Third Access to Justice Commission Reconvenes  

This week, the Third Massachusetts Access to Justice Commission (Mass A2J Commission) hosts its first meeting of the new Commission year, looking to continue and expand efforts to ensure access to justice (A2J) for low-income residents of the Commonwealth.

A Brief History

In September 2004, the Massachusetts State Planning Board for Civil Legal Services recommended the formation of a Massachusetts Access to Justice Commission in order “to provide leadership, vision and coordination to the multitude of organizations and interests involved in assuring access to civil justice for the low-income families and individuals in the Commonwealth.” The Supreme Judicial Court (SJC) accepted this invitation and created the Mass A2J Commission by order on February 28, 2005.

The Court gave the First Commission a five-year mandate (2005 – 2010) to conducts its activities and appointed 21 members from judiciary, the private bar, law schools, and legal services and social services agencies. Former Chief Justice Herbert P. Wilkins served as chair and attorney James T. Van Buren served as co-chair. The First Commission had a number of key accomplishments, including production of a report analyzing the barriers to A2J in the Commonwealth, research on the roles that social service organizations and the executive branch play in providing and expanding access to justice to low-income individuals, and thorough study of the civil delivery system across the network of relevant stakeholders.

The Court appointed 23 members to the Second Commission and Chief Justice Ralph D. Gants and attorney David W. Rosenberg served as co-chairs of the Commission over its five year mandate from 2010 – 2015. The Second Commission continued the work of the First and also made a significant number of new accomplishments, including adoption of a $51 “Access to Justice Fee,” as a voluntary contribution to the Massachusetts IOLTA Committee with the annual attorney registration fee; a study of court service centers as a tool for unrepresented litigants and the launch of successful pilot centers in the Brooke Courthouse in Boston and in Greenfield; and development of the Legal Resource Finder, which allows litigants to learn whether they are eligible for legal services and how to seek help if so.

The Current Commission

The Third Commission, which will run until 2020, is composed of 30 members and was chaired by former Associate Justice Geraldine S. Hines and Susan M. Finegan until Justice Hines’ retirement this year. Chief Justice Ralph Gants will step in as co-chair for the remainder for the Commission’s term. This Commission adopted a mission statement centered on five priorities:

  • Increasing justice by improving the effectiveness of, and the funding for, civil legal services organizations;
  • Increasing services provided by private attorneys;
  • Improving assistance to unrepresented litigants;
  • Improving access to justice beyond the courts, such as in administrative agencies; and
  • Exploring the role of non-lawyers in the provision of appropriate civil legal assistance.

Only two-fifths into its mandate, the Commission has already had some significant victories, including receipt of one of seven Public Welfare Foundation/Justice for All grants to states for development of a strategic action plan for improving access to justice throughout the Commonwealth, expansion of the civil appeals pro bono program to cover the entire Commonwealth, and continued development of the Access to Justice Fellow program where 74 returned lawyers and judges have offered over 76,000 hours of pro bono in the past five years.

Read a more in-depth history of the prior Commissions’ work here and reports on past Commission activities here.

This past year alone the Commission accomplished a few of their priorities, including statewide expansion of the Housing Court, which we’ve also been calling for over the past three years. This means that one-third of the state will no longer be denied access to this critical resource, which offers judges that are experts in housing law and other benefits, like Housing Specialists, who mediate cases and save litigants time and money.

In addition, the Commission endorsed the report of the Access to Attorneys Committee, chaired by attorneys Joel Feldman and Mary Lu Bilek. The Committee met over 18 months to investigate and recommend ways in which the private bar could meet the legal needs of litigants who cannot retain an attorney. The Final Report recommended the Commission and the Commonwealth do a number of things, including:

  • “strongly support efforts to expand the right to counsel where the most essential needs of low income litigants are at stake,
  • further investigate apparent obstacles to the use of fee shifting to serve low income litigants by analyzing existing data decisions in the Housing and Probate Courts,
  • track usage of LAR in Mass Courts and provide consistent LAR information at Court Services Center, and
  • include LAR and fee shifting components as part of the Practicing with Professionalism seminar required of all law school graduates.”

Read the Access to Attorneys Committee’s Report here and the Third Mass A2J Commission 2017 Annual Report here.

The Year Ahead

As mentioned, the Mass A2J Commission first 2017 – 2018 Meeting takes place today, and the agenda if full of exciting developments that will shape the year ahead. First up, the Commission will welcome Chief Justice Gants as returning Co-Chair as well as a Laura Gal, who is the new consultant to the Commission.

The meeting, and coming year, will also focus on the current progress of the Justice for All Project mentioned above. The grant, awarded in November 2016 involves assessing the current resources available to assist those Massachusetts residents who cannot afford a lawyer for essential legal needs and producing a statewide plan to bridge those gaps in services. Over the spring of 2017, regional meetings were held across the state, and in June, a statewide conference was convened at Harvard to further develop creation of the strategic plan. Following these meetings, working groups divided by the issue areas of consumer debt, housing, family, and ecosystem were formed to develop the plan and produce potential pilot projects for the year ahead. We are looking forward to following and participating in the continued evolution of this project.

The Greater Boston Immigrant Defense Fund is also on the agenda for today’s meeting. As we reported last month, the Fund is a the product of private funding through foundations and law firms, facilitated through partnership between the City of Boston, the Massachusetts Legal Assistance Corporation (MLAC), and the Massachusetts Law Reform Institute. The Fund will work to protect and support Boston’s immigrant and refugee communities by increasing access to legal representation to indigent individuals in deportation proceedings in Immigration Court as well as community education and preparedness programing like know-your-rights trainings. Through the Boston Bar Foundation’s grant-making mechanism, we are acutely aware of the critical need and importance of providing legal representation in the area of immigration law.

With applications for funding now under review, we are looking forward to learning more about what the Commission plans to do to ensure the success of this important Fund and how members of the bar can be involved!

Another key item on today’s agenda is the recently-announced $8.3 million two-year Office for Victim Assistance (MOVA) grant obtained by MLAC to increase access to civil legal services for victims of violent and economic crimes in Massachusetts. Victims of crime are often left with significant civil legal needs related to things like child custody, health care, housing, and immigration. MLAC will, working in partnership with MLRI, disburse the funds to regional and statewide civil legal aid programs, and the Commission, which helped to spearhead this grant application will undoubtedly be working hard in the coming year to ensure the project runs smoothly and efficiently.

Yesterday’s statement announcing the Grant noted the BBA’s own Investing in Justice report, which highlighted the importance of investing in civil legal aid services and demonstrated the costs saved with such investments. In that statement, BBA President Mark Smith said:

“The BBA’s study demonstrated that providing civil legal aid to the vulnerable is not only the right thing to do but also provides the Commonwealth with a return on investment. This generous grant from MOVA will help expand access to justice for victims at a critical moment in their lives.”

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

New BBA Report Recommends Comprehensive Criminal Justice Reform

In July 2015, when the leaders of all three branches of government in Massachusetts invited the technical assistance of the Council of State Governments’ Justice Center (CSG) in conducting a comprehensive review of the Commonwealth’s criminal-justice system, it wasn’t just the report from CSG they were eyeing.  They were also looking ahead to the criminal-justice debate that the Legislature will take up over the coming weeks.

And as the CSG team, with the guidance of a working group composed of a few dozen stakeholders from Massachusetts, prepared its final report at the start of 2017, then-BBA President Carol Starkey, of Conn Kavanaugh, was also anticipating this debate. In response,  she appointed a BBA working group to not only review and analyze the CSG work product, but also consider further reforms that the BBA could recommend. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group spent the first half of the year studying which areas of reform would be most necessary and effective in producing a fairer and more effective criminal-justice system for the Commonwealth.

We’ve previewed this moment several times in recent months, but have now finally reached the point when the criminal-justice reform package that we’ve been waiting more than two years for is about to take shape and actual votes are being cast at the State House.  In just the past several days, two new bills have advanced one step closer to a floor debate (more on that below), and we are proud to let you know that the BBA’s working group on criminal justice has also released its report and recommendations, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.”

You can find the full report here.  And listen to Kathy Weinman discuss the report on WGBH’s All Things Considered here.

In brief, the report commends the CSG proposals, but calls for broader reforms to reduce recidivism and make Massachusetts’ criminal justice system fairer and more cost-efficient.  The recent research conducted by the CSG, and others, highlights this need for wider reforms , including to address the critical issue of racial disparities. In Massachusetts, racial disparities in incarceration are among the worst in the country: the disparity between Hispanic individuals and white individuals is the highest in the nation, and the disparity between black individuals and white individuals is thirteenth among the fifty states. As President Mark Smith states in the press release accompanying the report:

 We must ensure that the criminal justice system treats everyone equally and fairly. Even if we cannot identify the causes of these inequities with precision, we believe we know enough to take action to address its consequences, and the time has come to do that now.

The report calls for six additions to the previously proposed reforms:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

According to Martin Murphy, these reforms:

…point[] the way forward to a criminal justice system that is fairer and more effective – one that allows people to break free from the cycle of poverty and recidivism, leaving the Commonwealth stronger and safer.

The report also could not come at a better time, as the Legislature’s Judiciary Committee has just released both an omnibus bill (S. 2170) that tackles a wide array of reform ideas—from decriminalization of certain misdemeanors to restrictions on solitary confinement to creation of a parental testimonial privilege—and a much-narrower bill (H. 3935) that closely tracks the CSG recommendations.  Those recommendations, which focused on efforts to reduce recidivism, earned wide acclaim; but while there was near-universal agreement that more needed to be done, the CSG working group couldn’t reach consensus on what those further reforms should look like.

The legislative debate—first in each house, and then in a conference committee tasked with working out the differences—will settle the question, at least for this current two-year session, of what, if anything, will be done beyond the CSG bill.  That much is yet to be answered, as is the question of whether the Legislature will start by passing a CSG-only bill (like H. 3935), and then take up broader reforms, or whether they will try to take it all on in one go.

Regardless of which direction the debate goes, the BBA will be there to advocate for those reforms outlined in the Report. We look forward to keeping you updated on the state of criminal-justice reform in the Commonwealth!

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: ICE Conducts Raids in Massachusetts, Points to SJC decision

Last week, ICE conducted a four-day immigration enforcement action called Operation “Safe City,” which focused on 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, where the Supreme Judicial Court recently held, in Lunn v. Commonwealth, 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.

Read an overview of the oral arguments in that case here, and our statement on the decision here.

Initial reports indicate that some of these arrests may have occurred in and around courthouses. There are serious, nationwide concerns, that increased ICE presence and enforcement actions in courts may chill undocumented victims and defendants from exercising their rights and deter witnesses from appearing. Given the potential access to, and administration of, justice implications, this is an issue we’ve been following closely. We even had the chance to discuss with our Congressional Delegation during our advocacy at ABA Day in April, and it was also on the minds of the ABA House of Delegates at their Annual Meeting in August.  Be sure to watch this space for more updates!

BBA Annual Meeting Preview

Each fall, the Boston Bar hosts its Annual Meeting, one of the largest legal community gatherings of its kind. At the meeting, the BBA brings together members of the bar, their friends and colleagues, and leaders across a range of professional sectors for an afternoon focused on the law and the evolving landscape of the legal profession. The event will include remarks from President Mark Smith, the presentation of a Distinguished Legislator Award, and a special keynote speech from Piper Kerman (Orange Is the New Black). We hope you’ll join us there!

Distinguished Legislator Award

This year, the BBA will be conferring its Distinguished Legislator Award on Representative Kay Khan for her longstanding dedication to the youth and families of the Commonwealth, her leadership in juvenile justice reform, her stalwart support for persons with disabilities, and her commitment to ensuring inclusion and fairness of all residents of the state.

Representative Khan is the House Chair of the Joint Committee on Children, Families, and Persons with Disabilities as well as a founder and co-chair of the legislative Mental Health Caucus, the first of its kind in the country. She is also an observer on the Criminal Justice Commission, which explores ways to prevent crime by implementing data-driven, evidence-based public safety reforms that protect citizens in our cities and towns, reduce recidivism, and save taxpayer dollars. In addition, Representative Khan is the Co-Chair of the Task Force on Women in the Criminal Justice System, which could not be more relevant to the keynote speaker highlighted below!

Representative Khan has a long history of supporting causes near and dear to our mission here at the BBA. In 2003, we, alongside Greater Boston Legal Services, gave her the “Pillar of Justice Award,” for her role in saving legal aid services for low-income residents in the Commonwealth. Representative Khan has also filed and been an outspoken proponent on legislation that would ban the use of conversion therapy by licensed providers on minors in Massachusetts, which the BBA Council voted to endorse in 2015. As you may recall, the BBA has continued its advocacy on the bill filed by Representative Khan, H.1190, and an identical bill filed in the Senate, S.62 by Senator Mark Montigny this session. In June, we had the opportunity to present testimony in support of these bills before the Joint Committee on Children, Families, and Persons with Disabilities. You can read a full recap on our continued advocacy in support of the conversion therapy ban here.

Keynote Speaker

Of course, it wouldn’t be the BBA Annual Meeting without an exciting keynote speaker who always offers their own specific insights on major topics impacting the legal community. For example, last year 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, reflected on major developments sure to impact the profession, including globalization and the rise in the sophistication of information technology. The year before, we were fortunate to hear from Governor Charlie Baker, who addressed a range of topics, including civil legal aid funding, justice reinvestment, and the importance of pro bono work.

This year, we are thrilled to be joined by Piper Kerman, author of the memoir Orange is the New Black: My Year in a Women’s Prison, which was adapted by Jenji Kohan into an Emmy Award-winning original Netflix series. Kerman is also an outspoken advocate of criminal justice reform. She has testified before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on solitary confinement and women prisoners and before the U.S. Senate Governmental Affairs and Homeland Security Committee on the federal Bureau of Prisons. Kerman was, in addition, invited to speak at the Obama White House about the need to support and expand re-entry and employment programs nationwide as well as the unique conditions facing women in the criminal justice system. We are excited to hear her unique perspective on the challenges facing our nation’s criminal justice system.

The timing could not be any better as well, as the BBA Criminal Justice Working Group, chaired by BBA Treasurer Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Hogan Lovells, is nearing release of its own recommendations on criminal justice reform here in the Commonwealth. We hope this report will help shape and move the debate on criminal justice reform, which has been ramping up over the last few months, and which is sure to be a legislative priority in the State House in the coming months.


Be sure to watch this space for more updates as our advocacy around the working group’s report gets underway, and if you haven’t yet registered for the Annual Meeting, it’s not too late!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Update: Court Narrows Felony-Murder Rule

It’s been a while since we checked in with updates from the Massachusetts Supreme Judicial Court (SJC), so when a landmark decision came out this week, changing the rules for felony-murder for first time since the Civil War, we thought this warranted a closer look.

Just yesterday, the SJC announced its decision in Commonwealth vs. Timothy Brown, related to the scope of criminal liability under the common-law felony-murder rule, which “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.”

Justice Frank M. Gaziano, who drafted the decision, stated that “a unanimous court concludes that the felony-rule is constitutional” but that a “majority of Justices, through the concurrence of Chief Justice Gants … hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.” This means that felony-murder will no longer be an independent theory of liability for murder and will instead be “limited to its statutory role under G.L.c. 265, Section 1, as an aggravating element of murder, permitting a jury to find a defendant guilty of murder in the first degree where the murder was committed in the course of a felony punishable by life imprisonment even if it was not committed with deliberate premeditation or with extreme atrocity or cruelty.”

The Court addressed the issue in the case of defendant Timothy Brown, who was charged in relation to an attempted armed robbery and home invasion in Lowell, where two armed gunmen fatally shot brothers Hector and Tony Delgado in 2009. The Defendant was not present at the scene when the shooting occurred. The prosecutors in the case argued that Brown was liable as an accomplice to felony-murder, because he provided hooded sweatshirts to help conceal their identities and a pistol to one of the gunmen. Brown was convicted by a jury on two counts of felony-murder in the first degree arising from the predicate felonies of attempted commission of armed robbery, home invasion, and unlawful possession of a firearm and ammunition.

In an appeal filed this year, the defendant raised a number of claims, including that the Commonwealth introduced insufficient evidence to prove that he was a knowing participant in the felony-murders and that various errors by the judge and prosecution warranted reversal or a new trial. In addition, the appeal including arguments that the felony-murder rule should be abolished and that a new trial should be ordered under the Court’s extraordinary authority pursuant to G.L. c. 278, Section 33E, which states that the SJC shall review any first-degree murder conviction and “may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. ”

The Court first held that the Commonwealth did introduce sufficient evidence and that the defendant’s other challenges did not raise error warranting reversal or a new trial as to any of the underlying convictions.

In relation to the defendant’s argument that the felony-murder rule should be abolished, the Court unanimously rejected the argument that the felony-murder rule is arbitrary and unjust in because it is contrary to the fundamental notion that an individual is culpable for his or her own misconduct, in violation of Article 12 of the Massachusetts Declaration of Rights. The Court pointed to their consistent rejection of arguments in the past that the rule is unconstitutional, noting that there was no reason to deviate from their decisions to that effect in Commonwealth v. Watkins (1978) and Commonwealth v. Moran(1982).

The Court also found, after reviewing the record pursuant to their authority under G.L. c. 278, Section 33E, the verdicts of felony-murder were not contrary to joint venture felony-murder jurisprudence or against the weight of the evidence, so as to warrant a new trial.  However, the Court did hold that  “in the circumstances of this case…pursuant to our authority under G.L. c. 278, Section 33E, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree,” coming to this conclusion after finding that the defendant’s involvement was on the “remote outer fringes” of the joint venture.

This ruling has significant consequences for Timothy Brown, of course. He was previously sentenced to life in prison without the possibility of parole, based on the first degree murder charges. Now, however, since that sentence is vacated and the case is remanded back to the superior court for sentencing under the second-degree murder verdict, he will be eligible for parole after serving 15 years.

However, the decision, as a result of the concurrences, is also hugely significant for criminal law in the Commonwealth.  The Court declined to apply its ruling retrospectively, so it will have no effect on past convictions under the felony-murder rule.  But in the future, the Court provided that “the scope of felony-murder liability should be … narrowed, and … in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.”

Defense attorneys hailed this decision.  Those who handle murder cases have long been troubled by the possibility that an injustice can result from application of the felony-murder where a defendant never intended to use violence.  They note that the judge in such a case can always impose a harsher sentence for the underlying offense when death results, but a mandatory life sentence for felony-murder is often unwarranted.  The Massachusetts Association of Criminal Defense Lawyers (MACDL) released a statement citing an amicus brief it had filed in a pending case, Commonwealth v. Morin, which had advanced an argument for the abolition of felony-murder.

The Boston Herald quoted appellate attorney Joe Schneiderman saying, “It is a very established rule, and a general principle of criminal law, that we punish someone for having a guilty mind with a guilty act.  Felony murder is unusual because the guilty act shows a guilty mind. The SJC has successfully untangled that issue.”

According to the Boston Globe — which noted that Michigan, Hawaii, and Kentucky had similarly revised their felony-murder laws — Plymouth District Attorney Timothy J. Cruz released a statement saying, “As pointed out by Justice Gaziano, the decision unfairly diminishes the seriousness of violent felonies that result in the deaths of innocent victims.”  There may be major ramifications of this ruling for how homicides are prosecuted in the Commonwealth.

In addition, court-watchers took note of the split ruling — with Chief Justice Gants, and Justices Lenk, Hines, and Budd forming a narrow majority in favor of the new felony-murder rule — and wonder whether it portends a division in upcoming criminal cases.  Since the argument was held in this case, Justice Geraldine Hines has retired, replaced by former Appeals Court Chief Justice Scott Kafker.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

On Tuesday, September 5, U.S. Attorney General Jeff Sessions announced that President Trump is ending the Deferred Action for Childhood Arrivals program (“DACA”), with a gradual phase-out, and official end date of March 5, 2018.  DACA was established through an Executive Order in June 2012 by then-President Obama and provides qualifying undocumented immigrants with a renewable two-year period of deferred action and work authorization, allowing them to remain in the United States to study, work, or serve in the military.  Individuals were eligible for DACA relief if they satisfied a strict set of criteria, including:

  • Were under 31 years of age as of June 15, 2012;
  • Arrived in the U.S. while under the age of 16;
  • Continuously resided in the U.S. from June 15, 2007, to the present (though brief and innocent absences for humanitarian reasons do not count against this);
  • Entered the U.S. without inspection or fell out of lawful visa status before June 15, 2012;
  • Were physically present in the United States on June 15, 2012, and at the time of applying for DACA relief;
  • Were in school, had graduated from high school, had obtained a GED, or had been honorably discharged from the Coast Guard or armed forces;
  • Had never been convicted of a felony, a significant misdemeanor, or more than three misdemeanors; and
  • Were not a threat to national security or public safety.

Though the phase-out will occur gradually over the next six months, and Congress has been urged to pass a replacement in the meantime, this announcement instantly made the future of current beneficiaries unclear.  Given this resulting (and continued) confusion and the potentially devastating outcomes for an estimated 800,000 current and potential DACA beneficiaries, the BBA moved quickly to gather a panel of immigration law attorneys to discuss what members of the bar, potential clients who are directly affected, and the public need to know about the decision and what to expect in the coming months.

For full details, watch the program here.

We were fortunate enough to be joined by three experts in the field:  Iris Gomez, of the Massachusetts Law Reform Institute (MLRI), is a nationally-recognized expert on immigration and asylum law and has served as an immigration attorney at MLRI for 25 years and now directs the organization’s Immigrants Protection Project. Scott J. FitzGerald, of Fragomen, Del Rey, Bernsen & Loewy, LLP, has practiced in immigration and nationality law for over 20 years and has in-depth experience in the full gamut of U.S. immigration and nationality laws and policies. And George N. Lester, also of Fragomen,  has over 25 years of experience in advising diverse companies seeking to hire foreign professionals and representing them through all the steps necessary to achieve temporary or permanent immigration status.

The Phase-Out:

Iris Gomez kicked things off with an overview of the program itself and how the phase-out would impact various types of immigrants. The original program protected qualifying immigrants against deportation and granted them work authorizations for a two-year, renewable period. The program also included travel benefits, known as advance parole, which allowed participants to leave the country and return without being ejected at the border.

As the phase-out begins, different groups will be impacted in different ways, which Gomez helpfully explained:

  • Current beneficiaries of DACA whose documents expire within next six months: Those beneficiaries whose documents expire between September 5, 2017, and March 5, 2018, have until October 5 to renew their DACA authorization and work permits. Because of this tight timeframe, the need for legal assistance for this category of beneficiaries is exceedingly pressing. Greater Boston Legal Services is hosting Clinics on the next three Mondays in advance of this October 5 deadline.
  • DACA beneficiaries who have already applied for renewal and those applying for DACA for the first time: Those individuals who had applied for renewal, or for the first time, before September 5, 2017, will continue to be adjudicated under the pre-existing process. The two-year authorization period will begin upon the final adjudications, so many of these individuals may remain beneficiaries into 2020 or 2021.
  • Current beneficiaries with documents that will expire after March 5, 2018: These beneficiaries will retain their status in their documents until their individual expiration dates, so their work permits will remain valid through the date on their work authorizations.
  • Past DACA beneficiaries who let their DACA qualification expire and had not yet applied for renewal: These past-beneficiaries are now ineligible and can only benefit if there is a legislative solution or other remedy that covers them.
  • Similarly situated immigrants who, in theory, are eligible for DACA but never filed: These individuals are also left with few options as a result of the program’s end and are similarly reliant on a legislative solution or other remedy.
  • Advance Parole Applicants: The granting of advance parole on the basis of DACA was immediately terminated upon the September 5 announcement. However, those who had already received advance parole but not actually travelled will, in theory, be permitted to return if they do leave the country. There is some risk in this, though, because Customs and Border Patrol Officials exercise broad powers in turning people away at the border. As a result, this also represents a category of individuals for whom access to an immigration attorney is very pressing.

Options beyond DACA

Next up, George Lester discussed other immigration options for those who previously had relied on or expected to rely on DACA relief, including:

  • Green Card based on a Family Member: Those individuals that may be eligible based on, for example, marriage to a U.S. Citizen or an approved family benefit petition from another family relationship (child, parent, etc.)
  • Green Card based on Employment: Those individuals that may be eligible based on one of numerous work-based petitions.
  • Temporary Work Visa Status: Those individuals that may be eligible for one of numerous temporary employment-based options, including H1-B visas.
  • Section 245-I: Those individuals eligible to receive a waiver of unlawful presence, which often bars exercise of the above options.
  • Asylum and Temporary Protected Status (TPS): Those individuals that meet the requirements of asylum, including well-founded fear of persecution upon returning to their country of origin, or TPS, when conditions in a country temporarily prevent individuals from returning safely.
  • Special Immigrant Juvenile Status: Those individuals under 21 and meeting the other criteria of SIJS, including being a victim of abuse, abandonment, or neglect.

Options at the Legislative and Court Level:

Following the overview of other options, Scott FitzGerald discussed the prospect of a Congressional solution which would prevent the end of DACA. President Trump, himself, has urged Congress to find a solution for DACA for the so-called Dreamers who are covered by it.  However, given the political climate in Washington, not least surrounding the highly-charged issue of immigration, there is much uncertainty about the likelihood that such legislation can be passed.

This prospect is made more complicated by the fact that many in Congress will demand that any continuation of DACA  include more-restrictive immigration measures, such as funding for building a border wall, stricter verification of employment status-, and major changes to the family-based immigration programs.

In addition to these legislative efforts, a lawsuit has been filed in the Eastern District of New York by 15 states, including Massachusetts (through the office of Attorney General Maura Healey), and the District of Columbia, demanding injunctive relief to prevent the phase-out of DACA provisions.  The suit outlines a number of arguments, including that the Trump administration violated the due process rights of the young immigrants impacted by the phase-out by failing to safeguard the personal information they provided to the government in order to gain DACA relief.  The suit also argues that President Trump violated the equal protection clause by targeting immigrants from Mexico and that the President has demonstrated “racial animus” based on past statements and actions.

We were pleased to be able to host this important and timely event, and we hope it that it offered some measure of clarity in an area of on-going uncertainty.  We will continue to monitor developments and offer guidance in any way we can.

In the meantime, we are very happy to hear about the partnership between the City of Boston, the Massachusetts Legal Assistance Corporation, and MLRI to create the Greater Boston Immigrant Defense Fund. The initiative will help provide much-needed legal assistance to immigrants facing removal proceedings.

In a statement on the announcement, BBA President Mark Smith expressed gratitude “to Mayor Walsh and the Fund partners for this ambitious effort to increase access to justice for some of the most vulnerable members of society,” noting also that, given the Boston Bar Foundation’s grant-making to several legal-services providers who represent immigration clients, “we are acutely aware of the need for legal representation in this area, and we stand ready to assist and support attorneys and organizations who commit their time and talent to this important cause.”

Be sure to stay tuned for more updates on this initiative and future Immigration-Related events here at the BBA, like the upcoming “Immigration Law as it Relates to Representing Health Care Providers” lunch program that will be held on September 26.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Welcome to the 2017 – 2018 Program Year!

It’s a lively time here at the BBA, and the building is abuzz with activity as Section Steering Committee meetings and brown bag and CLE programs are once again in full swing. With the new year underway, we wanted to take a moment to offer a refresher about our public policy opportunities and procedures.

Our Public Policy Procedures offer a great resource for learning about BBA policy processes and highlight our key focus areas. We evaluate opportunities to engage in public policy through the lens of our mission, which is to:

  • Increase access to justice,
  • Provide for the fair and efficient administration of justice, and
  • Enhance the quality of the law

The procedures also highlight the myriad of ways in which policy related to these areas manifests at the BBA, including:

  • Providing comments on proposed changes to court rules
  • Drafting, endorsing, or providing feedback on legislation
  • Filing and joining amicus briefs

Section Comments

One of the more common policy opportunities here at the BBA involves the solicitation of Steering Committee comments on proposed amendments to court rules. As part of this process, we send an email to the Section Co-Chairs, notifying them of an opportunity to comment, and if the proposed amendments do relate to their practice area, the Co-Chairs forward them along to the full Steering Committee for more in-depth review and potentially a discussion at their next meeting. When a Steering Committee has an invitation to comment on their agenda, I, or Mike Avitzur, the Director of Government Relations, will attend, take notes, answer any questions, and assist in the development of comments should the Steering Committee have them. Then, the comments are reviewed by BBA leadership and submitted by the BBA on behalf of the relevant Steering Committee(s).

We love facilitating the opportunity for Sections to weigh in from their particular, expert perspectives on important changes that may impact their practice area. This also provides the courts with an opportunity to hear directly from practitioners that will be affected by the proposed amendments. And the courts have a history of carefully considering the submissions and even adjusting the final versions of the rules as a result of the concerns and feedback raised in the Section comments.

For more reading on the Comment process and the impact of these submissions, be sure to check out:

BBA Government Relations Year in Review: Comments on Proposed Rules Changes

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

Comment Round up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

Sometimes, however, the request for input will come not from the courts, but internally from the BBA. Here in the Government Relations Department, we often reach out to the Sections for their expert opinions and analysis on a range of other internal and external policy requests, including requests for the BBA to endorse legislation, requests for the BBA to file or join an amicus brief, and requests for the BBA to respond to various current event and policy developments locally and nationally. In these instances, we rely on Sections to weigh in from the perspective of their particular practice area as a way to ensure that we thoroughly understand the issue and any impacts it may have.

Public Policy Request

Beyond responding to requests for comment coming directly from the Government Relations Department, we also work with Sections, acting through their co-chairs, to prepare their own policy proposal requests by filling out and submitting this summary sheet. These proposals can seek a number of things from the BBA, including creating and drafting new legislation, supporting or opposing existing legislation (with or without further comments), providing comments on regulations, rules or standing orders, or something else entirely.

As you can see, these requests can be used to take much more nuanced positions than simply support or opposition to an existing piece of legislation. For example, just this year, the Trusts and Estates Section submitted a proposal seeking BBA endorsement of Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Access Act (RUFADAA). The BBA Council voted to endorse RUFADDA, even though, interestingly enough, none of the bills currently filed at the State House actually included the full RUFADAA language. Armed with BBA Council approval, BBA Trusts and Estates Section Co-Chair Joe Bierwirth, alongside members of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates, and Fiduciary Administration, testified before the Judiciary Committee on bills related to fiduciary assets, urging the committee to adopt full RUFADDA language instead of the bills currently filed.

Amicus Brief Request

While we already noted that Sections are sometimes asked to provide comments on amicus brief requests, members are also encouraged to submit their own requests if they believe the litigation at issue fits the specific criteria. According to the Amicus Brief Policy, the BBA will, “as a general rule…only file or join an amicus brief related to the practice of law or the administration of justice,” though, “possible exceptions will be considered on a case-by-case basis.”

The drafting or joining of a brief, however, takes a significant amount of time and resources, so we urge Sections to begin this process as early as possible. For requests that require the BBA to draft a brief, three months is typically required to obtain the appropriate approvals from BBA leadership and prepare the brief for filing. If, however, the request asks the BBA to join a brief being prepared by another party, only two months is required, with the draft brief being submitted to the BBA for review one month prior to the filing deadline.

Our Amicus Committee has a long history of submitting briefs on some of the most significant and timely matters facing the profession and the general public, including the Dookhan Drug Lab Scandal, Access to DNA Testing, and Diversity in the Legal Profession.

Read more about this important work:

BBA President Carol Starkey on 20 Years of the Amicus Committee

Amicus Committee History Part I

Amicus Committee History Part II

This year, we are excited to work with you on the full range of policy opportunities here at the BBA. Looking ahead, you can be sure that we will continue advocating for funding for civil legal aid, the Trial Court, and the Committee for Public Counsel Services, as well as our long-held criminal justice reform priorities, including opposition to the death penalty and repeal of mandatory minimums. The following months should prove especially exciting on the criminal justice reform front as our recently appointed Working Group is gearing up for release of its recommendations on improvements to current and proposed criminal justice reform policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

ABA Annual Meeting Recap

While much of our policy focus remains concentrated on the City of Boston and the Commonwealth of Massachusetts, from time to time, whether it be our annual advocacy at ABA Day or BBA Council endorsement of an ABA Resolution, we turn our attention to the American Bar Association (ABA).

Founded in 1878, the ABA has over 400,000 members, making it one of the largest voluntary professional organizations in the world. The ABA House of Delegates (The House) is the policy-making body of the Association, and it meets twice a year to consider and adopt new policy resolutions on a range of issues related to the law and the legal profession. Once adopted, the Resolutions become official policy and the ABA is able to advocate for the measures contained within the resolution. The House is made up 601 delegates from state, local, and other bar associations and legal groups from across the country, and we are proud to be represented by two former BBA Presidents, Lisa Arrowood of Arrowood LLP and Mary Ryan, of Nutter, McClennen, & Fish LLP.

At the ABA Annual Meeting in New York earlier this month, the House considered a range of timely resolutions, and many of those that passed relate to issues we’ve also been taking a close look at here at the BBA.

ABA Resolution 115

First and foremost, we are happy to report that the House passed ABA Resolution 115, which, as you’ll recall, the BBA Council voted to endorse last month.  The Resolution contains three key parts: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Mary Ryan reported that in the days leading up to the vote on this resolution, proponents fanned out through many of the meetings of delegates and Section councils to educate the delegates about the resolution. This advocacy, along with the carefully crafted accompanying report, resulted in resounding support for the resolution.

Be sure to check out our prior Issue Spot blog for the full details on BBA endorsement of this important resolution!

Resolution 10C

Another interesting immigration-related resolution passed by the House involves an issue we’ve been tracking here in the Commonwealth: the presence of Immigration and Customs Enforcement (ICE) Officers in courthouses. Resolution 10C calls on Congress to amend Section 287 of the Immigration and Nationality Act to codify the Department of Homeland Security guidelines regarding immigration enforcement actions to include courthouses as “sensitive locations.” Currently, ICE limits enforcement at other locations deemed “sensitive,” including schools, health care facilities, places of worship, religious or civil ceremonies or observances, and public demonstrations.

By including courthouses in this category, immigration enforcement action would only be taken on a showing of exigent circumstances and with prior approval of a designated supervisory official. Exigent circumstances include those actions involving a national security matter, an imminent risk of death, violence or harm to person or property, an immediate arrest or pursuit of a dangerous felon or one that presents an imminent danger to public safety, or an imminent risk of destruction of evidence material to an ongoing criminal case.

Those calling for limits on ICE action at courthouses point to the potential interference with access to justice and the administration of justice. The Report accompanying Resolution 10C succinctly summarizes these issues, noting that immigration enforcement actions at courthouses:

…chill undocumented victims and defendants from seeking justice in court and deter witnesses from responding to legal process, frightened by the knowledge that they run the risk of being detained and deported should they participate in our system of justice, comply with lawful process requiring their participation, or dare enter an American courthouse.

In addition, the Report outlined the recent escalation of immigration enforcement actions, relying partly on information from Massachusetts.  For example, in 2017,  the Massachusetts Committee for Public Counsel Services Immigration Impact Unit received reports of close to 40 people who had been arrested by ICE agents while either inside courthouses, on the courthouse steps, or getting out of their cars to enter courthouses. Across the country, from Maine to Arizona, courthouse arrests have been documented against asylum seekers, agricultural workers, victims of domestic violence, and recipients of Deferred Action for Childhood Arrivals.

The passage of this resolution is especially timely given the recent Massachusetts Supreme Judicial Court decision in Lunn v. Commonwealth, which held that detention of an individual who would otherwise be released based on an “ICE detainer” is tantamount to arrest and not authorized under state law, and the debates following that ruling. As usual, we will continue tracking these issues, both locally and nationally, and keeping a close eye on all developments that may impact access to justice for Massachusetts residents.

Criminal Justice Resolutions

As you know, we’ve also been closely following Beacon Hill developments on criminal justice reform, including the recent release of the highly anticipated legislation based on recommendations from the Council of State Governments’ Justice Center Report, along with at least 150 other bills on matters related to sentencing, mandatory minimums, and CORI Reform to name a few. Many of the same and similar issues were also up for debate and approved in Resolutions passed at the Annual Meeting, including:

  • Resolution 106:
    • In this Resolution, the ABA urges Congress to increase the powers of the U.S. Department of Justice (DOJ) to ensure compliance with the Supreme Court decision in Gideon v. Wainwright, which, under the Sixth Amendment, guaranteed the right to counsel in most criminal cases. Specifically, the resolution calls for Congress to 1) enable the DOJ “to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel,” and 2) “enact legislation recognizing the right of private litigants…to obtain equitable relief in federal court for systemic violations of this right.”
  • Resolution 10B:
    • By passing Resolution 10B, the House reaffirmed its opposition to mandatory minimums, an opposition that has also long been a position of the BBA. The accompanying report outlined the ABA’s history of opposition to mandatory minimums and the reasoning for their opposition, including the detrimental limits on a judge’s flexibility to consider all relevant circumstances and the resulting disparate impacts on communities of color.
  • Expungement Resolutions:
    • The House also passed two expungement related policies, Resolution 112F and 112G. The former urges all levels of government “to enact laws allowing individuals to petition to expunge all criminal justice records pertaining to charges or arrests that did not result in a conviction.” The latter urges all levels of government to pass laws “allowing for the expungement of: (a) convictions, or (b) other statutory ordinances or violations where a court enters a finding of guilty, for actions performed in public spaces that are associated with homelessness.”
  • Resolution 112C:
    • This cash-bail related resolution urges federal, state, and local governments to adopt policies that favor release on recognizance and disallows the imposition of a financial condition of release that results in the pretrial detention of a defendant based solely on that defendant’s ability to pay. In addition, the Resolution calls for adoption of policies that “make bail and release determinations based upon individualized, evidence-based assessments that use objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, disability, sexual orientation or gender identification.”

Looking ahead, the BBA’s own Criminal Justice Reform Working Group, headed by BBA Secretary Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Collora LLP, is wrapping up its own exploration of criminal justice reform recommendations for the Commonwealth. We look forward to outlining those for you in the near future and keeping you posted on the continuing State House developments!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

As we’ve often noted, the opportunity to comment on proposed amendments to various rules allows BBA members to leverage their particular expertise and offer specific, constructive feedback on items that influence their own practice of law. In addition, the courts have long shown an interest in taking a close look at these submissions by the Sections and often the concerns expressed in the comments are reflected in the final iterations of the rules.

The Business and Commercial Litigation Section has consistently been one of our most prolific contributors of comments on rule changes and the past few months have been no different. The hard-working “Comments Subcommittee,” made up of Paula BaggerDaniel Tighe, Brendan St. Amant, and John Bauer, with active oversight from the Section’s Co-Chairs, Brenda Sharton and Debra Squires-Lee, took the lead in producing the Section’s thorough and thoughtful comments over the last year.

Below, we highlight four comment submissions, beginning with the two most recent sets of comments submitted by the Section:

Proposed Amendments to the Massachusetts Rules of Appellate Procedure

Just this week, the BBA Executive Committee approved submission of comments on the proposed amendments to the Massachusetts Rules of Appellate Procedure.

The proposed amendments were drafted by the Appellate Rules Subcommittee, appointed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure. The Subcommittee was tasked with identifying proposals that would clarify the meaning and formatting of the rules, assist in the development of paperless processes, and encourage the just and speedy resolution of appeals.

Given the lengthy and technical nature of the amendments, representatives from interested sections were tasked with undertaking the review and drafting of the comments on behalf of their sections, with comments then redistributed for final review by the full Steering Committee. Paula Bagger and Daniel Tighe volunteered to tackle the lengthy proposed amendments and draft the comments on behalf of the Business and Commercial Litigation Section Steering Committee while Bethany Stevens did the same for the Criminal Law Section Steering Committee. Upon finalization, Paula Bagger and Bethany Stevens joined the Executive Committee to report on their comments.

Both the Business and Commercial Litigation Section and the Criminal Law Section expressed great appreciation for the great amount of work undertaken by the Standing Advisory Committee and the Appellate Rules Subcommittee to produce the amendments, and the BBA echoed this appreciation in the cover letter accompanying the comments. Overall, the Business and Commercial Litigation Section and the Criminal Law Section “were in agreement that the proposed amendments offered substantial improvements, especially by addressing technological advancements and changes to practice that have made the current rules obsolete and clarifying aspects of rules that were confusing and added difficulty for those who do not frequently appear before the Appeals Court or Supreme Judicial Court.” Both Sections then offered their own more technical suggestions for ways the proposed amendments could be tweaked to make them even clearer.

Proposed Amendments to the Supreme Judicial Court Rule 1:11

In June, the BBA submitted comments on behalf of the Section in relation to proposed amendments to Supreme Judicial Court (SJC) Rule 1:11, Relative to the Disposal of Old Court Papers and Records.

The SJC Rules Committee solicited comments on the proposed amendments, which were drafted upon consideration by an SJC-appointed committee, on “whether changes were warranted regarding the scope of case records required to be retained permanently and whether any records might be retained electronically.” The proposed amendments offer a number of changes, including increased allowances for the use of electronic storage and the disposal of certain files, simplified notice requirements, and expansion of the rule to include the SJC and Appeals Court in addition to the Trial Court.

The comments drafted by the Steering Committee outlined a few of the strengths as well as a few of the ambiguities in the proposed amendments. For example, members praised the permissive nature of the rules, noting it was important that clerks are allowed discretion to retain those records they think important, even if they would be permitted to dispose of them. However, the comments also outlined those sections that could use some clarifying, including the lack of requirements related to “sampling” and the ambiguity in whether certain records that must be retained permanently must also be stored electronically.

Brendan St. Amant presented the Section comments before the BBA Executive Committee and Council, and following Brendan’s presentation, the BBA was struck by the potential significance of these rule changes. As a result, in the accompanying cover letter, President Carol Starkey stressed the need to balance the creation of an efficient mechanism for storing and disposing of records while also maintaining a great deal of deference to the historical significance of many legal documents, including recent documents, whose future historical value may not yet be fully evident.

We’ll be sure to keep you posted once the final approval of the amendments to SJC Rule 1:11 and Massachusetts Rules of Appellate Procedure are announced.

In addition to these submissions, two final rules previously commented on by the Section were recently announced:

Board of Bar Overseers Rule 3.18 and Related Rules

Late last year, the Board of Bar Overseers (BBO) sought comment on proposed amendments to Rule 3.18 and related provisions of sections 2.8(b)(1), 2.13, 3.16, 3.17, 3.22(d), 3.32, and 4.9(a)(1) and (2). The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board Members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will be reserved exclusively for Board Members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

In February, the BBA submitted comments on these proposed changes on behalf of the Business and Commercial Litigation Section and the Ethics Committee. The comments expressed unanimous support for these “welcome and necessary” amendments. The Section felt that certain motions, like those on protective orders and discovery, “are too important as a matter of due process to be left to the hearing committee members who may only hear one or two matters in their entire tenure.”

Last month, the SJC approved these amendments, which will be effective September 1, 2017.

Massachusetts Rules of Civil Procedure 26(b)(5)(A)

The same day we submitted comments on the proposed changes to BBO Rules, we also submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure. The proposed amendments would conform the Massachusetts rules on privilege logs to the federal rule, which, unlike the current Massachusetts rule, does not require a document-by-document log of privileged information, though parties are still required to describe the nature of the material withheld in enough detail for the other party to assess the merits of the withholding.

The Business and Commercial Litigation Section comments expressed a variety of views by members of the Section, including those that favored the proposed new rule and those who believed the present rule was more suitable to Massachusetts-specific courts and cases. For example, some members felt the new rule would address shortcomings in the current rule that made the process too time-consuming, expensive, and could be unfair for those parties with many more privileged documents, while others felt the current rule, though burdensome, offered greater and necessary safeguards for parties seeking the information. In addition, some members noted some discomfort with the rule’s lack of specific language providing for a judge’s ability to order production of a privilege log in certain circumstances. Though a judge could take that step without specific language in the rule, placing such authority in the rule itself would render a ruling of that type less extraordinary.

The SJC also recently announced the final amendments, effective September 1, 2017, to this rule. The final approved amendments remain largely the same as the proposed amendments, with the addition of one sentence, that reads “[t]he court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege.” This addition helpfully offers the clarity sought by those members who thought the rule could benefit by the specific inclusion of the court’s ability to order the production of more information when appropriate.

The presentation on the Section’s comments both the BBO Rules and the Massachusetts Rules of Civil Procedure to the BBA Executive Committee and Council in February was made by Paula Bagger (and, ICYMI, she will be, alongside Stephen Riden, the co-chair of the Business and Commercial Litigation Section Steering Committee in 2017 – 2018).

With the new program year only a few weeks away, we are excited to see all the future comments coming from the Business and Commercial Litigation Section and all the other sections at the BBA!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Endorses Two Access to Justice-Focused Policy Items

Last week, the BBA Council voted to endorse two proposals firmly rooted in the “facilitate access to justice” piece of the Association’s mission. One relates to the provision of counsel for immigrants in federal removal proceedings and the other relates to what a full switch to electronic reports of decisions by the Massachusetts SJC and Appeals Court would mean for access to justice in the Commonwealth.

ABA Resolution 115

First up on the Council agenda was a proposal seeking BBA support for the proposed American Bar Association (ABA) Resolution 115. In June, the BBA received a request to support the resolution and accompanying report in advance of the August ABA Annual Meeting, where the House of Delegates will vote on a number of resolutions, including this one.

In brief, the draft resolution contains three components: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this,  the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.

Backers see the resolution as a “logical next step” in its incremental approach to endorsing the appointment of government-funded counsel for indigent individuals in adversarial civil proceedings “where basic human needs are at stake” and argue that support for the provision of counsel to all indigent individuals in removal proceedings “will not only help to ensure due process and fairness, but also has the potential to make the process more efficient.” They view the resolution as “especially timely” in light of the new federal enforcement priorities on immigration and increased recognition of the need for government-funded counsel in such cases across the country.

Similarly, the BBA itself had previously endorsed a number of very relevant proposals, including:

  • In August 2008, the BBA Council approved Gideon’s New Trumpet, a report drafted by the Task Force on Expanding the Civil Right to Counsel. The Task Force concluded “that representation should be provided in cases where individuals have the most at stake in terms of their liberty and their right to assert defenses to removal.” Specifically, the report identified three categories of individuals who fit these criteria: 1) those who have been detained, 2) those facing deportation as a result of a criminal offense, and 3) those seeking asylum.”
  • In February 2017, the BBA Council voted to endorse ABA Resolution 301 and its accompanying report. This resolution expressed ABA support for “the preservation and development of laws, regulations, policies, and procedures that protect or increase due process and other safeguards for immigrant and asylum-seeking children.” The resolution also specifically urged Congress and the Administration to take a number of actions, such as maintaining the current statutory definition of “unaccompanied alien child,” ensuring children are held in custody for the shortest period possible, and increasing the annual number of Special Immigrant Juvenile visas allotted, among other things. Lastly, the ABA urged governments at all levels to “expand efforts to provide legal information and legal representation for unaccompanied immigrant and asylum-seeking children in removal proceedings.”

Overall, Resolution 115 is closely related to the above BBA positions, but does go a bit beyond both by expanding support for the provision of publicly-funded counsel to all immigrants in removal proceedings before the Immigration Court and the Board of Immigration Appeals, and not just in the more discrete categories mentioned in Gideon’s New Trumpet and ABA Resolution 301.

Upon distribution to relevant BBA Sections, members of the Delivery of Legal Services Steering Committee expressed support for BBA endorsement, and both the Civil Rights and Civil Liberties Section Steering Committee and Immigration Law Section Steering Committee voted to support BBA endorsement of the proposal. A statement made by the Civil Rights and Civil Liberties Section described the government-funded provision of counsel to indigent persons in removal proceedings as “a practical, legal, and moral imperative.”

The Council was fortunate to have former BBA President Mary Ryan, of Nutter, McClennen, & Fish LLP, present the proposed resolution. Ryan also serves, alongside Lisa Arrowood, as one of two BBA delegates in the ABA House of Delegates, and as co-chair of the ABA’s Working Group on Unaccompanied Immigrants, a co-sponsor of the proposed resolution. Ryan began by noting that she felt endorsement of the resolution was the “right and fair thing to do, as equal protection and the right to due process under the law applies to all people in the United States.” Her thorough and thoughtful presentation articulated the variety of ways the proposed resolution had a strong foundation in both ABA and BBA policy, highlighting specifically the work of the Task Force on Expanding the Civil Right to Counsel, which produced the above-mentioned Gideon’s New Trumpet Report, and which she also co-chaired.

After posing a few questions to Ryan, the Council voted to endorse ABA Resolution 115, and we are very pleased to be included in the list of supporters that will be read to the House of Delegates during consideration of the proposed resolution in August.

Proposed Change from Print to Electronic Reports

Next on the agenda were comments drafted by the Civil Rights and Civil Liberties Section in response to the Supreme Judicial Court’s recent invitation to comment on a proposed change from print reports to electronic reports. The invitation explains that the Justices of the Supreme Judicial Court (SJC) and the Court’s Reporter of Decisions are considering whether reports of both the SJC and the Appeals Court should be published only in electronic, and no longer in print, form–perhaps as soon as July 2019. Specifically, the invitation to comment sought information related to access to justice and the “anticipated impact of such a change on populations who may have limited access to the internet or little experience using the internet.”

The Civil Rights and Civil Liberties Section Steering Committee took this charge to heart, drafting detailed and eloquent comments on this anticipated impact. The comments, composed principally by Joshua Daniels, with the support from the Section’s comments subcommittee, noted the Section’s support for broad public access to the decisions of the Massachusetts courts but also a concern that discontinuation of the printed version “may have unintended adverse consequences for many people who rely on the print edition as their primary or even sole means of obtaining Massachusetts appellate decisions.” Specifically, the comments highlighted the consequences such a change may have on already especially vulnerable populations, including low-income, homeless, elderly, and incarcerated individuals.

Relying on case law and statute, the comments explore the Commonwealth’s existing commitment to ensuring that the public have access to those sources of law, like decisions and statutes, that are binding upon them. In light of this, the Section relies on local information and data to highlight those whose access may suffer as a result of the change, first noting that around 14% of Massachusetts residents either lack access to, or do not use, the internet. While Court Service Centers, Trial Court Law Libraries and potential partnerships between the courts and the public library system do a great deal to expand public access to judicial decisions, certain limitations persist. For example, resource constraints limit the number of public-library computers available and the amount of time allowed on computers printing is very rarely free and can cost as much as $0.15 a page, and access to public libraries often requires a form of ID and address verification that many homeless individuals do not possess. In addition, the nearly 10,000 individuals currently incarcerated in Massachusetts lack access to these services and, as a matter of policy, the internet.

The Section comments concluded with a statement “encourag[ing] the SJC and the Reporter’s Office to work closely with the Legislature, the Department of Correction, and individuals and organizations representing those who might be adversely affected by the Proposal, so that these concerns are addressed.”

Upon an initial presentation the week before by Joshua Daniels and Section Co-Chair Kate Cook of Sugarman Rogers, Barshak & Cohen, P.C., the Executive Committee was struck by both the quality of the comments and the firmly-rooted “access to justice” angle and requested Cook and Daniels return to present the comments to the full BBA Council for potential full BBA endorsement, rather than by the Section alone. Once again, Cook and Daniels eloquently explained the potential implications of the shift outlined in their comments. The Council agreed that, given the BBA’s mission to “facilitate access to justice,” and the strength of the comments, they could and should be endorsed by the Association as a whole. Last week, we mailed the comments with a cover letter explaining this endorsement, and we hope it will assist the Justices and Court’s Reporter of Decisions as they consider the proposed change.

We want to send a special thanks to Mary Ryan, Kate Cook, Joshua Daniels and the Civil Rights and Civil Liberties Section for making the above policy proposals possible! Be sure to watch this space for more updates on the House of Delegates vote on ABA Resolution 115 and the proposed change to electronic reports.

Housing Court Set to Expand to Statewide Jurisdiction

Finally, a quick update on an issue we’ve discussed here several times before: We are happy to report that the Legislature and Governor Charlie Baker have agreed, through the state-budget process, on statutory language and funding to allow the Housing Court to expand to full statewide jurisdiction. No longer will nearly one-third of the state’s population be denied access to the Housing Court—along with its expertise in housing matters, its specialized programs to help prevent homelessness, and its unique efficiencies—merely because of the town they live in.

This would not have become a reality absent the tireless work of Annette Duke and the Massachusetts Law Reform Institute, who assembled a coalition in support of expansion that the BBA was proud to be a part of. In keeping with the theme of this post, this change is a big victory for access to justice, which is why the BBA has been advocating for it for years.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association