BBA Will Make its Voice Heard Re: Probation Reform

The Boston Bar Association (“BBA”) is often asked why we weigh in on some topics and not on others.  The short answer is we are interested in speaking up on issues that have an effect on the practice of law or the administration of justice.  In reality, it’s not that simple.  Getting to the point where we can voice our opinion or share our position involves a careful process.  Sometimes that process is anticipatory while other times it is reactive.

For example, last week’s blog post described one instance where the BBA was pre-emptive and got out front on an issue.  Our members identified an area, updating state consumer debt collection regulations, in which their expertise could be put to use.  Almost all of the recommendations our members made were adopted by the Attorney General’s Office and they are now in the process of promulgating the new regulations.

Next week, on March 30th, the BBA will testify before the Judiciary Committee at a public hearing on probation.  In this instance, the BBA’s involvement has consisted of a measured review and response to the legislation filed by Governor Patrick in January.  This legislation was filed in the wake of the patronage scandal in the Massachusetts Probation Department and the tragic murder of Woburn police officer John Maguire.  Following the death of Officer Maguire, there was a loud and justifiable clamor for immediate review and reform of the department.

The reason the BBA decided to step into the debate is that the proper management and governance of probation is vitally important to the administration of justice.  The final probation reform legislation is sure to have a significant impact on the practice of law and the administration of justice in Massachusetts.

Once the governor’s legislation was filed, BBA President Don Frederico appointed a Council-level study group consisting of a wide range of federal and state prosecutorial and public defense experience.  After weeks of review, which included meeting with experts in the field, thoughtful study and debate, the BBA Council endorsed the study group’s position articulating the guiding principles that the BBA believes any probation reform legislation should be based on.

The study group never set out to correct all of the problems identified in the Ware Report.  Instead, it recognized that there is no one way to solve these issues.  The Legislature needs the freedom to install a system that remedies the problems plaguing the department.

This recent crisis provides an opportunity to make critical changes to the Probation Department.  The BBA hopes that the study group’s principles will help shape criminal justice reform and lead to a more efficient department while improving public safety.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

We’re Making Progress in Debt Collection Reform

As a membership organization with nearly 10,000 members, issues of public policy and opportunities to comment and suggest reforms routinely present themselves to the Boston Bar Association (BBA).  The BBA Council has adopted policy positions on a wide variety of issues.  Once a position has been approved, many of our members wonder, “What now?”

The answer usually depends on timing – the timing of Council approval in relation to what the Legislature is focusing on at that particular moment.  The salience of an issue often dictates how much traction it will have in the Legislature and other governmental agencies.  Unfortunately, forecasting what will capture the attention of government officials is more of an art than a science.  So advancing BBA positions demands patience and perseverance.

Just one example. . .When word came to the BBA last Friday that the Attorney General was submitting proposed updates to its Debt Collection Regulations to provide stronger consumer protections, we were thrilled.  As noted in Issue Spot last August, the BBA’s Consumer Finance Committee wrote a report proposing updates to the current regulations to reflect the real world today.

Many of the proposed updates submitted by the BBA group are found in the proposal submitted by the Attorney General’s Office.  These changes will provide substantial relief for debtors that have been subjected to unfair collection practices not covered by the current regulations.

Before the regulations are updated, there is a comment period and a hearing scheduled on May 18th.  Members of the BBA Consumer Finance Committee will present testimony on the Attorney General’s proposal to express the BBA’s support for these important modernizations of debt collection practices.  The BBA is proud to work with the Attorney General’s Office and all other agencies where the expertise of our membership can be useful.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

8th PILP Class Continues Legacy

Sometimes it is easy to overlook the good being done by attorneys in our city.  Of course Boston’s legal history is full of examples of lawyers answering the call of public service, not the least of which was John Adams’ defense of the British soldiers following the Boston Massacre.  The legacy of pro bono representation and public service is evident all over Boston’s legal community from multinational firms to solo and small practices and from in-house counsel of large corporations to legal departments of governmental agencies.  In order to cultivate the talent of new attorneys who exemplify the characteristics of an active lawyer citizen, the Boston Bar Association began the Public Interest Leadership Program (“PILP”) in 2003.

On March 2, over 40 PILP alums gathered at the BBA for an Alumni Reception hosted by this year’s class.  Chief Judge Mark Wolf of the United States District Court and BBA Past President Mike Keating stopped by to speak to the group and catch up with alums who have gone on to do extraordinary things.  One example of the work that PILP participants have gone on to do is to organize pro bono support for the Medical-Legal Partnership at Boston Medical Center.  Judge Wolf recalled speaking with Samantha Morton and Leiha Macauley, two PILP alumnae, after they were honored at the 2009 John & Abigail Adams Benefit for their work with the Medical-Legal Partnership.  Both women remarked that they might not have continued to practice had they not been selected to join PILP because the program inspired them to use their skills for public service.

PILP began as an idea and was the brainchild of Judge Wolf.  In early 2002, Judge Wolf wrote a letter to then-BBA President Mike Keating suggesting the idea for establishing a group for new attorneys who are engaged in the community.  It would be a forum for discussing common interests and problems, education, social activity, and planning public service projects.  Now eight classes later, that group has grown into a network of nearly 100 distinguished lawyers.

The Alumni Reception was a successful event – with Judge Wolf and Mike Keating noting that PILP has grown beyond their original vision and encapsulates the best of the profession.  It is truly remarkable to see a group of committed newer attorneys who find the time to balance full case loads, pro bono representation, public service projects, and bar activities.  As Mike Keating said last night, it is work that is done in a program like PILP that makes being a lawyer worthwhile.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

LSC Fighting Off Federal Cuts

Legal services providers face another yet another blow – following last week’s announcement that the new House Appropriations Committee has proposed a $70 million cut to the Legal Services Corporation (“LSC”) for Fiscal Year 2011.  This immediate cut would be catastrophic to the delivery of legal services in Massachusetts because it would mean an 18% reduction in LSC’s annual funding.  (Because we are already half way through the current fiscal year, legal services providers tell us this actually translates to a 36% cut.)

There have already been serious reductions in other funding sources upon which LSC-funded programs also depend – especially Interest on Lawyers’ Trust Accounts (“IOLTA”). As we noted in a previous post, record low interest rates and reductions in the number of real estate transactions have resulted in dwindling IOLTA revenues.

What the House Appropriations Committee proposed last week is in contrast to what President Obama’s unveiled his budget this week.  For Fiscal Year 2012, President Obama actually proposed an increase of $30 million for LSC.

LSC provides grants to independent local programs and currently funds 137 local programs, serving every county and Congressional district in the nation. LSC distributes 97% of the funds it receives to these programs.  Massachusetts has four LSC-funded programs: the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy.

If this mid-year cut goes through, the entire legal aid delivery system in Massachusetts will suffer.  LSC has a big budget battle ahead of it. The BBA has already tried to do its part.

Today (February 17th), BBA President Don Frederico sent every member of the Massachusetts Congressional Delegation a letter urging no cuts in LSC funding. We will also join the American Bar Association in D.C. this April to lobby for funding for Fiscal Year 2012.  We urge Congress to adequately fund legal services to provide access to justice for poor people in the United States.

N.B. Some organizations in Massachusetts, such as Greater Boston Legal Services, do not receive LSC funding, and they still need our help.  That budget battle – to hold onto level funding – has just begun in the state Legislature.  Please be sure to join us next week at Walk to the Hill.  The event has been rescheduled for Tuesday, February 22nd at 11:00 AM in the Great Hall at the State House.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Debunking Legal Aid Myths

On Monday, the Boston Herald’s website ran an item from the Associated Press mentioning Supreme Judicial Court Chief Justice Ireland’s support for civil legal aid and his appearance at the Equal Justice Coalition’s annual Walk to the Hill.  The 4-sentence story generated a few reader comments demonstrating how little some people know about the important work of legal service lawyers in Massachusetts.

Sure, lawyers can be easy targets for people venting their frustrations, but sometimes that venting defies reason.  “If you (Chief Justice Ireland) and all your lawyer buddies who make mad money by charging crazy amounts/hour are so into helping the poor, then do it for free,” wrote Boston Dave.

Some lawyers certainly make good money working at private law firms. But really, BostonDave, those who dedicate each of their days to providing legal services to the poor barely enough to make ends meet.  Legal services organizations are hurting and the poor people that need legal services the most are hurting badly.

Another ill-informed Herald reader referenced the recent coverage of the MBTA putting cameras on buses and trains to stop people from filing frivolous law suits:  “I suppose that the MBTA can expect to see a gigantic rise in the filing of lawsuits, despite the presence of cameras in the buses,” wrote Jestme7284. “Now the people with the free lawyers will check to see if there is a camera before falling down.”

Just for the record, Jestme7284, legal service lawyers don’t do personal injury cases, which are handled by the private bar, typically on a contingency fee basis. Legal services lawyers represent clients in cases involving fundamental sustenance, such as housing, employment, access to government benefits, and domestic violence.

A word about the attorneys at big firms that show up at Walk to the Hill…Many of these lawyers give generously of their time, accepting pro bono assignments from organizations such as the Volunteer Lawyers Project. They also give generously of their money to charities providing legal aid for poor people.

At the Walk to the Hill event, they will take the time to meet with their legislators to talk about the importance of public funding for legal services.  Walk to the Hill is a symbolic showing of the legal profession’s solidarity in recognizing that everyone deserves access to justice – and not just those that can afford lawyers.

Unfortunately dumb jokes and ill-informed comments about lawyers are nothing new. But legal aid for the poor should be the one thing that all of us can agree is a good thing.  Alas this year the weather didn’t cooperate, and Walk to the Hill has been rescheduled for Tuesday, February 22nd.  We hope you’ll show up and demonstrate your support for legal services.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Briefs, Bills, and Budgets

Last Friday, January 21st, the Boston Bar Association filed an amicus brief in a case now pending before the Supreme Judicial Court, Fathers & Families, Inc. v. Chief Justice for Administration and Management. Our brief argues that the Massachusetts Child Support Guidelines are constitutional, and that Striking down the Guidelines would lead to uncertainty, instability, and inefficiency in awarding child support, and could jeopardize Federal Funding for the Commonwealth’s Public Welfare Programs. Amicus briefs are just one of the ways in which the BBA articulates its positions on matters of public policy.

Last Friday was also deadline for filing bills with the Massachusetts legislature.  After a little scrambling and some starts and stops, we proved successful in securing sponsors on both the House and Senate side of the Legislature for each of the BBA’s proposed pieces of legislation. .

All in all, almost 5,400 bills were filed for the new 2-year session. As legislators review the bills that have been filed, and determine their priorities for the new session, they are waiting for the Speaker of the House to announce his leadership team and committee assignments.   The Senate President has already announced her new team, renaming Senator Cynthia Creem as Senate Chair of the Judiciary Committee and promoting Senator Stephen Brewer to Chair of the Senate’s Ways & Means Committee.

Making our case for issues that are important to the private bar starts with filing our bills and with reaching out to the people in the legislative and the executive branches that can be our voice on these and other issues.  Traditionally, the governor’s Chief Legal Counsel is the person that provides legal guidance for the governor and serves as a trusted advisor on issues that affect the courts and legal services.  We met with Governor Patrick’s new Chief Legal Counsel Mark Reilly this week to discuss the BBA’s priorities for the legislative session and ways in which the BBA can work with his office on common interests.  This was a productive meeting and Mr. Reilly understands how important it is for him to be a voice for the courts and for the people who use the courts.  We look forward to having him join us at one of the next BBA Council meetings.

Also this week, Governor Patrick released his budget and unveiled his criminal justice reform package which includes a repeal of mandatory minimum sentences for non-violent drug offenses that do not involve guns or children.  The governor’s bill also allows non-violent drug offenders to become eligible for work release, to earn good conduct credits, and includes a provision to allow offenders to become parole eligible after serving ½ of their maximum sentence.

Other bills to repeal mandatory minimums have been filed by Senator Creem, Senator Steven Tolman and Representative Benjamin Swan.  The BBA supports reforming the mandatory minimum sentencing laws in Massachusetts and this issue will continue to be a priority for the BBA this session.

Amid the painful budget cuts, there was some good news in the governor’s budget.  The governor level funded legal services. While this is great news for legal aid in Massachusetts, we hope that as the House and Senate prepare their own budgets they will also recognize the importance of legal services.

As noted in this space last week, on Wednesday, February 2, the BBA is co-sponsoring the annual Walk to the hill for Civil Legal Aid at the State House. Chief Justice Roderick Ireland of the Supreme Judicial Court will join us.

Given the importance of public policy issues concerning access to justice and the administration of justice, we count on you for your support.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Why Walk to the Hill?

February 2nd will be the 12th annual Walk to the Hill for Civil Legal Aid.   Walk to the Hill is a powerful and symbolic statement from the Massachusetts legal community that demonstrates the profession’s dedication to the principle of “justice for all.”

But after 11 years it’s natural to ask if this event is even necessary.  Do legislators pay attention?  Has it gone stale?  Do we make a difference in the outcome for funding for legal services?

Your state legislators absolutely do pay attention.  How can they not when last year nearly 700 lawyers flooded the hallways and stopped by their offices?   In fact, Governor Patrick was paying attention too.  He made a cameo appearance and announced in front of the crowd that he had level-funded the Massachusetts Legal Assistance Corporation (MLAC) line item in his budget which was released earlier in the day.

Walk to the Hill has improved year after year making it easier for lawyers to participate.    Just as the Boston Bar Foundation’s John and Abigail Adams Benefit (January 29th) switched its format to a free-flowing event at the Museum of Fine Arts after decades of formal sit-down dinners, the Equal Justice Coalition’s Walk to the Hill has evolved as well.  Now there are projection screens and audio to stream the speeches outside of the Great Hall because of the overflow crowd.  Staff is on hand to help lawyers find their legislators’ offices.  Comment cards are available for participants to fill out and leave with the legislators or staff they visit.

Today, Walk to the Hill is more important than ever before. The need for civil legal aid has skyrocketed as the funding for it has plummeted.  The number of those eligible for legal aid grew by 91,000 between 2007 and 2009.  At the same time, since FY 2008 MLAC has been forced to cut grants to the legal aid programs it funds by 55% because of the precipitous decline in revenues from IOLTA accounts.

The symbolism of 700 attorneys congregating on Beacon Hill is profound, the speeches offered by the bar presidents are important, and the story shared by a client of legal services is heartfelt.  But at the end of the day legislators want to know what their constituents want.  They will look at phone logs and sign-in sheets to see who in their district participated.

So you need to do your part.  The event is not about meeting friends or having your picture taken with your firm; it’s about making the case for why legal aid is important and beneficial for Massachusetts.  All of the pageantry is wasted if participants do not take the time and stop by their legislators’ office.

Walk to the Hill asks the legal community to personally deliver one simple message: Funding for legal services is more important now than ever before. Make sure you visit your state representatives and senators to ask them to support level funding for legal aid.  This year (FY 2012), level funding is $9.5 million.  Even if legislators are not available to meet with you, it is critical to stop by and leave your name and contact information.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

More Relief for Consumers

More good news! An update increasing the dollar amounts for bankruptcy exemptions in Massachusetts made its way to the Governor Patrick’s desk just before New Years Eve. Even though January 5th marked the end of the 2009-2010 session, the governor still has 10 full days to act on the bills on his desk.  Any bill that goes without action for more than 10 days will receive a so-called pocket veto.  Today is day 7.

As Issue Spot noted just weeks ago, personal property exemptions have long been in desperate need of modernization.  According to the Massachusetts statute, MGL Chapter 235, section 34 —last updated more than 30 years ago — the intent of the original law was to balance the legal rights of creditors against a debtor’s need for basic necessities in order to maintain a home and earn a living.

The present law exempts from seizure things like 2 cows, 12 sheep, 2 swine and 4 tons of hay, and this is almost laughable in the context of how most people earn their livings or look for employment in 2011. Updating this law would increase the value of property, earnings and savings exempt from seizure during debt collection, and also permit debtors to keep computers. As families and communities continue to struggle with the impact of the economic downturn, the process of debt collection needs to change to one that is fair, at the same time facilitating the ability of debtors to fulfill their obligations.

The BBA had filed a bill several years ago that would update exemptions. Not surprisingly many bankruptcy attorneys eventually came to view the dollar amounts in that original bill as obsolete. During the summer of 2010 the BBA’s Bankruptcy Public Policy Committee identified key exemptions in our draft that could be revised to better reflect the needs of today’s household.  It was their work this summer which really brought this issue into focus for us and kept it on our radar in the final days of session.

The BBA’s Bankruptcy Public Policy Committee had urged us to work with the National Consumer Law Center, and to adopt the exemption amounts that were in the NCLC’s bill.  As we revised our own bill we learned that the NCLC’s bill had already made enormous progress.  Working with NCLC on this issue proved to be successful.

-Kathleen Joyce

Government Relations Director

Boston Bar Association