatment Court was eye-opening and moving.  We applaud the remarkable work being done by Judge Hogan Sullivan and her team in Dedham.  Stay tuned next week to hear about our visit to Bridges, Judge David Weingarten’s Mental Health Session in Roxbury District Court.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Meets with the Chief Justices

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We do it every fall.  Because of the primary importance to the BBA of the judicial system in Massachusetts, the incoming BBA President meets each year with the chief judges at every level—the heads of the SJC and the Appeals Court, the US District Court, Bankruptcy Court, and Circuit of Appeals, the Chief Justice and Administrator of the Trial Court (together), and the leaders of each of the Trial Court’s seven departments: Superior Court, District Court, Boston Municipal Court, Housing Court, Juvenile Court, Land Court, and Probate & Family Court.

As you can imagine, these thirteen meetings take up a great deal of the President’s time.  But the effort is always worthwhile, for the opportunity it provides to discuss our mutual plans priorities for the coming year and where they overlap, to reaffirm our commitment to adequate funding and other support necessary to enable the Massachusetts courts to maintain their preeminent position in the nation, and to promote a free-flowing back-and-forth throughout the year.

BBA President Carol Starkey recently wrapped up her chief-judge meetings, and, as usual, some common themes emerged:

Budget funding

Funding for the Trial Court is always one of the BBA’s top priorities and a focus of our advocacy at the State House.  The Court has recovered well from the budget setbacks that were necessitated by the Great Recession, becoming leaner and more efficient.  But recent years have found budget-writers in the Governor’s Office and the Legislature tightening their belts once again, and the courts have not been entirely spared.

For the current fiscal year (FY17), the Trial Court’s final budget of $639 million represents $15.4 million less than what they would have required to maintain level services.  As a result, they are making do by putting off some hiring, launching an early-retirement program, and accelerating efforts to do more with less, such as by shifting staff among courthouses, sessions, and responsibilities.

This budget crunch is taking its toll throughout the system, and we heard from several chief judges about its impact in their courts.  Chief Justice Paul Dawley, who oversees 62 courthouses in the District Court system—many of them aging badly—knows as well as anyone how urgent the need is for adequate court funding.

Online access to court records

This past year, the Trial Court issued a new rule on public access to court records on-line.  The process was challenging, as these debates are always fraught with tension over the competing interests of transparency and privacy.  The rules seek to strike the proper balance by creating limited exceptions to the general rule providing for accessibility.  Criminal cases, for instance, come with their own set of concerns, and the Court took steps to ensure that access to information on those cases did not undermine either the letter or the spirit of recent changes to laws on criminal offender record information (CORI)—changes designed to promote successful re-entry of ex-offenders.

Beyond that, the Court recognized that on-line access rules are a work in progress and that a one-size-fits-all approach will not succeed: The new rules provide for both a working group to oversee and study their implementation and for standing orders within each department that address their unique concerns.  (In fact, just this week, the Probate & Family Court followed up with a standing order rendering both docket entries and parties’ addresses in a broad range of cases unavailable through the on-line portal.)  Both the opportunity and the challenge presented to the judiciary, and court users, as records move on-line are clearly on the minds of many of the chiefs we met with.

Vacancies on the bench

We’ve written here before about how critical it is that qualified candidates apply for judgeships—and that lawyers who work with such people encourage them to do so.  Right now, several court departments are facing significant shortfalls on their benches, and getting more applicants is one piece of the puzzle in filling those seats.

With 7 vacancies (out of 49) expected by the end of this year, Chief Justice Angela Ordoñez of the Probate & Family often has to place herself on special committees, rather than ask one of her overburdened judges to take on such work as well.  At the Superior Court, Chief Justice Judith Fabricant has 13 openings and sees 7 more coming by the end of 2017.

In all, the Trial Court has more than 50 judicial vacancies at the moment.  And while nearly half of that gap is being filled, for now, by recall judges, the need is still great.  The Governor’s office, the Judicial Nominating Commission, and the Governor’s Council are all hard at work, playing their respective roles in nominating, vetting, and confirming qualified candidates, but we will need to keep an eye on the situation.

One aspect of the process that all players are focused on is diversity among judges—racial and ethnic diversity, as well as geographic diversity, gender balance, and a mix of backgrounds in terms of practice area and setting.  Several chiefs told us they, too, are keeping a close eye on the diversity of their judges.  Chief Ordoñez is taking on the problem by addressing the early end of the pipeline—pairing small groups of lawyers as mentors with minority students at not only local law schools but also colleges and even high schools, to help them see the law as a potential career path.

Judicial evaluations

Each year we hear the same appeal from multiple chief judges: Please urge practitioners in their courts to fill out and submit judicial-evaluation forms!  The information they produce can be invaluable in helping judges improve and making the chiefs aware of topics for continued trainings.

We know that some lawyers have concerns about the forms—that they aren’t used by the courts, that responses that could be read as criticism will make their way back to the judge in question with enough particulars to reveal the respondent’s identity.  But the chiefs take pains to stress to us, time and again, that they do indeed rely on the forms, and that they make every effort to maintain confidentiality by scrubbing details before sharing them.

We have pledged to the chief judges that we will continue to help them with the evaluation process.  At the same time, we are always interested in any questions or hesitations you may have about it, so please let us know!  The chiefs are eager as well to hear informally, through the BBA, of any problems that have come to our attention, whether with individuals or more generally.

LAR

Another topic that came up time and again was limited-assistance representation (LAR), through which an attorney can take on a client for discrete parts of a case, without being tied to the client for the entirety of the case.  The BBA is a strong supporter of LAR as a way to bridge the justice gap that leaves too many litigants without the means to pay for counsel yet unable to qualify for assistance from legal-services providers.  It can also help new lawyers establish and grow a practice.

We are always seeking ways to help educate attorneys on LAR; we’ve conducted many trainings on it, and we are planning more.  (We also recently submitted comments on new rules bringing LAR to Superior Court for the first time.)  Our meetings with chief judges are a chance to assess how well LAR is working in their courts, to learn which types of cases are best suited for LAR in each court, and to ask how the BBA can further promote the program.  We have also relayed fears shared by some would-be LAR practitioners that they will be unable to extricate themselves from a case after they’ve finished the limited work they signed on to handle.

According to Chief Justice Roberto Ronquillo, the Boston Municipal Court sees many cases (e.g., collections matters) that can be settled in one day with the assistance of counsel—yet often at least party is unrepresented.  He also offered insight into LAR from a trial judge’s perspective, giving us useful advice on how to increase their awareness of LAR as an option to suggest to parties.

At the Land Court, where Chief Justice Judith Cutler presides, judges frequently recommend LAR.  Yet they’ve encountered some problems in how it’s worked in practice—problems they were keen to get our help with.  Specifically, they’d like to see LAR attorneys help with a case earlier in the process.  A simple consultation with an LAR attorney at the outset can help prevent further problems down the line.  Too often, pro-se litigants fail to even respond to motions, only to seek counsel late in the game.  There is simply too much at stake in cases before the Land Court for that be a beneficial approach, and Chief Cutler is eager to see such problems averted.

Beyond these broad themes, the judges raised issues that are affecting their courts individually.  For example, Chief Justice Amy Nechtem of the Juvenile Court spoke with pride about the work they’re doing to address racial disparities.  Chief Justice Timothy Sullivan thanked us for our advocacy on behalf of expansion of his Housing Court to statewide jurisdiction—a battle that will continue in the new year.

From Chief Justice Scott Kafker, we learned of his initiatives to help Appeals Court justices work through their caseloads more efficiently and to get cases ready more quickly.

When we sat down with SJC Chief Justice Ralph Gants, it was clear that the state’s on-going effort to study our criminal-justice system, in conjunction with the Council of State Governments (CSG), was occupying much of his thinking.  Chief Gants, along with Governor Charlie Baker and the Legislature’s two leaders, was a signatory to the letter inviting CSG to assist in this broad review of policies and practices, and, like the others, he is a member of the steering committee that is guiding their work.

CSG anticipates filing a report with recommendations by the end of this year, in time for legislation to be filed at the start of the 2017-18 legislative session, and Chief Gants foresees a role—as do we—for the BBA to play in analyzing and commenting on the report and resulting bills.

Our meetings with the chief judges in the federal system tend to highlight different issues.  The Bankruptcy judges (whom we met with as a group, led by Chief Judge Melvin Hoffman) were proud of their new local bankruptcy rules and asked us to spread the word.  Chief Judge Patti Saris told us the US District Court is looking into developing its own local rules of civil procedure.  At both of these meetings, we heard laments about the difficulties new lawyers face in first passing the bar and then establishing themselves in their careers.  And Chief Judge Jeffrey Howard of the First Circuit Court of Appeals shared with us that while his court has made advances in technology, it’s difficult to keep up.  As a result, some attorneys bring their own equipment, which can put pro-se litigants at a disadvantage.

Finally, we had a bittersweet meeting with Trial Court Chief Justice Paula Carey and Court Administrator Harry Spence, because the latter will be retiring this April.  He will clearly be racing through the finishing line, however, and he and Chief Carey updated us on a variety of projects they have before them, including training for staff on implicit bias, a restructuring of personnel to upgrade security, and the Court’s 20-year plan for capital spending to set priorities for new construction.

These annual meetings provide a window into the thinking of the leadership at the judiciary, and we will continue to share with you what we learn.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Partners in Justice: The Bar and the State of the Courts Address

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SJC Chief Justice Ralph Gants was a model of efficiency last Thursday, managing to attend our Annual Meeting Luncheon where he saw our Amicus Committee honored for 20 years of outstanding advocacy and heard a keynote address from his friend and former law school classmate Professor David Wilkins shortly before giving his annual State of the Judiciary Address in the Great Hall of the Adams Courthouse.  His speech created some headlines (see e.g. Boston Globe, CommonWealth, WBUR, Mass Lawyers Weekly) with an announcement that the Courts would be launching a study on racial disparities in imprisonment statistics.  However, that was only a small fraction of the substance covered at the event, which also featured speeches by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence.  Between the three addresses, the speakers discussed how the Courts have developed and changed in recent years and provided a road map for where they are headed.  We are excited for the future prospects in store as these dynamic leaders have made tremendous strides in recent years to improve legal practice and access to justice.

Reflecting on the Last Four Years

Court Administrator Spence, giving his last address at this event before his five-year term ends in April, spoke about the effectiveness of his collaboration with Chief Justice Carey.  The Trial Court has indeed made great strides under their leadership including:

  1. Installing MassCourts in every courthouse to serve as a unified case management system, the first step to a “fully automated digital operation,” which the courts are aiming to complete by the end of 2019.
  2. Adopting evidence-based practices and risk assessment tools in the Probation Department.
  3. Combatting the opioid crisis through drug courts whose graduates are nearly two times less likely to recidivate than defendants in drug-related cases in other courts.
  4. Opening six court service centers to assist pro se litigants.
  5. Improving the capacity and capabilities of the Trial Court’s Facilities Management and Security Departments to assure safety and security in courthouses that continue to serve the public despite a severe shortage of capital investment.
  6. Implementing professional hiring and review procedures to assure highly qualified and professional court staffs.

Spence acknowledged the culture that paved the way for these and other changes, describing the 6,300 court employees as a “community that is committed to working in partnership with each other to improve the quality of justice.”  He described the Court’s commitment to constant improvement, driven by data gathering and analysis, and the increasing distribution of leadership points within what used to be a purely hierarchical structure.

We applaud Administrator Spence for his remarkable devotion to these causes and the incredible strides he has helped the Trial Court take in a short period of time.  We look forward to welcoming his replacement in the spring who we hope will meet the incredible expectations Spence has established for the position.

Looking to the Future

Chief Justice Carey spoke about her hopes and goals for the coming years.  Foremost, the Courts will focus on four “umbrella themes or principles:”

  • Continuous improvement
  • Racial and ethnic disparities
  • Public trust and confidence, and
  • The user experience

She explained that the Trial Court will be looking at its policies and practices to examine how decisions are made in cases and court administration in order to improve the administration of justice and ensure public safety.  This includes a number of initiatives aimed at increasing access to justice such as:

  • Expanding Court Service Centers which help pro se individuals navigate the court system.
  • Promoting the increased use of limited assistance representation, whereby clients can hire attorneys to assist them with a select part of their case.
  • Continuing to develop the language access plan to assure that everyone can read and understand important forms and documents.
  • Examining court fines and fees and the impact they have on certain populations.
  • Supporting the work of Specialty Courts which help defendants address the issues underlying criminal behavior in order to reduce recidivism.

The Chief Justice is also thinking about the court user experience, implementing trainings on domestic violence for judges, clerks, and court staff and the “Signature Counter Experience” program for all clerks’ offices which aims to instill best services practices for interactions with litigants, lawyers, law enforcement and other court house guests.

She closed by applauding the bar for its continued support and collaboration.  We look forward to continuing these efforts and look forward to all of the positive changes she has in store for the Trial Court.

The SJC Chief Justice Weigh-In

SJC Chief Justice Ralph Gants combined the two views, looking at the Court system today, where it’s been, and where he hopes it will go.  He began by acknowledging recent major changes as three justices were replaced with new appointees.

Next, he followed-up on a major issue from his 2014 address, the creation of expanded options aimed at streamlining civil litigation across court departments.  In the last year, the Superior, District, Boston Municipal, Probate and Family, and Land Courts all assembled working groups that proposed rules and practice changes that have the potential to save lawyer’s time and client’s money with more efficient practice.  The BBA played an active role in many of these, offering comments (read our recent blog posts on our comments to the Land Court and Superior Court).

Chief Justice Gants noted that the SJC just approved the final Superior Court rule changes that would allow parties to request an early nonbinding judicial assessment of a case, a case management conference, the immediate scheduling of a trial date, earlier pretrial deadlines, limits on discovery, and other opportunities to reduce the cost of litigation and obtain a quicker resolution.  It is now up to you all to take advantage of these changes.  In conversations at our Steering Committee meetings, we commonly heard that though people might not have articulable concerns about certain of these measures, they were skeptical that lawyers would use them (or that their clients would stand for them).  We hope you will give them a second look and try to incorporate them into your practice.

The Chief then turned his attention to access to justice issues.  As mentioned above, he made his biggest media splash by unveiling a plan to have Harvard Law School Dean and member of the BBA Statewide Task Force Expand Civil Legal Aid in Massachusetts, Martha Minow, lead a team to lead an independent research team to explore reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.  While we are certainly excited at the findings of this report, the Chief Justice also covered a host of other access to justice issue of similar import.  He spoke about how the Courts will continue to examine the fines and fees associated with the justice system to make sure that they are not overburdening those who can least afford it.  The Courts will also attempt to continue expanding Court Service Centers to assist pro se litigants and Housing Court Statewide (with our help) to assure that the entire state can access this valuable legal resource.

As always, we look forward to continuing to work with the courts on these and other initiatives, and in particular, we share the Chief Justices’ enthusiasm to review the forthcoming criminal justice reform proposals borne out of the Council of State Governments’ comprehensive study of Massachusetts criminal justice policies.  Quite simply, we will strive to live up to the title he bestowed to the entire bar, to be the Courts’ “partner in the pursuit of justice.”

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Applauds SJC for Enhancing Attorneys’ Roles in Judicial Ethics

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Yesterday, the BBA submitted comments to the SJC voicing its support for proposed amendments to SJC Rule 3:11, which establishes and governs the Committee on Judicial Ethics (CJE).  This rule underwent substantial changes last year, in which the BBA was involved.  At that time, we submitted a letter noting our support for the changes and also requesting some clarifications for how certain procedures would run.  The current proposed revisions seem to be in line with that request, specifically shedding light on processes and expanding privileges for how bar associations can be involved in seeking ethics opinions and advisories.

The 2015 revisions to SJC Rule 3:11 laid out a multi-tiered system of ethics advice, whereby judges can request Informal or Letter Opinions from the CJE and the SJC has superseding authority to issue Ethics Advisory opinions on its own initiative or at the request of a judge, lawyer, or group of lawyers or judges.  The current proposed revisions extend the right to request Informal Opinions to organizations or associations of lawyers or judges.  This means that bar associations will now benefit from an expanded ability to request opinions related to judicial ethics questions and at multiple levels, allowing for greater opportunity for review of any one issue.  We are confident that this proposed change will benefit the profession and practice of law in Massachusetts and thank the SJC for their thoughtful response to our 2015 letter.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Advocates for Resolution in Dookhan Scandal

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On Monday, the BBA filed an amicus brief in Bridgeman v. District Attorney (SJC-12157), the latest case pertaining to the misconduct of Massachusetts Department of Public Health’s Hinton Drug Laboratory chemist Annie Dookhan.  Our brief, written by our Amicus Committee Co-Chairs, Elizabeth Ritvo (Brown Rudnick) and Anthony Scibelli (Barclay Damon) argues for a global solution, that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of at least one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.

Background

In 2012, stories of misconduct at the Hinton Drug Lab first broke.  Soon, news stories revealed that Dookhan had engaged in criminal misconduct regarding drug evidence seized in connection with thousands of Massachusetts state and federal criminal cases.  Specifically, Dookhan mishandled drug samples, failed to conduct tests on samples she nevertheless labelled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, falsified evidence logs and reports regarding drug testing and quality control steps regarding laboratory equipment, and bypassed mandatory office procedures.

In December 2012, Dookhan was indicted on 27 criminal counts, including obstruction of justice, tampering with evidence, and perjury.  In November 2013, she pled guilty to all 27 counts and was sentenced to 3 to 5 years in prison, from which she was recently released.  In the meantime, the entire justice system has struggled with how to handle the fallout.  Dookhan could not identify the specific cases where she engaged in all of this malfeasance, and it has been impossible to independently determine the specific cases at issue.  Some affected cases involve multiple defendants; some defendants have multiple affected cases.  The most recent numbers submitted by the ACLU and CPCS indicate that there are about 24,000 outstanding cases with adverse dispositions (conviction, plea, CWOF) where Dookhan was either the primary or secondary chemist.  These numbers were derived from lists submitted by all seven of the DA offices that prosecuted Dookhan cases.  These cases involve about 18,000 individual defendants (some have multiple cases).

Effect on the Justice System

In response to the Dookhan scandal, in October 2012, the Chief Justice of the Superior Court assigned specific judges in seven counties to preside over special “drug lab sessions” to deal with post-conviction filings by defendants who had cases where Dookhan worked on controlled substance samples.  From October 15 to November 28, 2012, the judges presiding over the drug lab sessions held 589 hearings, which placed a significant burden on the courts.  In November 2012, the Chief Justice of the Superior Court also appointed five retired Superior Court judges as “special judicial magistrates” to preside over post-conviction proceedings regarding the Dookhan scandal.  The enumerated powers of these special magistrates included handling arraignments, setting bail, supervising discovery, and conducting hearings on motions.  Over six weeks in the fall of 2012, Superior Court judges held 589 hearings, and in the following three months, special magistrates held over 900 hearings.  These hearings were targeted to handle cases of affected individuals who were still in custody at the time, and primarily dealt with motions to either vacate or stay sentences.  However, these numbers (though very significant and reflective of the hard work of the magistrates), involved only a relatively small fraction of the cases affected by the Dookhan scandal.  The outcomes of these cases were mixed, with some defendants receiving stays and vacated convictions, others not, and some cases pleading out.

As these cases started to be litigated, several appellate decisions by the SJC created at least a partial framework for resolving the cases.

In Commonwealth v. Charles, 466 Mass. 63 (2013), the SJC resolved certain questions concerning the powers of the special magistrates.  For example the SJC held that the special magistrates did not have authority to allow a defendant’s motion to stay the execution of his sentence pending a motion for a new trial, but could report findings of fact and law to a judge of the Superior Court (who did have such authority).  Also, special magistrates could conduct plea colloquies and report findings about the voluntariness of the proposed pleas (and the factual basis for the pleas) to a judge of the Superior Court.

In Commonwealth v. Scott, 467 Mass. 336 (2014), the defendant pled to sufficient facts and entered into a plea agreement with the Commonwealth.  He was charged with possession of cocaine, and the Hinton drug lab certificate identified the controlled substance as cocaine.  After the Dookhan scandal came to light, the defendant filed a motion to vacate his plea, which was granted by the lower court.  The Commonwealth appealed, arguing in part that the defendant has an obligation to show that there was specific misconduct in his case, i.e., that Dookhan had falsified his test results in some way.  In response, the SJC held two things. First, in any case where Dookhan signed a drug certificate as either the primary or secondary chemist in a defendant’s case, the defendant is entitled to a conclusive presumption that Dookhan’s misconduct occurred in that case, that it was egregious, and that it is attributable to the Commonwealth.  Second, the defendant must still demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  The defendant’s case was remanded for proceedings on the second issue.  In short, the SJC established a global standard for finding misconduct, but still required a specific showing that knowledge of the misconduct would have influenced his decision to plea.

In the first Bridgeman case (Bridgeman v. Suffolk DA, 471 Mass. 465 (2015)), the SJC established other principles to guide resolution of the Dookhan cases.  In that case, the petitioners filed suit asking the SJC to protect defendants challenging an adverse disposition in any Dookhan case from facing more severe charges or greater punishment.  In response, the SJC held that “a defendant who has been granted a new trial based on Dookhan’s misconduct at the Hinton drug lab cannot be charged with a more serious offense than that of which he or she initially was convicted under the terms of a plea agreement and, if convicted again, cannot be given a more severe sentence than that which originally was imposed.”  However, the SJC specifically declined to enter a “global remedy” under its general superintendence powers, and declined to vacate all the Dookhan adverse dispositions.

Bridgeman II

We are now in the second Bridgeman case, SJC-12157.  It was born out of issues regarding a notice sent to all Dookhan defendants.  In August 2016, the various DAs sent the SJC, CPCS and the ACLU a notice it intended to send to all Dookhan defendants with an adverse disposition.  CPCS did not agree with this notice, or its wording.  This was a highly contentious issue and CPCS contends that the notice was “so poorly drafted that it will have the predictable consequence of limiting individual cases to a bare minimum. . . It is a poison pill.  Anyone who receives it could be misled, confused or both.”  Their opening brief in Bridgeman II lays out eight “peculiarities” with which it takes issue, including confusing language, lack of important information about rights of defendants and the outcomes of prior cases in the Dookhan scandal limiting their potential exposure, a requirement to contact the DAs for more information even though the DAs are adverse to the defendant, and that the included Spanish translation is unintelligible.

In response, CPCS and the ACLU filed a single justice petition on behalf of Bridgeman and others, asking that the single justice reserve and report the following question to the Court – “whether all cases involving misconduct by Annie Dookhan should be dismissed or subjected to a court imposed deadline.”  This is the second Bridgeman case (SJC-12157).  In short, the petitioners are once again seeking a global remedy.  (The petitioners also filed an emergency motion to stop the notice from issuing, but that motion was denied).

The single justice reserved and reported this matter to the full SJC with oral argument scheduled for November 8.  On September 16, the SJC requested amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases former Hinton Drug Lab Assistant Analyst Annie Dookhan signed the certificate of drug analysis as the analyst, who are collectively referred to as the “Dookhan defendants,” are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

BBA Amicus Brief

On October 24, the BBA filed an amicus brief in the case calling for a global solution placing the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.

The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.

We advocate that the burden in this case must rest with the Commonwealth to re-prosecute certain cases rather than on individual defendants to come forward because the widespread and systemic nature of Dookhan’s misconduct implicates public confidence in the government and justice system.  Furthermore, we express a number of concerns about the current proposition of sending notice to impacted defendants, requesting action by those wishing to challenge their adverse dispositions including:

  • The attenuated timeframe of the case makes the prospect of sending notice to individual defendants unreliable.
  • Even if they should receive adequate notice, it is likely many defendants would not understand their rights or what course of action they should take in challenging their adverse dispositions.
  • Defendants clearing the first two hurdles may still face significant hurdle in challenging their cases because the Committee for Public Counsel Services (CPCS) will struggle to provide attorneys for each of their cases (see CPCS/ACLU Bridgeman Brief, pp. 24-32).

While the Courts have worked admirably and diligently to handle these cases individually, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable – it is inconsistent with due process and undermines the integrity of the criminal justice system.

We look forward to watching oral argument on November 8 and a decision from the SJC in the following months.  We will keep you updated on the latest developments in this case and the work of our Amicus Committee.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Trios: Reflecting on the Legal Profession with Prof. David Wilkins at Annual Meeting

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We were thrilled to welcome Professor David Wilkins, Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School, to provide the keynote speech at Thursday’s Annual Meeting, one of the largest bench-bar events in Massachusetts.  Wilkins is well known for his research on the impact of globalization of the legal market, diversity in the profession and the various career paths of attorneys.  His speech was engaging, and at times funny, depressing, and hopeful.  He demonstrated a remarkable understanding of the trajectory of the legal profession and laid out a number of issues (often in threes) requiring the attention of attorneys, law firms, legal educators, and the public at large.

Where We’ve Been

Wilkins began with a look back at recent developments in the law.  Since 2008, the outlook has been less than optimistic, with scholars talking about “the death of Big Law” and “the end of lawyers.”  However, Wilkins encouraged attendees to expand their scope and think not just about attorneys in private practice but also the entire legal system, including underfunded and understaffed courts, state and federal agencies facing budget cuts, and legal services that are far from being able to meet the needs of their constituencies.  These shortcomings in legal jobs are accompanied by myriad systemic challenges, including mass incarceration, struggles with individual freedoms and rights, and questions about the political process.  In addition, law schools are facing lower enrollment and lower job placement rates.

So the question, Wilkins explained is, are these problems part of a paradigm shift or simply a temporary correction that will soon re-adjust?  And the answer he exclaimed with comic timing is, “Who knows?!”  It’s too early to tell for sure, but it seems likely that a lot of these changes are here to stay and may have been coming more gradually anyway, but were simply pushed into high gear by the recent financial crisis.

Where We Are

These changes are not unique to the legal profession, either.  In fact, they have proliferated in nearly all professions and daily life.  Wilkins described three major developments:

  1. Globalization of the economy and geographical shifts, with increasing focus on emerging markets in developing countries.
  2. A rise in the speed and sophistication of information technology.
  3. The blurring together of traditional knowledge, whereby things that used to be considered separate and distinct are now inextricably linked. He highlighted a few examples, such as public and private spheres, global and local impacts, and more relevantly, law and business.

The law is a lagging, not a leading indicator of change, which is unsurprising given its focus on history and precedent.  Unfortunately, that can also make it slow to recognize change, and even slower to react to it.

Trends

Wilkins identified three areas where the legal profession is currently undergoing changes.

  1. Practice is shifting from mostly solo and small firm practice to large law firms. At the same time, the size of public legal offices such as attorneys general is growing, as is the number of attorneys employed by the courts.  In short, the law is becoming an “institutionalized profession.”  However, the ethical rules and other aspects of practice are still geared towards the historic practice settings and styles.
  2. There is increasing diversity. Though diversity may still lag far behind where we’d like it to be, the legal profession is far more diverse now than it has ever been.  In particular, the number of women in the law and in law school has greatly increased, but legal practice and the typical career trajectory are still laid out best for men who have a homemaker wife.  Furthermore, global diversity continues to increase, as well as the need for interaction with non-lawyers.
  3. Competition is intense, not only amongst lawyers and firms, but also in the pipeline of smart students to become future lawyers. Wilkins discussed the need for retaining the core integrity of the profession in order to continue to attract talented people who want challenging and rewarding service careers, while also considering changes to modernize practice and compete with other fields attracting top students.  He highlighted two main points to consider:
    1. Law is a human capital profession, done by people for people, even if those people work for huge corporations, so lawyers need to think about how they recruit, train, develop, and relate to people.
    2. The need for lawyers today is greater than ever because of globalization and the increasing complexity of the world. However, this also requires lawyers to understand the intersection of law and other issues.

Where We’re Going

Wilkins closed with three issues for consideration going forward:

  1. Access to Justice – There are not enough lawyers to serve all of those in need, largely because the expense of training and developing lawyers prices many out of being able to afford legal services.  Therefore, we need to be open to new ways to more efficiently develop legal skills and provide legal services.  This includes increasing the use of technology, expanding the role for paraprofessionals, and investing in more resources for self-help.
  2. Access to the Legal Profession – We need to increase diversity and strive for true inclusion by shifting our perception that individuals need to change to fit within existing institutions to changing the institutions themselves and the assumptions at their core that inhibit maximization of talent.
  3. Access to the Rule of Law – Lawyers need to move beyond the law itself. They need to reach across boundaries, not only within the legal profession, but also beyond to legal education and non-lawyers.  Wilkins provided another trio – the three roles lawyers need to play:
    1. Astute technicians – Lawyers already do a good job of this – being competent in the law and understanding complex issues.
    2. Wise Counsel – This one is often more challenging, requiring lawyers to combine principles of law and morality.
    3. Leaders – This one also presents challenges, whereby lawyers have to go beyond being merely advisors but to also be the agents of change they want to see.

Wilkins ended with a plea for lawyers to work together.  The only way we can preserve the core principles of the legal profession and excellence in practice, while at the same time advancing to become more diverse and provide more service to broader constituencies is by coming together to effectuate systemic change.  We at the BBA hope to be at the forefront of this movement and hope lawyers will continue coming together at 16 Beacon to discuss and work on these essential issues and we thank Professor Wilkins for leading this discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Carol Starkey on 20 Years of Amicus

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Ever since my first meeting at 16 Beacon Street nearly 16 years ago, the Boston Bar Association has been an invaluable resource for me professionally.

As lawyers, we are all in pursuit of professional excellence.  But we also need support and intellectual nourishment outside of our firms or organizations in order to be, and remain, successful in this competitive industry.  And for me, those resources always have been found at the BBA.

In addition to the rich educational programming and the ability to develop a strong network, perhaps what is most exciting about the BBA as an organization is its capacity to bring some of the brightest, most powerful people in the legal industry together, regardless of where they practice or how they identify themselves, in order to help solve problems affecting all of us.

Over my nearly 3 decades of practice, I have experienced how much we can do – as lawyers – when we step outside our own individual practice silos and work together on common issues in the profession.  For me, nothing demonstrates this more clearly than the work of the BBA’s Amicus Committee.

If you’ve been following Issue Spot’s coverage of the Amicus Committee this month, you know that through this important group of volunteers, the BBA has weighed in on some of the most important – and sometimes controversial – issues of our time.

In 2002, we submitted a brief in support of marriage equality in Goodridge v. Department of Public Health, a landmark case which helped paved the way for equality across the nation.

In 2012 – and again in 2015 – the BBA filed a brief in Fisher v. the University of Texas, supporting diversity in higher education as a means of increasing diversity in the legal profession.

The Goodridge and Fisher cases demonstrate that when the BBA takes a position on an issue – like marriage equality or diversity in higher education  – it is not just words to be taken lightly, but a firm belief that is reflected in our core values.

In addition to the issues that attract a national spotlight, our Amicus Committee has allowed the BBA to argue successfully for some of the bedrock principles that affect the very core of what it means to practice law.

In keeping with our long-standing advocacy on behalf of access to justice, in 1990 we filed a brief regarding House Bill 5858 An Act Establishing the Economic Stability and Recovery Compact arguing that a tax on legal services would infringe upon each individual’s ability to, in the words of the Massachusetts Constitution, “obtain right and justice freely, and without being obliged to purchase it.”

And just last year, the BBA filed an amicus brief in Commonwealth v. Wade, a case in which we argued there had been a misinterpretation of a new post-conviction forensic testing law – a law that the BBA helped create – resulting in a forced waiver of attorney-client privilege.  The SJC agreed with our brief, clarifying how the law should be read and protecting the confidence of attorney-client communication.

Over the years, courts have, time and again, cited BBA amicus briefs, both during oral arguments and in their written decisions.

The dedication and talent of our Amicus volunteers have helped shape the BBA into an organization whose opinion matters. We are the ones the legal community turns to – and listens to – in matters of law.

That is why during today’s Annual Meeting, I gave the 2016 President’s Award to the more than 100 volunteer attorneys who have helped contribute to BBA amicus briefs throughout the years as Committee Chairs, members and brief writers.

It is through the talented and dedicated volunteers on our Amicus Committee that we’ve been able to do this work, the collective force of which not only stood up for individuals’ rights, but forever changed all of our lives by re-shaping the legal landscape in which we live.

Carol Starkey
President

BBA Amicus Brief History, Part II: Advancing Diversity and Inclusion, and Opposing the Death Penalty

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In advance of this year’s Annual Meeting Luncheon, where the BBA will be proudly honoring the 20-year history of our Amicus Committee, last week’s Issue Spot kicked off a two-week review of some of the great past work of our amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs. 

Here is Part II of that review, covering more of the briefs we filed on some of the most important legal issues of our time:

Diversity and Inclusion

The BBA is committed to advancing diversity and inclusion in the legal profession by honoring exceptional leadership in diversity strategies, offering public service opportunities for lawyers looking to introduce diverse young people into the legal field, and providing valuable mentoring and professional experience to help retain and develop a diverse population of lawyers in Boston.  Some of our diversity and inclusion initiatives include mentoring, the summer-jobs and summer-internship programs, Law Day in the Schools, and group mentoring.  (For more information about this important work, and to get involved, click here.)  But in addition, as with so many other issues, we have also used amicus briefs to address diversity and inclusion in key cases.

Diversity: Grutter v. Bollinger and Fisher v. University of Texas at Austin

The BBA has long supported race-conscious admissions policies in higher education as a means to provide a diverse pipeline, first to law school and then to the legal profession.  In 2003, we filed a brief in Grutter v. Bollinger, a landmark Supreme Court case on the University of Michigan’s admissions policy.  The brief was drafted by Thomas Dwyer (now at Dwyer LLC) and Jody Newman of Dwyer & Collora, LLP (now Collora LLP), and BBA President Joseph Kociubes served as Of Counsel.

The brief argued that the severe underrepresentation of diverse lawyers harms law firms’ economic and professional interests—and society as a whole, because lack of diversity in the legal profession erodes public confidence in the judicial system.  Furthermore, race-conscious admissions policies are vital to the shared mission of law firms to increase the racial and ethnic diversity of their lawyers.  The brief describes some of the work by firms and bar associations aimed at increasing diversity but explains why they alone cannot solve the problem.

The Supreme Court held 5-4 in line with our brief, finding that race-conscious admissions policies that may favor underrepresented minority groups, but that also consider other factors evaluated on an individual basis, were permissible and not an unconstitutional quota system.

Extending the pipeline back a step, we also filed amicus briefs in both iterations of Fisher v. University of Texas at Austin.  In August 2012, the BBA filed a brief in Fisher I, drafted by BBA Vice-President Jonathan M. Albano, a partner at Bingham McCutchen (now Morgan Lewis) and current member of our Amicus Committee, along with his colleagues Deana K. El Mallawany and Caleb Schillinger.  The brief was supported by seven diverse Massachusetts bar organizations:

  • Asian American Lawyers Association of Massachusetts,
  • Massachusetts Association of Hispanic Attorneys,
  • Massachusetts Black Lawyers Association,
  • Massachusetts Black Women Attorneys,
  • Massachusetts LGBTQ Bar Association,
  • South Asian Bar Association of Greater Boston, and the
  • Women’s Bar Association.

The brief argued that the University of Texas admissions policy should be held to a strict-scrutiny standard because state efforts to promote diversity in education serve compelling governmental interests that are vital to the legal profession’s goals of achieving racial and ethnic diversity.  Furthermore, the brief explained, underrepresentation of diverse lawyers harms the legal profession and society as a whole by eroding confidence in the justice system and limiting the breadth of skills and perspectives of practitioners.  To quote the brief directly,

Until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

In June 2013, the Supreme Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in late 2013, but the issue remained open to discussion and interpretation.

In July 2014, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan, and the case returned to the Supreme Court when the Court granted a petition for writ of certiorari in June 2015.  In November 2015, the BBA filed its second amicus brief, again supported by the affinity bars and drafted by Jon Albano, this time with the help of Sarah Paige.

Our brief in the second Fisher case was similar to the one we filed in Fisher I, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, and that diversity of lawyers enhances the legal profession and society as a whole.  It explained that this diversity in the legal profession can be achieved only through the cultivation  of a diverse pipeline of students from undergraduate institutions.

In June 2016, the Supreme Court released its decision, again ruling in line with our brief, by upholding the University of Texas race-conscious admissions policy with a finding that it did not violate the Equal Protection Clause.  We hope that our briefs helped sway the Supreme Court and that the upholding of these sorts of policies will have the intended effect of creating a more diverse pipeline of individuals into the legal profession.  And we will continue to stand by, and advocate for, the principles expressed in these amicus briefs.

Inclusion: Goodridge v. Dept. of Public Health, Commonwealth v. U.S. Dept. of Health and Human Services/Nancy Gill v. Office of Personnel Management, and United States v. Windsor/Hollingsworth v. Perry

One of the BBA’s most well-known amicus briefs was filed in Goodridge v. Dept. of Public Health, the landmark case on marriage equality in which Massachusetts became the first state in the country to find that same-sex couples had a right to marry.  Our brief, written by Peter Zupcofska, L. Tracee Whitley, Heidi Nadel, and Corin Swift, all of Bingham McCutchen LLP (now Morgan Lewis), is different from many of our other briefs in that it does not address the issues through their impact on the legal profession.  Instead, it simply argues that legal benefits, rights, and obligations of marriage should extend to same-sex couples, and that denial of them deprives same-sex couples of equal protection under both statutory and constitutional law.  The SJC famously held in line with these arguments in its historic decision issued on November 18, 2003, establishing a precedent that was later adopted piecemeal in thirty-seven states over the next decade.

Only two years later, the BBA was again advocating for inclusion, this time in Cote-Whitacre v. Department of Public Health, which challenged a 1913 law—said to have been targeted originally at interracial couples—denying marriage license to couples whose marriage would not be valid in their state of residence, under which many Massachusetts clerks were denying marriage licenses to same-sex residents of other states.  Our brief, again drafted by a team from Bingham McCutchen (Morgan Lewis) built on our advocacy in Goodridge to make the case that the statute at issue violated provisions of the Massachusetts and United States Constitutions.  The SJC disagreed in a March 2006 decision, upholding the law’s application to out-of-state same-sex couples.  However, two years later, the law was repealed, accomplishing our ultimate goal.

In 2011, and 2013, we took on the federal Defense of Marriage Act (DOMA), which defined “marriage” as a legal union between “one husband and wife,” and “spouse” as “a person of the opposite sex who is a husband or a wife.”  In 2011, we filed an amicus brief in companion cases Commonwealth of Massachusetts v. US Department of Health and Human Services, and Gill v. Office of Personnel Management, in the First Circuit Court of Appeals, opposing DOMA and arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief was drafted by the ACLU and a team from Wildman Palmer LLP (now Locke Lord), including Daryl Lapp and Robert Young.  The First District decision affirmed the trial court ruling that DOMA violated the Equal Protection Clause of the 14th Amendment but stayed enforcement of its decision in anticipation of U.S. Supreme Court review of the Act.

Just about a year later, the Supreme Court weighed in with favorable decisions in two cases on the same day.  In U.S. v. Windsor, SCOTUS declared Section 3 of DOMA unconstitutional as a deprivation of the equal-liberty rights granted under the 5th Amendment of the U.S. Constitution.  In Hollingsworth v. Perry, the Supreme Court ruled that proponents of so-called Proposition 8, California’s ballot initiative to bar same-sex marriage, did not have standing to intervene because they could not demonstrate that they were harmed by the lower court ruling that declared the measure an unconstitutional violation of equal-protection rights.  The BBA signed onto a single brief filed in both cases, with a coalition of bar associations, civil- and human-rights groups, and public-interest and legal-services organizations, arguing for heightened scrutiny based on sexual orientation classifications.  And of course, in 2015, in its Obergefell v. Hodges decision, the Supreme Court made same-sex marriage the law of the land, finding a constitutional right to marry under the 14th Amendment’s Due Process and Equal Protection Clauses.

Opposition to Capital Punishment

For more than 40 years, the BBA has opposed capital punishment, recognizing that the death penalty is simply too fraught with peril—too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system.  We recently reaffirmed this stance and extended it to the federal death penalty in our 2013 report, The BBA and the Death Penalty.

Over the decades, the BBA has used amicus briefs to explain this position to the courts:

  • 1975 – Commonwealth v. O’Neal – For those of you keeping score, the BBA has been involved with amicus briefs since long before the start of its Amicus Committee some 20 years ago. The advent of the Committee simply helped us bolster our ability to consider and take part in more and increasingly diverse cases.
    • Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The court overturned the state’s unconstitutional mandatory death-penalty provision.
  • 1984 – Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:
    • Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions.  It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.
    • The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence.  In addition, prosecutors and defense counsel alike face unique community pressures.
    • Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.
    • The SJC invalidated the constitutional amendment and statutes, in line with our brief, finding that they violated Article 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.
  • 2005 – U.S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).
    • The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury.  It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence.  Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty.  It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.
    • The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.

This two-part review has offered just a small sample of the BBA’s work on amicus briefs, but it demonstrates why we are choosing to honoring the 100+ individuals who have given their time and talents to our Amicus Committee and their work—the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.

The ceremony will take place on October 20th at the BBA Annual Meeting Luncheon—one of the largest annual bench-bar events in Massachusetts.  In addition, we will hear from keynote speaker Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School.  A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

We hope to see you there!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association