It’s That Time of Year Again

As people race to finish holiday shopping, there’s a growing curiosity about which bills in the legislature will actually make it all the way to the governor’s desk during the session’s final weeks.  With one eye on our current bills and where they are during the informal sessions, we’ve also begun taking a hard look at our legislative priorities for the next session.

This process started months ago and probably won’t be completed until January.  The BBA has been reviewing our portfolio of bills that we’ve filed in the past and determining whether or not the issues are still timely and important. For those that make the cut, we must take a careful look to ensure that the language in the bill still reflects the reforms we sought.

The BBA’s issues are varied and far reaching; including everything from complicated tax issues to criminal justice reforms to family law matters and consumer protection, so the input and expertise of our member volunteers is crucial.  The goal is to present complete, up-to-date, and meaningful legislation that will have real world, positive impacts on the citizens of the Commonwealth and practitioners of the law.

Some bills are time sensitive and require immediate action.  Other bills get filed each session until we are able to focus enough of the legislature’s attention on them at just the right time.  For example, legislation updating the Homestead exemption and creating the Massachusetts Uniform Probate Code took many years to become law.

An example going forward is our bill that would update the dollar amounts in Massachusetts for bankruptcy exemptions.  In 2004, amid concerns that the new federal bankruptcy law would make it harder for people to seek bankruptcy relief, and that under Massachusetts’ obsolete exemption statute, debtors are vulnerable to losing the very tools that allow them to earn a living, the BBA began to work on updating the state exemption statute.  Tying the dollar amounts in the statute to cost of living adjustments was just the beginning.  Our proposal also recognizes the need for things like computers, sophisticated and specialized power tools, and automobiles as items necessary for earning a living today.   It is critical to update the exemptions to ensure they are relevant to the real world in which we live.

Generally speaking, the exemptions remain unchanged until someone summons the energy to introduce and pass a bill increasing them – and in Massachusetts this hasn’t been done in over 30 years.  While there is no mechanism by which these exemptions are regularly reviewed and other reforms are needed as well, updating the personal exemption statute will be an important step in helping a very vulnerable population.

When legislation is filed, many of the volunteers that work on it have visions of attending a grand signing ceremony in a large community hall.  They imagine getting commemorative pens from the governor, along with cameras flashing from a full press corps.  But what usually happens is that bills fortunate enough to make it to the governor’s desk are rarely ever afforded any media coverage.  Instead most become law quietly without much notice.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Homestead: From the Council to the Governor’s Desk

The BBA watched this week as one of its long-standing legislative priorities, homestead reform, was enacted by the Senate.   An Act Relative to the Estate of Homestead is now on the governor’s desk awaiting his signature.  This is good news to the many BBA members who have worked year after year and session after session to see the much needed changes in this area.  This is also good news to the attorneys whose clients have come to them in dire straits, overwhelmed with debt and seeking help to obtain a fresh start.  These reforms are substantial and will provide important consumer protections to homeowners in Massachusetts.  In addition to the consumer protection aspects, the bill will address many of the issues that have caused great difficulty to the courts in interpreting the current homestead statute.

In 2000, a detailed study of the Massachusetts homestead statute appeared in the Boston Bar Journal.  Author Mark W. McCarthy noted that homestead was so badly in need of change that only a complete rewrite would suffice. McCarthy even described the current homestead statute as, “ugly, clumsy, even embarrassing – and it just doesn’t work.”  That same year the BBA filed a homestead bill that was sponsored by then-Senator Robert S. Creedon, Jr. who was also chair of the Joint Committee on the Judiciary.  The BBA’s bill at that time focused on certain aspects of the homestead law including an automatic provision, certain stacking concerns for the elderly or disabled and creditor issues with respect to a homestead.

Despite our hard work, real progress was not made for years.  While the BBA pushed for its own version of homestead reform, other groups, most notably the Real Estate Bar Association (REBA), were also proposing their version of homestead reform.  It was Senator Creedon who asked the BBA and the REBA to work together on a single bill that would incorporate the reforms that both organizations sought.  The BBA’s dialogue with REBA on homestead yielded good input on ways to improve the bill and led to a multi-year drafting process that resulted in a revised and balanced bill that was filed jointly in the legislature.   Now, an even more improved version of the compromise bill that the BBA and REBA worked on sits on Governor Patrick’s desk.

Here’s what the current homestead bill will do:

  • Clear up ambiguities and make rules for filing a homestead declaration more logical
  • Protect beneficiaries of trusts
  • A refinancing mortgage will not be able to terminate previously filed homesteads
  • Protect proceeds from insurance or a home sale
  • Protect spouses and co-owners who transfer property amongst themselves
  • Provide protection for manufactured homes

Our work continued as we rallied our members to testify at public hearings, meet with legislators, and contact their local Reps and Senators, and we got pretty close to the finish line at the end of the last legislative session in December 2008.  While we weren’t able to claim victory before the legislature recessed, we did refile the bill to build upon the momentum of the last session.

Homestead reform will provide concrete and meaningful assistance to citizens in Massachusetts especially low income consumers and the elderly.  Now with homestead poised to pass some ten years after our efforts began, maybe we can get somewhere on updating the personal property exemption laws.

– Kathleen Joyce

Government Relations Director

Boston Bar Association

Musical Chairs on Beacon Hill

Now that the election cycle has passed, the BBA is looking forward to working with a comparatively large new class of legislators – nearly 50 new Reps and Senators – and a Governor’s Office that has just announced some staff changes as well.  Governor Patrick announced that he asked his staff to submit their resignations and reapply for their jobs and there has been some movement among top officials.

In particular, the Governor’s Chief Legal Counsel William “Mo” Cowan has just been named as Governor Patrick’s new Chief of Staff.  Mo has been Chief Legal Counsel since last October.  Mo has been an active member of the BBA and the private bar by serving on the BBA Council, as a BBF Trustee, and was an integral in the formation of the BBA’s Diversity and Inclusion Section.  In the past year he has been a good advocate for the courts and legal services and has always made himself available to the BBA.

The Chief Legal Counsel is responsible for advising the Governor on all legal and policy issues, judicial selection, and legislation.  With Mo’s departure from the Office of the Legal Counsel, Deputy Legal Counsel Mark Reilly will assume the position of Chief Legal Counsel.  Mr. Reilly has been working on the Governor’s legal staff since 2007 after practicing with Foley Hoag LLP and Sally & Fitch.

– Click here to read the Governor’s press release on the changes to his Cabinet –

The BBA will continue to work with the Governor’s office and Mark Reilly in his new role on critical issues for the private bar, the courts, as well as on the BBA’s priorities for the new legislative year.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

In the Tradition of Our Founder

In August Governor Deval Patrick declared October 2010 to be Pro Bono Month, a proclamation that the BBA wholeheartedly endorsed.  The BBA has a long history of promoting pro bono participation in the tradition of the organization’s founder, John Adams.  Now more than ever, pro bono representation is critical to ensuring equal access to justice in the Commonwealth.  Today there is an overwhelming demand for legal representation as a record number of individuals are forced to appear in court pro se because they cannot afford a lawyer and the demand for legal services far outstrips supply.  We continue to hear from our members about how this affects not just access to justice but the administration of justice.  Here are some of the things we have learned in the last year:

  • Pro se litigants require more assistance from court staff to understand and navigate the judicial process.
  • On one day in the Housing Court last fall, 203 cases were on the docket: in those cases, 189 tenants appeared pro se, as did 43 landlords.
  • The courts are trying to keep pace with the demand with diminished resources and fewer and fewer staff.
  • Delayed hearings and rulings can have direct negative impacts on individuals seeking relief from the judiciary on issues ranging from eviction to domestic abuse.

Our 2009-10 Public Interest Leaders recognized this growing problem and decided to focus their efforts on finding a creative way to address it.  They sought to meet the needs of both indigent litigants and lawyers who wish to help, but may not have the time to devote to long-term projects.  The group surveyed created a resource guide that focused solely on opportunities that would require 10 hours or less to complete.

On September 22, 2010, they held Take a Bite: Snack-Size Pro Bono Opportunities That Fit Your Practice here at the BBA.  Over 15 organizations with more than 20 opportunities for pro bono work that require 10 or fewer hours participated.  The event served as a great prelude to Pro Bono Month.  October at the BBA has been buzzing with training programs and events that celebrate and promote the importance of pro bono representation.  This has served as a great jumping off point for the BBA to continue its pro bono projects throughout the year.

For ways that you can get involved, check out the BBA’s calendar and our Public Service Program page.  There is still time left to attend one of our events and to make a lasting impact on the lives of those in need.

Boston Bar Association

Government Relations Department

Lawyer Legislators: Post Primary Recap

It’s encouraging to see that several lawyers remain candidates in races for statewide office following the state primary elections.  As mentioned last week, several veteran lawyer legislators have chosen not to seek reelection this year.  A notable loss is Senator Steven Panagiotakos, the current chair of the Senate Committee on Ways & Means, who announced earlier this year that is stepping down in order to pursue other challenges.

In spite of these losses, the number of lawyer candidates that remain may not result in a net loss in the number of lawyer legislators in the State House.  In the House there are 10 lawyer legislators that are not seeking reelection.  Of those 10 seats, 6 do not feature a single lawyer candidate in the general election while 2 feature only lawyer candidates.  The other 2 seats have one lawyer candidate in the general election.  Additionally, there are 5 more races in which there is a lawyer candidate on the general election ballot.

In the Senate there are 4 lawyer legislators not seeking reelection. Half of those seats do not have a lawyer candidate and the other 2 races each have one lawyer running.  Interestingly, there are 2 current lawyer House members running in different open Senate races.

While the BBA has not and will not endorse political candidates, we commend those that choose to utilize their legal education and skills by becoming public servants.  Lawyers and legislators share the same drive: to use law to protect the public’s rights and to improve society.  Lawyers make good legislators no matter their party affiliation because the education and training involved gives lawyers analytical and oratorical tools that prove exceptionally useful in the legislature.

Still, it requires an enormous amount of disciple and balance for lawyers to maintain an active practice and serve as a legislator (not to mention a healthy personal life).  A former lawyer legislator and reader who served 3 terms in the Massachusetts House of Representatives noted in a comment on last week’s blog post that, “Combining a law practice with legislative duties is very difficult as the time demands of legislative business in Boston and of constituent servicing in the district are great.  Contrary to public perception, being a legislator harms, rather than helps, the development of the law practice as so much time is spent away from the office.”

Hopefully lawyers will continue to answer this call for public service by choosing to run for elective office.  Regardless of your politics, please remember to vote in the general election on November 2nd.

-Kathleen M. Joyce

Government Relations Director

Boston Bar Association

Lawyer Legislators: An Endangered Species?

The BBA values its relationship with the Massachusetts Legislature.  Lawyer legislators, in particular, understand the issues important to the private bar.  A quick look at the bills that the BBA filed this past session shows that almost all of them were filed by the chairs of the Joint Committee on the Judiciary.  The two chairs of that committee, by no coincidence, are lawyers.  Senator Cynthia Creem is a practicing domestic relations lawyer and Representative Eugene O’Flaherty is a criminal defense attorney.

In general, lawyer legislators are the exception to the rule.  It may surprise you to know that only 62 of the 200 legislators in the Massachusetts Legislature are attorneys.  That breaks down to 50 of the 160 House members and 12 of the 40 Senate members.  Law school, which was once a popular educational path to Beacon Hill, is no longer quite as common.  Today lawyer legislators are a minority among their colleagues.  This makes it increasingly more important to foster our relationships with those in the Legislature who understand the BBA’s issues like access to justice, criminal justice reform and even our complicated trusts & estates issues.  More and more we rely on lawyer legislators to educate and convince their non-lawyer colleagues that issues critical to the practice of law and the administration of justice demand action by Commonwealth.  It’s safe to say that the lawyer legislators we do have are overwhelmed at times with this task.

Recent events have shifted the political winds.  An independent political movement has shaken up some of the legislative races in Massachusetts this election season.  The next few weeks will be interesting.  Promising some turnover, there are 26 House seats and 8 Senate seats in which the incumbent is not running for reelection.  Of the 26 House members not seeking reelection, 10 are lawyers.  Half of those races don’t even feature a lawyer as a candidate.  On the Senate side, half of the 8 Senators not seeking reelection are lawyers and one of those races does not include a lawyer candidate.

Next Tuesday the 14th is the state primary and the general election is November 2nd.

-Kathleen M. Joyce
Government Relations Director
Boston Bar Association

Finance Reform is Important for Consumers

As announced in this week’s BBA Week, the Consumer Finance Working Group is now the Consumer Finance Committee.  The Committee will review consumer finance products and assess recent problems that have arisen.  Composed of lawyers who practice in the Massachusetts state courts and in the federal court, and who represent both creditors and debtors, the timing of the group’s work could not be better as national attention has focused on matters of consumer protection.

Just last month, Attorney General Martha Coakley joined President Barack Obama as he signed into law the historic financial reforms included in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.  That bill creates the Consumer Financial Protection Bureau to help protect consumers when they make investments, take out mortgages, and use credit cards.

Here’s a snapshot at what the BBA has been doing in this area.

Since Spring 2008, the BBA’s Consumer Finance Working Group has been looking at several issues including the proliferation of deceptive “loan modification programs” on the radio and Internet, and the explosion in consumer medical debt and issues with consumer medical debt collections.  Adam Ruttenberg and Andrew Dennington, co-chairs of the Consumer Finance Working Group and now of the Consumer Finance Committee, focused their efforts on amending the Attorney General regulations on consumer debt collection after meeting members of the AG’s Consumer Protection Division.  The group proposed amendments to the AG regulations which would largely track the more modern federal Fair Debt Collection Practices Act, and recent revisions of Massachusetts Division of Banks regulations regarding activities by licensed debt collectors.  These amendments were included in the First Report of Consumer Finance Working Group and will ensure that debt collection practices that are unfair or deceptive when conducted by a licensed debt collector, will likewise be unfair or deceptive when performed by a creditor.

After the BBA Council approved the Report and the recommendations at its July meeting, they were submitted to the Attorney General’s office.  Building upon the momentum generated by the First Report, the new Consumer Finance Committee held their first official meeting on August 10th to explore options for their next project.  In the meantime, on September 15th the Consumer Finance Committee will co-sponsor a CLE on the implementation of the new consumer protection legislation.  The CLE will feature a panel discussion on topics such as the creation of the Consumer Financial Protection Bureau, enhancement of bank-affiliate and bank-insider transaction restrictions, and anti-predatory lending provisions.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

The BBA’s Getting it Right

Many people view the legislative system as being highly mechanical due to the complexity of the rules, laws, and procedures that govern it; however, the process really begins in a very basic way.  Each law starts as an idea which can come from anyone: an individual or group of citizens, a legislator or legislative committee, the executive or judicial branch, or a lobbyist.

Every year, thousands of ideas are heard before the Massachusetts Legislature, but very few are actually incorporated into law.  So, what about a bill determines its success?  Or conversely, what sends a bill into an endless loop of study sessions and delays?

Any good proposal starts off as a simple bill.  You need to find good powerful sponsors who care about it and will try to present the bill early.  You need grassroots support and you need an early and aggressive education campaign.

Many things go into crafting a simple bill that legislators will want to sponsor.  Simple bills are ideas that seek to improve upon a current law or solve a problem in the current law.  Part of the BBA’s role in this process is to bring together the experts on a particular topic.  One of the ways that the BBA assembles experts is in the formation of a task force to study a topic and to issue recommendations for improvement.

Take, for example, the BBA’s Task Force to Improve the Accuracy and Reliability of the Criminal Justice System.  Formed in September 2008 by then-President Kathy Weinman, the Task Force constituted the broadest group of criminal justice participants ever assembled by a Bar organization to address wrongful convictions.  Under the leadership of its co-chairs David Meier and Martin Murphy, the task force sought to develop recommendations that would increase the accuracy and reliability of the criminal justice system.

The Task Force released its report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, in December 2009 at a press conference held at the BBA.  Members of the task force fielded questions from the media and participated in interviews with outlets such as the Boston Globe and Neighborhood Network News.

The report makes three recommendations in the area of forensic science:

(1)   enactment of a Massachusetts statute to guarantee post-conviction access to DNA testing and to require preservation of biological forensic evidence.

(2)   expanding the membership and function of the state’s Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors.

(3)   create protocols and training in best practices for evidence collection, processing and retention.

While the release of the report marked the culmination of the Task Force’s work, the lobbying efforts were only just underway.  Members of the Task Force met with the chairs of the Joint Committee on the Judiciary, answering their questions and garnering their support.

But there is more work to be done because, in recent years, similar bills dealing with forensic evidence issues have stalled in the legislature.  This work will include partnering with the New England Innocence Project, along with the Committee for Public Counsel Services and the American Civil Liberties Union, both of which have filed similar proposals.

The energy around the Task Force’s work still continues.  Last month, the BBA hosted a program that featured an engaging panel discussion regarding wrongful convictions and ways to improve upon the Commonwealth’s criminal justice system.  The panel included Jennifer Thompson-Cannino, Chairman Eugene O’Flaherty, Honorable Margaret Hinkle of the Superior Court Administrative Office, Robert Merner (formerly of the Boston Police Department), Joseph Savage Jr, Martin Murphy, and David Meier.

The BBA thanks the Task Force for its tireless efforts, and is pushing for this good idea to be passed.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

BBA Comments to the Courts

In the spirit of celebrating the accomplishments of the program year that will soon draw to a close (Sept. 1 – Aug. 31), the BBA would like to highlight the work of its members in making an impact on the SJC rulemaking process.  The BBA regularly comments on proposed amendments and rules changes, creates task forces to study and help solve critical issues of interest to the Commonwealth, and also articulates its public policy positions through the filing of amicus briefs.

In this past program year, our membership has actively addressed several important issues in the Commonwealth’s courts.

Rule 4:03

Periodic Assessment of Attorneys

In December of 2008, the BBA’s Delivery of Legal Services Section helped garner the BBA’s support of the Access to Justice Commission’s proposal to the Supreme Judicial Court that it amend Rule 4:03 “Periodic Assessment of Attorneys” by adding to the annual registration fee a contribution of $50 to support civil legal services.  The contribution would be voluntary and the attorney registrant could opt-out of the contribution.  This Spring the SJC agreed and approved the Access to Justice Commission’s proposal to include an optional registration fee.  In fact the court increased the contribution amount to $51.

The BBA has always been and will continue to be a strong advocate for ensuring that everyone has equal access to justice, and funding for civil legal services is a key component to making this a reality.

Look for this change in your annual registration form starting September 1, 2010.

Rule 3:01 and New Rule VI of the Board of Bar Examiners

Foreign Attorney Admission

The BBA’s diverse membership includes many lawyers whose educational and professional backgrounds span the globe.  In 2006, the BBA convened The Study Group of Foreign Attorney Admission to examine Massachusetts’ admission requirements for foreign-trained attorneys.  After careful study, this Group developed recommendations reflecting proposed guidance derived from two Supreme Judicial Court cases, Wei Jia v. Board of Bar Examiners (1998) and Osakwe v. Board of Bar Examiners (2006).  The BBA believes that the key criteria for eligibility to take the Massachusetts bar exam should be legal education requirements, including both general education in common law and particular education in American law.

The SJC invited comments on the changes and the BBA, with help from its International Law Section, submitted comments requesting that Rule 3:01 and New Rule VI provide greater clarity and transparency in the rules, and better consistency by the Board of Bar Examiners in its application of them.  Happily the SJC approved the amendments to both rules.  These changes became effective July 1, 2010.

Standing Order 1:09

Sealing of Criminal Cases

Last year, the BBA voted to support a proposed interdepartmental order to Chief Justice Charles Johnson of the Boston Municipal Court.  The proposal came from one of our oldest partners, Greater Boston Legal Services.  The interdepartmental order would permit individuals to seek in one court the sealing of criminal cases that have been disposed of in other courts.  The previous process for sealing a criminal record could be cumbersome when an individual had several cases in different divisions of the trial court.  Not only did an individual need to travel to each court, but because the previous statute required two hearings before any individual motion to seal was blocked, it was necessary to travel to each court twice.

Chief Justice Johnson agreed to implement this innovative approach to case management.  He signed Standing Order 1:09 in May 2009 as a one-year pilot project.  This past winter, at the urging of our Delivery of Legal Services Section, the BBA requested that the standing order be extended for another year.  Chief Justice Johnson agreed and extended the order through May 14, 2011.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

BBA Legislative Impact – Highlights From Formal Session

The 2009-2010 Legislative Session highlights the BBA’s extensive and varied public policy portfolio focusing on the administration of justice, the practice of law, and other issues of particular interest or concern to the organization. We’ve scored some significant legislative victories. We’ve made progress in other areas and remain committed to those issues as the legislature continues to meet during informal session.

Thank you to our members who helped advance these important issues.  Your leadership, expertise and energy throughout the past session really made a difference.  The BBA could not have been done any of this without your dedication to these issues.

Here’s a snapshot at what did happen and what did not happen before the end of formal session on July 31st.

 

CORI and Sentencing Reform

After weeks of negotiations and public conference committee meetings, Chairs Eugene O’Flaherty and Cynthia Creem shepherded a crime package through both chambers during the final hour of formal session.  It could not have been done without O’Flaherty and Creem or the leadership of Senate President Murray and House Speaker DeLeo.  The bill that was passed does not include all of the sentencing reforms the BBA had hoped to see. But this is a significant first step.  Governor Patrick is expected to sign this comprehensive crime bill on Friday August 6th.

The bill includes important mandatory minimum sentencing reforms and grants parole eligibility for offenders serving at county Houses of Correction after serving one-half of their sentence.  The bill also includes significant changes to the Criminal Offender Record Information (CORI) which will increase access and improve accuracy.  These changes will also create opportunities for reformed offenders to obtain jobs.

The BBA has been a vocal advocate of mandatory minimum sentencing reform for more than 20 years and has been working diligently on CORI reform since 2006, when the BBA’s Study Group on CORI developed principles specifically addressing our concerns: accuracy, access, sealing, and juvenile justice.

Condo Common Area Interest

Another BBA supported bill made its way to Governor Patrick’s desk in the last two weeks.   An Act Relative to the Determination of Condominium Common Area Interest became law on July 26, 2010.

Working with the Citizens’ Housing and Planning Association since 2007, the BBA’s Real Estate Section sought to clarify the definition of “fair value” in Massachusetts General Laws, Chapter 183A when determining the percentage interest for condominiums.  It does not require a specific method for calculating common area interest but instead describes elements, such as approximate unit area, construction cost, and affordability restrictions.  The technical clarification will also provide useful options in establishing percentage interest which will increase predictability and decrease litigation.

The MUPC

A big BBA victory came at the very beginning of the legislative session when the Massachusetts Uniform Probate Code (“MUPC”) was signed into law on January 15, 2009.   For over 20 years the BBA has supported the establishment of a Massachusetts Uniform Probate Code.  The BBA, along with our partners at the MBA, created a joint task force to study the issue and regularly filed legislation to enact necessary changes.  The MUPC codifies and restates much of Massachusetts law regarding wills, trusts, guardianships and conservatorships and probate proceedings.  The BBA’s Trusts and Estates Section continues to identify technical changes that will improve the model bill and we are still working with the legislature to incorporate those corrections.

Small steps – legislative progress in other areas

As often happens at the end of the formal legislative session, a few big issues grab the attention and focus of the legislature while other pieces of legislature continue in a holding pattern.  Here’s a look at other member-driven policy proposals we are still working on during the next few months of informal sessions.  There is still the possibility that some of them will get done during informal sessions. But if not we will refocus our efforts and refile them for the 2011-2012 Legislative Session.

 

Post-conviction access to DNA

The December 2009 release of the BBA’s report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, has brought a lot of attention to this issue in Massachusetts. The BBA is still getting calls from police departments across the state asking for additional copies of our report.

Currently Massachusetts is one of only two states (Oklahoma is the other) that does not provide for access to forensic evidence after an individual is convicted.  Similar legislation has been filed for many years in the Judiciary Committee.  It was our members’ work and the expertise of our Task Force that has renewed interest in this.  The BBA is excited that the issue has finally grabbed the Judiciary Committee’s attention and the bill was reported favorably before the end of formal session.

As the BBA continues to meet with legislative leaders to ensure that the Task Force’s recommendations are implemented, the good news is that we have the support of both chairs of the Joint Committee on the Judiciary.

Alimony Reform

After the recommendations of the Joint BBA/MBA Alimony Task Force were endorsed by the BBA Council in March 2010, the Chairs of the Judiciary Committee established a Legislative Task Force to review the many alimony bills that were pending before the Judiciary Committee.  This was after the Judiciary Committee had conducted a public hearing on the issue.  The BBA was invited to be a part of this group to make recommendations on reforming Massachusetts alimony laws.  The Task Force plans to continue their work and is hoping to have a comprehensive piece of legislation in the upcoming months.

Trusts & Estates Law Updates

The hard work and expertise of our very active Trusts and Estates Section led to a handful of bills that we were able to get introduced as late files thanks to Chairman O’Flaherty.   While none of these bills made it out of committee and in many cases never even got docketed we will continue to push for progress.

In addition to the technical corrections to the Massachusetts Uniform Probate Code which would clarify certain provisions of the MUPC and correct typographical errors found in the act we late filed the following bills:

  • The Massachusetts Uniform Trust Code (“MUTC”) contains provisions that would concentrate the Massachusetts statutory law of trusts in one place and supersede the Massachusetts common law of trusts to the extent that these laws are inconsistent.
  • The proposed Estate Tax Patch Statute is a default, but rebuttable presumption for the construction of will and trust formulas keyed to the federal estate tax or generation-skipping transfer tax.
  • Adopted Children Legislation, Chapter 524 of the Acts of 2008. On July 1, 2010, there was a change to a longstanding rule of construction governing the treatment of adopted persons in wills, trusts and similar instruments executed before August 26, 1958.  In response to the BBA’s advocacy last year, the Legislature included provisions in the 2009 budget that essentially suspended the Chapter 524 changes during the year from July 1, 2009 to June 30, 2010.  The BBA, along with its partners the MBA and the MA Bankers Association, continues to work on the repeal of this new rule of construction.

 

  • One other Trusts and Estates issue not yet filed but supported by our Council is the The Massachusetts Income Tax “Step-Up” would provide for the continuation of a “step-up” in the Massachusetts tax basis in property acquired from a decedent.  In the absence of any corresponding Massachusetts change, the change in federal basis rules for 2010 will result in a substantial, hidden Massachusetts tax for successors to decedents’ property.

Banks and Banking, H 1000

An Act Relative to Banks and Banking was endorsed by our Council in April 2010 and was the work of the BBA’s Business Law Section.  H 1000 would update the corporation law cross references in the Massachusetts banking laws to reflect the adoption of the Massachusetts Business Corporation Act.  The BBA will work to see that this bill gets reintroduced in the next session.

Homestead Law Reform, M.G.L. c.188

 

Our work on Homestead reform, a pressing consumer protection issue, will continue.  Impetus for this reform initially came from a detailed study of the MA homestead statute appearing in the Boston Bar Journal several years ago. The study concluded that c.188 was so badly in need of change that only a complete rewrite would suffice. With the leadership of then BBA president M. Ellen Carpenter, a bankruptcy lawyer, the BBA in the summer of 2005 responded with homestead reform legislation.

Ever since that time the BBA has been working – along with its partners at REBA to secure passage of legislation. The BBA is confident there is still enough time to get this done before the end of 2010.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association