‘Tis the Season to Focus on Civil Legal Aid

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Aside from being the “most wonderful time of the year,” it’s also time to start ramping up our efforts surrounding civil legal aid!  As you may know, the BBA has long played an integral role in raising awareness and advocating for increases in the state budget appropriation to fund lawyers that provide essential representation to people who would not otherwise be able to afford their services.  These lawyers work on issues such as evictions or foreclosures, veterans or other federal benefits, or needing protection from domestic violence.  As part of that push, we have been talking and listening to some of the leaders of this movement and wanted to report on a couple of presentations we observed this week.

On Tuesday, we were excited to be joined at our Council meeting by Equal Justice Coalition (EJC) Chair, WilmerHale Partner Louis Tompros.  Louis is in his first year as Chair of the Coalition, which consists of the BBA, Massachusetts Bar Association (MBA), and Massachusetts Legal Assistance Corporation (MLAC).  The group advocates for MLAC funding, which in turn provides the bulk of the state’s civil legal aid through a dozen organizations including most notably in our area, Greater Boston Legal Services.

Louis Tompros Speaking to BBA Council

Tompros is a partner at WilmerHale, focusing on intellectual property litigation, but he has also represented numerous clients on a pro bono basis, including local nonprofit organizations, public housing tenants facing eviction, and employees in unemployment claims and appeals. For the past few years, Tompros has led the EJC’s efforts to engage the private bar, and particularly young attorneys, in the campaign to increase funding for civil legal aid.  In August of this year, he became Chair of the EJC, succeeding the esteemed John Carroll of Meehan, Boyle, Black, & Bodganow, who had served as Chair for three extremely fruitful years.

Shortly after Tompros assumed the Chair position, the EJC also appointed a new Director, Laura Booth, replacing Deb Silva, who has taken her considerable talents to the Massachusetts Appleseed Center for Law and Justice.  We were sad to see Deb go after she led the EJC to new heights, but are excited to welcome Laura who is already hard at work implementing some new ideas, including expanding the network of people involved in legal aid advocacy, such as in-house legal departments and social services providers.

We are excited for this year’s civil legal aid funding campaign, kicking off very soon.  Things are already gearing up, as Tompros explained to our Council.  MLAC will be seeking a $5 million increase in the state appropriation this year, from $18 to $23 million, building on the $3 million increase the Legislature and Governor have provided over the past two years, even in very difficult fiscal times.  EJC leaders have already begun meetings with key Legislators and Executive branch officials to make the case.

As explained in this year’s fact sheet, the needs are still massive (around 1 million people qualify for civil legal aid by receiving incomes at or below 125% of the federal poverty level, meaning about $30,000 for a family of four), the turn-away rates are still too high (roughly 64%, due to under-funding), and civil legal aid remains a smart investment for the state (it returns $2 to $5 for every $1 invested).  In FY16, MLAC-funded programs closed over 23,000 cases, assisting 88,000 low-income individuals across the state.  And this is only part of the picture as they gave more limited advice, information, and trainings to countless others.  More funding will enable them to take on more cases, represent more people, shrink the justice gap, and return more money to the state.  It will also ease a massive burden on the courts which are bogged down by pro se litigants as illustrated in this video from Housing Court.

We hope you will join our President, Louis Tompros, and hundreds of your colleagues at Walk to the Hill on January 26, the legal aid funding advocacy kick-off event at the State House.  There will be more information to come, but the event usually runs from roughly 12:00-1:00 in the Great Hall and features speeches from the Presidents of the BBA and MBA, SJC Chief Justice Ralph Gants, and a legal services client as well as special guests such as the Attorney General and other state leaders.  Following the speeches, grab a boxed lunch and then go visit your legislators to tell them how much legal aid means to you and make the case for increased funding.  Don’t know your elected representatives?  That’s perfectly fine – look them up here and make the introduction.  They’ll be glad to hear from you.


Andrew Cohn Speaking on Legal Aid

Relatedly, on Wednesday, we were happy to hear from retired WilmerHale partner Andrew Cohn, President and CEO of Longwood Medical Energy Collaborative, on his forthcoming article for the spring issue of the University of Florida Law School’s Journal of Law & Public Policy: Reducing the Civil “Justice Gap” by Enhancing the Delivery of Pro Bono Legal Assistance to Indigent Pro Se Litigants–A “Field” Assessment and Recommendations.  It will discuss the four major aspects to reducing the justice gap – increasing legal services funding, expanding the participation of private attorneys in pro bono work, reducing justice system barriers for pro se litigants, harnessing emerging technology to help facilitate those initiatives.

On his final point, Cohn talked at length about a new initiative we’ve discussed here before – MassLegalAnswers Online – an internet-based virtual help-line.  The site was born out of an online program that started in Tennessee at OnlineTNJustice.org and is quickly spreading to other states.  The sites have been a huge hit both for clients and lawyers, spawning the catch-phrases “pro bono from home” and “pro bono in your pajamas.”  The American Bar Association (ABA) has recognized their effectiveness and is working to spread the site nationally.  Over forty states are currently committed to participating, a number of others are discussing the issue, and a handful have already launched their sites.  The ABA is helping states to adopt similar versions of the Tennessee website, though each state has some options to make tweaks in order to satisfy local ethics rules and to maximize its effectiveness for their populations.  The ABA is also providing malpractice insurance for all lawyers who answer questions through the database.

The site requires both lawyers and litigants to register, with clients submitting income information to prove they qualify, at less than 250% of the federal policy level.  Litigants who meet these qualifications are able to post questions, forming a client question queue which registered lawyers can peruse for cases of interest.  They can also search questions based on urgency and practice area, as well as subscribe to certain practice areas of interest to be alerted of new questions they may be interested in answering.  Once a lawyer selects a question, it is removed from the general pool and enters the lawyer’s private queue for their answer in 72 hours.  The questions will be monitored by a site coordinator who will also perform quality control checks of answers provided.

This site has essentially replaced the old “hotline” model and is a great improvement.  It removes long phone wait times and provides for clearer communication from both the client and lawyers as questions and answers have to be written out.  The site is also more convenient as the questions can be asked and answered at any time of day as can follow-ups.  The volume is not limited by the number of people manning phone lines and it is easier to pre-screen users.  Finally, the site offers a great opportunity for private bar involvement by lawyers who may want to perform pro bono work but who are not comfortable with taking on the uncertain time commitment inherent in traditional full representation scenarios.

At this point, masslao.org has been operational for about one month and has already provided answers to around fifty questions.  We encourage our readers to check it out and sign-up!

We’ll keep you updated with all the latest news on our efforts to increase civil legal aid, through both funding and expanding pro bono opportunities, and we hope to see you at Walk to the Hill on January 26.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Tweet Us!

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Just a brief announcement – the BBA Government Relations Department is now on Twitter – follow both BBA Government Relations Director Mike Avitzur (@MikeAvitzurBBA) and me, BBA Legislation and Public Policy Manager Jonny Schreiber (@JonnyS_BBA), for live-time updates on issues of interest and all the important policy work of the Boston Bar Association!

Discussing the Death Penalty

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As you likely know, the BBA has long opposed the death penalty, for more than 40 years to be exact.  Our reasoning is based on sound and practical principles – that the death penalty 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 with our 2013 report, The BBA and the Death Penalty and now we are proud to announce the release of the BBA’s first ever podcast, which takes the discussion of this position to the next level. With conviced murderer Gary Lee Sampson currently facing the death penalty at the Moakley Courthouse, the Co-Chairs of the BBA’s Death Penalty Working Group that produced that report, Martin Murphy (Foley Hoag) and retired Superior Court Judge Margaret Hinkle (now at JAMS), discuss their experiences with the death penalty and on the Working Group, and BBA President Carol Starkey shares her thoughts.

We have advocated against the death penalty through public education, such as in the aforementioned report and our 2015 press release urging the Department of Justice to seek a life sentence without parole instead of the death penalty for Boston marathon bomber Dzhokhar Tsarnaev.  We have made the same point when the Legislature has considered reinstating the death penalty and in amicus briefs including:

  • 1975 –Commonwealth v. O’Neal – 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 rejected 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 –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.

Despite a general trend away from capital punishment recently, in the last few days, the death penalty has again made headlines.  Georgia executed its U.S. leading ninth inmate of the year.  The Georgia case described in the article suffers from some of the hallmarks we’ve highlighted in our opposition.  For example, the crime took place in March 1990, but the defendant was not sentenced to death until his second trial eleven years later.  Even more concerning, the case raises major due process issues:

[Defendant William Sallie’s] lawyers argued that he should, once again, be granted a new trial because a woman who ultimately ended up on the jury during the second trial lied during jury selection and failed to disclose her own history of domestic violence, messy divorces and child custody fights — traumatic events that they said were “bizarrely similar” to Sallie’s case.

But no court ever properly considered the alleged juror bias, his lawyers argued in a recent legal challenge, because the issue wasn’t discovered until more than a decade later, and courts had ruled that Sallie’s petitions raising that evidence were procedurally barred because he missed a filing deadline by eight days at a time when he didn’t have a lawyer.

The defense team also made those arguments in a clemency petition to the Georgia Board of Pardons and Paroles, urging it to act as a “fail safe” against a miscarriage of justice. But the board, the only authority in Georgia with power to commute a death sentence, declined to spare Sallie’s life after a clemency hearing Monday.

Earlier in the week, Florida appealed the state Supreme Court’s interpretation of a US Supreme Court decision finding unconstitutional the state’s system of allowing judges, instead of juries, to find the facts needed for a death sentence.  The US Supreme Court held that this gave judges too much power, violating the Sixth Amendment right to trial by jury.  From the Miami Herald:

At the time of the January [US Supreme Court] ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”

Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

The Florida Supreme Court then found the new law unconstitutional, because it did not require unanimity in imposing the death penalty (something Judge Hinkle experienced firsthand in a Florida death penalty case and discusses in the podcast).  The state’s attorney general is appealing the ruling to the US Supreme Court for discretionary review.

As always, we’ll be on the lookout for latest developments in capital punishment and continue our advocacy in opposition.  We hope you enjoy the podcast and we’ll keep you posted on the forthcoming second episode which will cover our role in a major state scandal…

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Bar Exam: Results, Reform, and BBA Resources

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With applications for the bar exam due on December 9 and the recent kickoff of our Bar Exam Coaching program, we’ve got the bar exam on our minds.  This coincides with a presentation by Board of Bar Examiners (BBE) Executive Director Marilyn Wellington to the BBA Council in November, shortly after the release of passage rates for the July 2016 exam.

While bar passage rates have dropped nationally for the last few years, Wellington believes that they are starting to level out.  Much of the drop was due to a 30-40 percent decrease in applications to law school, resulting in many schools expanding their applicant pools to previously unseen levels in order to keep class sizes steady.  Over the last few years, most schools have corrected for the application drop by decreasing their class sizes, leading Wellington to predict a corresponding correction in passage rates.

Graduates of our local law schools represent roughly 60% of Massachusetts bar exam takers.  Wellington described increasing efforts at these and other schools to prepare students for the bar exam.  Some provide bar preparatory courses for credit and/or tuition payment plans for third-party bar preparation courses.

In July, the overall Massachusetts bar exam passage rate was just under 71%.  For first time takers it was just under 80%, which is pretty strong, though still seven to eight percentage points lower than the passage rates of a decade ago.  The state continues to be slightly ahead of the national mean on the multiple choice portion of the exam.  However, the number of bar takers continues to decrease, and in July was at its lowest number since 1983.  Wellington explained that this is likely due to the impact of the Uniform Bar Exam (UBE).

Massachusetts recently became the 26th state to adopt the UBE, though it will not be implemented in the state until July 2018.  The UBE tests only generally accepted legal principles and includes no local law.  It is still a two-day exam, consisting of a one-day multiple choice portion and a one-day essay portion.  The essay portion differs slightly from the current Massachusetts structure of 10 essay questions.  Instead, there are 6 essay questions for half the day and the Multistate Practice Test (MPT) for the other half, consisting of two 90-minute questions where test takers are given a case file containing all the needed information and asked to produce a type of legal document, such as a memo to a partner or a legislator.  The goal of the MPT is to:

test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills are applied.

In addition to the UBE, each state adopting it still retains control over any local components they want to add as well as what UBE score they require for passage.  These details are still being worked out in Massachusetts, but Wellington explained that they are working on developing a free online course on local law issues rather than an additional local test like some other states require.  However, the main benefit of the UBE is how much flexibility it gives takers who can apply their score in any UBE state, giving them the ability to be more mobile and potentially consider more employment options.

This is the type of background information we have equipped our bar exam coaches with, as well as specifics of the exam and what students can expect.  While students are expected to prepare for the academic portion of the exam on their own, coaches are there to provide support from the legal community – mental, emotional, and practical preparation – and guidance on:

  • Time management
  • Effective study techniques
  • Stress management
  • Dealing with anxiety

Our Coaching Program was started in large part due to the efforts of Marilyn Wellington, SJC Justice Margot Botsford, and Probate and Family Court Chief Justice Angela Ordoñez.  It is managed at the BBA by our Member Engagement Manager Kristen Scioli White and Public Service Programs Coordinator Cassandra Shavney.  I am proud to be helping out with the program, both as a coach and in running a program this week on exam essay writing – The Anatomy of a Bar Exam Essay: Advice for Improving Your Score.  I won’t bore you here with the details, but it was well attended and the students and coaches present had a lot of great questions about the essay exam process and substance, that I did my best to answer based on my experiences and observations both taking the bar and tutoring students.  If you want more information about the coaching program please reach out to Cassandra (cshavney@bostonbar.org).

Thanks to Marilyn Wellington and the great work of the Board of Bar Examiners, and best of luck to all the applicants taking the bar in February 2017 and beyond.  We look forward to reporting on your success this spring!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

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.

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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