SJC Supports ‘Consent-to-Settle’ Insurance Clauses, in Keeping with BBA Amicus Brief

On December 16, 2019, the SJC announced its decision in Rawan v. Continental Casualty Company, a case that addressed whether an insurance company must honor a so-called “consent-to-settle” clause, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy. The BBA was pleased to see that the SJC accepted our argument that an insurance company must honor these clauses. (You can read our full statement on the ruling here.)

The BBA filed an amicus brief in support of the Defendant-Appellee Continental Casualty Company on the questions posed by the SJC in their request for amici briefs, “whether a liability insurer violated its duty, under G. L. c. 176D, § 3(9)(f), to effectuate a prompt, fair, and equitable settlement of a claim in which liability had become reasonably clear, where the insured refused to consent to a settlement and the insurance policy provided that the insurer would not settle any claim without the informed consent of the insured; whether such a provision is unenforceable as against public policy.”

The BBA brief, as drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody and Arnold, argued that:

“Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which insures to the benefit of the insured, not the insurer.”

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Echoing that view, Justice Scott Kafker, writing for a unanimous SJC, asserted that:

“Consent-to-settle clauses also serve valuable purposes in the professional liability context, including the important protection of a professional’s reputation and good will. Moreover, consent-to-settle clauses encourage professionals to purchase this voluntary line of insurance, thereby providing more secure funding for the payment of third-party claims.

Consent-to-settle clauses serve important purposes in this optional line of insurance. Most importantly, they encourage professionals to purchase such insurance, thereby providing coverage for the insured and deeper pockets to compensate those injured by the insured.”

We were pleased to see that the Court upheld the right of professionals and insurance companies to enter into liability policies that include “consent to settle” provisions, the exact outcome that our brief argued for. We are thankful to the brief drafters as well as the entire BBA Amicus Committee—co-chaired by Erin Higgins of Conn Kavanaugh LLP and Neil Austin of Foley Hoag LLP—for their work in this case.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

The Death Penalty in the News

On Monday, the Justice Department asked the U.S. Supreme Court to let it resume the federal executions scheduled for December 9 by “setting aside” a district court’s injunction blocking it from carrying out lethal injections as planned. The November ruling held that the Justice Department’s proposed lethal injection procedure “is not authorized” by federal law. This order temporarily called off four executions scheduled for December and January, which would have been the first carried out by the federal government since 2003. The Justice Department’s new request marked an escalation of the Trump administration’s push to restart federal executions.

The BBA has opposed the death penalty for more than 40 years. In 2013, the BBA Death Penalty Working Group published a report outlining the three bases for the BBA’s position:

  1. that the inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
  2. that, in practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
  3. that death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

We have been committed to policy advocacy against the death penalty, for instance, by filing numerous amicus briefs, including in Commonwealth v. O’Neal, Commonwealth v. Colon-Cruz, and U.S. v. Darryl Green. You can read more about the BBA’s work on the death penalty here.

This week, Jim Petro, a former Ohio attorney general, published an opinion piece in the New York Times where he outlined why he, as someone who has seen the death penalty up close, believes that the death penalty is a “failed policy”. Mr. Petro outlined the following:

Another unfortunate reality is that the federal death penalty is marred by the same problems of racial bias and geographical disparity found in the state death penalty systems. Just three Southern states — Texas, Virginia, and Missouri — are responsible for nearly half of the federal death row population. People of color, particularly African-American men, also account for more than half of all current federal death sentences. And the overlap between these two areas of disparity is significant: Every person on the federal death row from Virginia and all from the Eastern District of Missouri are people of color. And people of color have received 75 percent of federal death sentences imposed in Texas in the modern era.”

He also explained that many of those in favor of the death penalty are under the impression that it is reserved for crimes affecting our national interests, such as terrorism and espionage, when in fact, only one federal inmate is under a death sentence for a terrorism offense, and none for espionage or treason. He concludes, “Capital punishment is costly, offers no proven deterrent benefit and delays healing for victims’ family members, while also traumatizing correctional officers and risking the execution of innocent people.”

As our amicus brief in Colon-Cruz noted, lawyers involved in these cases are traumatized as well: “The psychological and emotional burdens on counsel, particularly on the defense, are immense.”

We join Mr. Petro in urging the Trump administration to suspend the attempt to resume with the executions scheduled for next week. The federal government has not executed anyone since 2003, and the Trump administration should keep it that way.   

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Walk to the Hill 2020 and BBA Budget Advocacy Preview

Mark your calendars! Walk to the Hill for Civil Legal Aid, one of the state’s biggest lobby days, is happening at 11am on January 30, 2020. This annual event brings together hundreds of attorneys and public policy advocates at the State House to hear speeches from the judiciary, the bar, and individuals who have been helped by legal aid funding. Following the speeches, you can grab lunch and spread out to speak to your own legislators, urging them to increase state funding for programs that provide civil legal aid to low-income Massachusetts residents.

We will be hosting our annual breakfast directly before the event. You will be able to look up your legislators, hear from our Government Relations team on how to speak to them about civil legal aid, and join us for the short walk across the street to the Great Hall of the State House for the start of the event. We continue to participate in this event every year because of its significance in the budget campaign for civil legal aid, led by the Massachusetts Legal Assistance Corporation (MLAC) and the Equal Justice Coalition (EJC) every year. Keep reading to learn more about the significance of Walk to the Hill and about how much funding MLAC and the EJC will be requesting in the FY21 Budget.  

The Importance of Civil Legal Aid

MLAC is the largest funding source for civil legal aid programs in Massachusetts. It was established by the state legislature in 1983 to ensure that low-income people with critical, non-criminal legal problems would have access to legal information, advice and representation. In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding, revealing that MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants.

According to a 2017 report by the Legal Services Corporation, low-income Americans receive no or inadequate professional help for 86% of their civil legal problems. And, the report states, 71% of low-income households in America have experienced at least one civil legal problem in the past year. The gravity of this problem is great in Massachusetts, where, due to a lack of funding, legal aid programs are forced to turn away most eligible residents – nearly 45,000 people each year – who seek help.

The Budget Ask

Last year, we asked for a $5 million increase in the MLAC budget-item for a total appropriation of $26 million. In a big victory for civil legal aid, MLAC received a $3 million increase, resulting in a $24 million appropriation, up from $21 million for FY19. This in turn allowed MLAC to increase its support for the 16 legal service organizations it funds in FY20 – its largest-ever round of state appropriation funding for legal services organizations in Massachusetts.

The legal aid organizations that receive funding from MLAC provide critical civil legal aid to struggling people who otherwise would not have legal representation in serious civil legal matters. In most instances, people qualify for civil legal aid if their annual income is at or below 125 percent of the federal poverty level, or $32,188 for a family of four.

The legal aid organizations receiving MLAC funding include regional organizations — which provide advice and representation to low-income people facing civil legal issues related to housing, health care, public benefits, immigration, domestic violence, and other serious legal issues — and statewide organizations that specialize in certain areas of law and serve clients statewide.

For FY21, the EJC is requesting an additional $5 million increase from last year’s budget, which would total $29 million. The Governor will release his FY21 budget during the last week of January, marking the beginning of a months-long process to the final budget. The next major step comes in mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate. After that, it’s on to the Senate for the same series of events, with their version released in May. Then comes a conference committee to reconcile the inevitable differences between the two houses’ budgets, and when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override. 

This is why Walk to the Hill is such an important advocacy opportunity. Rallying at the State House and meeting with legislators immediately afterwards offer the best opportunity for BBA members and the legal community as a whole to:

  • thank elected officials for their past support,
  • remind them of the importance of civil legal aid,
  • and explain that further increases are still desperately needed to keep up with the growing demand on the civil justice system.

The same BBA commitment to access to justice also led us this year to join the Right to Counsel Coalition, in support of providing representation to low-income tenants and landlords in eviction cases. The coalition has been gaining support in the past months, receiving shout-outs from the Boston Globe and SJC Chief Justice Ralph Gants during his State of the Judiciary speech. You can read more about that effort here.

If you don’t know your legislators, you can look them up here, and if you need a refresher on how to talk to your legislators, listen to our “Talking To Your Legislator About Legal Aid” podcast and then join us at the BBA for our annual pre-Walk breakfast, where our Government Relations director will issue advice on how to be the best advocate for civil legal aid you can be. Please don’t hesitate to contact our Government Relations team if you want to learn more about how you can get involved in Walk to the Hill or the fight for funding for civil legal aid.

-Lucia Caballero
Government Relations & Executive Assistant
Boston Bar Association

SJC Considers Shortage of Lawyers to Represent Indigent Criminal Defendants

We’ve written here before about a set of three cases in Hampden and Worcester Counties which highlight the shortage of available attorneys to represent indigent criminal defendants, as the Constitution requires.

The BBA submitted an amicus brief on the issue to the SJC, as we did in 2004— the last time the Court heard a similar case.  We urged them to act decisively to address this constitutional crisis, which was triggered, once again, by underfunding of the Commonwealth’s commitment to the right to counsel enshrined in Gideon v. Wainwright.

On November 7, the SJC held 2+ hours of oral argument on three cases. Although the BBA brief was not cited by name, justices referred to our argument that an increase in the hourly rates offered to private attorneys who handle indigent criminal defense could provide a resolution to the problem. They also brought up our point that public-safety concerns are heightened where, as here, prosecutors seek to hold the defendant on dangerousness grounds.

Much of the discussion centered on the so-called Lavallee protocol, as set forth in that 2004 case. The protocol calls for defendants to be released after 7 days if no attorney can be appointed, and charges to be dismissed, without prejudice, after 45 days. 

Attorneys differed over whether it still provides a workable solution, and over whether the justices should view it as a way to ensure defendants’ rights are honored, or as a way to impose consequences when they are not.

The was no agreement over whether the Lavallee decision applies to the current situation, how such a decision is to be made by the courts, what (if anything) should replace Lavallee, nor whether the SJC can exercise its superintendence authority to increase hourly compensation rates in order to increase the supply of attorneys accepting indigent-defense cases.

Also at issue — though the BBA brief took no position on it — was interpretation of the SJC’s 2017 Brangan ruling, which holds that, in making bail decisions, judges must take into account the defendant’s ability to pay, and, when imposing bail at a level that a defendant likely cannot pay, must explain why there was no other way to guarantee the defendant’s appearance.

You can read our live-tweeting of the oral argument, and you can watch the full video. A decision is expected by March — coincidentally, just as budget discussions at the State House begin to heat up.

-Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update: Public Charge, DACA at the Supreme Court, and the “Remain in Mexico” Policy

We continue to monitor developments on immigration policy, especially at the federal level, in keeping with our adoption in 2018 of broad immigration principles. Today, we present updates on a number of related fronts.

First, earlier this month, the Department of Homeland Security proposed new regulations that would increase a broad array of fees associated with immigration applications. 

Although some fees would actually see a decrease, the citizenship application fee would rise from $640 to $1,170, for example, and Deferred Action for Childhood Arrivals, or DACA, applications would go from $495 to $765.

Such changes would be counter to our immigration principles; in the report accompanying them, we wrote:

For people seeking an immigration remedy, the individual liberty interest at stake is “grave,” and so the accompanying protections—constitutional as well as statutory—must be potent. Immigrants face barriers to access to the administrative immigration system established by Congress … when applicants for immigration benefits are charged prohibitively high fees. These barriers call into question whether the constitutional rights of Due Process and Equal Protection applicable to all persons, regardless of immigration status, are more illusion than reality.

But they also run afoul of a position we took in 2008, when we endorsed an ABA resolution declaring (in part), “Fee levels for immigration and naturalization benefits [should not be] so burdensome as to deter eligible applicants from applying for such benefits.”

The timetable for implementation of this proposed rule has it going into effect, on an emergency basis, on December 2.

Public charge rule on hold

The BBA has been closely following the developments of the public charge rule since December 2018, when then-President Jon Albano submitted comments in opposition to the policy and urged others to join. Most recently, we published an Issue Spot blog post citing a new Migration Policy Institute study that detailed exactly how the proposed policy would affect legal immigrants in the U.S.

The most recent update to this policy is that federal judges in three states – New York, California, and Washington – have issued temporary injunctions to prevent the rule from taking effect on October 15, as was planned. The rule is being challenged in several federal courts and more than a dozen state attorneys general, arguing that it discriminates against low-income immigrants and immigrants of color. One of the major concerns is the impact of the policy on public health, encouraging immigrants to withdraw from public healthcare programs and imposing a huge cost on local and state governments.

The public charge rule goes against our Immigration Principles, which state that: “Every person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance”. The rule not only discriminates against low-income immigrants but also deters all immigrants from accessing public services and fully exercising their rights and freedoms.

DACA Arguments at Supreme Court

This week, the Supreme Court heard arguments on what may be one of the most important cases of the year: the decision whether to uphold the Trump administration’s dissolution of DACA.

Enacted in 2012 by the Obama administration, the DACA program was designed to protect undocumented individuals who were brought to U.S. as children. It allows them to work, pursue an education, and be protected from deportation. In September 2017, President Trump declared that the DACA program was “illegal” and “unconstitutional” and initiated the process of dissolving it. Three federal appeals courts ruled that when an administration revokes a policy on which so many people have relied, the administration must provide a fully supported rationale that outlines why, which it did not do in 2017. The Trump administration appealed to the Supreme Court, and that argument took place on Tuesday.

The Supreme Court’s conservative majority signaled that it may back the Trump administration and allow it to shut down the program, affecting 700,000 young people currently protected by DACA.

We hosted a program on this issue in 2017 and are continuing to keep a close eye on it as new developments arise.

Mexico’s Humanitarian Crisis

On Friday, November 8th, the Boston Bar Association hosted Eunice Rendón to give an update on the impact that the “Remain in Mexico” policy has had on refugees, asylum seekers, and migrants in Mexico. Eunice Rendón is the Executive Director of Agenda Migrante and a researcher at the National System of Researchers of CONACYT (Mexico’s National Council of Science and Technology).

Ms. Rendón began her talk by providing an overview of the “Remain in Mexico” Policy. The policy is an agreement between the Mexican government and the U.S. government that asylum seekers going through immigration proceedings must remain in Mexico during the process. Ms. Rendón noted that the six Mexican cities where the migrants must remain are the most dangerous cities in the country, with some of the highest rates of homicide. She stated that it is estimated that there are 50,000 migrants in Mexico, but their whereabouts are unknown by the Mexican government. Ms. Rendón also noted that the Mexican government is feeling the strain of deportees, which has increased to 200,000 a year under the Trump administration. 

The migrants in Mexico are being held in two types of shelters: shelters run by non-profit organizations and official Mexican government shelters. Ms. Rendón believes that both shelters lack the capacity to support the influx of migrants, which has risen from 7,000 a year to 60,000 a year over the past four years. She also noted there is tension between the federal government and local governments on the contribution levels to the shelters. The poor conditions in the shelters have allowed criminal organizations to exploit migrants, by forcibly recruiting them into their organizations, leaving young children especially vulnerable.  Importantly, most migrants are not well informed on the dangers of attempting to cross the U.S. border or the challenges associated with seeking asylum in the U.S. The Mexican government has attempted to deter migrants by posting the National Guard at the southern border, but, according to Ms. Rendón, they are not well-trained in immigration enforcement proceedings and are not doing an adequate job.

Ms. Rendón concluded her talk by stating that Mexico has undergone a transition from being only a point of transit in the migratory process to becoming a reception country. The people of Mexico have become fearful of migrants due to the reverberation of xenophobic language coming from the Trump administration. Migrants are now settling into Mexican communities as they await asylum claims in the U.S. In dealing with the changing face of migration, Mexico does not have the resources to respond.

This event was co-sponsored by the Immigration Law Section Steering Committee and the Boston Bar Foundation’s Policy Research and Innovation Fund.

-Michael Avitzur
Government Relations Director
Boston Bar Association


Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Right-to-Counsel Coalition Gains Support

This year, the BBA joined a broad coalition seeking to enact a right to counsel in eviction cases for indigent tenants and landlords. This position jibes with our past support for a right to counsel, generally, in civil matters involving basic human needs.

In the past month, both The Boston Globe and SJC Chief Justice Ralph Gants have expressed strong support for legislation to achieve the coalition’s goal.

As the Globe put it in their editorial after citing successful efforts along the same lines in a few U.S. cities, “For renters who don’t have the financial means, the right to a court-appointed lawyer would level the playing field and offer them a better chance of success at staying in their homes.”

At his State of the Judiciary speech on October 30 (read more about the event here), the chief justice endorsed the measure, saying, “I know that there are legislative efforts afoot here in Massachusetts to provide legal counsel for all indigent parties in eviction proceedings, not only tenants but also indigent landlords who rely on the timely receipt of rent to make their mortgage payments and avoid foreclosure, and I hope that by next year these efforts may finally come to fruition.”

The coalition will soon be delivering bill language to the Legislature that would make Massachusetts the first state to offer this right to counsel.

-Michael Avitzur
Government Relations Director
Boston Bar Association

State of the Judiciary

Each year at the John Adams Courthouse, the SJC’s Chief Justice, the Trial Court’s Chief Justice and the Court Administrator all present remarks on their priorities for the coming year.

This past October 30, Chief Justice Ralph Gants of the SJC gave his sixth such address, using the occasion to express his support for a right to counsel in eviction cases and discuss plans to develop a “virtual court service center” to assist litigants who need help navigating the court system.

He also demonstrated his continued concern about lawyer well-being with two new measures, following up on this past year’s report by a special committee the Court had appointed. The chief announced the establishment of a new Standing Committee on Lawyer Well-Being, as recommended in the report.

Second, the SJC will be establishing a pilot mentoring program for newly admitted solo and small firm practitioners. He also called on attorneys to honor their responsibility to be civil, while adding that judges should show deference to requests for extensions.

On other issues, Chief Gants said a new court working group will address best practices in dealing with criminal defendants who have substance-abuse and mental-health challenges, and pledged that the District Court and BMC have made necessary changes to handle the increased caseload once new rules on procedural-amount jurisdiction in civil cases go into effect in January.

Trial Court Chief Justice Paula Carey talked about implementation of the 2018 criminal-justice reform law, saying that new funding will expand evidence-based support services, including community corrections, for high-risk/-need defendants, building a comprehensive re-entry pathway.

She also pledged that no court in the nation is more engaged in a systemic effort to improve initiatives on diversity, equity, and inclusion, both in the courts and in the community at large. All Trial Court departments, she said, are committed to education, training and outreach, including engaging in difficult conversations.

Chief Carey also discussed the importance of tackling the impact on the courts of substance abuse and trauma, saying, “Trauma can be difficult to identify but is ever-present and overwhelming for both the individual and the court. What is often lost is the trauma experienced by employees of the Trial Court. [It is] imperative that we have resources available for court users, judges and staff.”

Finally, Trial Court Administrator Jon Williams talked about the newly-filed bond bill that promises to significantly upgrade the Trial Court’s information-technology capacity.

“We need major capital investment to transform the role of technology in the [courts],” he told the audience. “Working with our legislative partners, an IT Bond Bill was recently filed to meet the wide range of technology needs for the [judiciary to] transition to…eCourts and cybersecurity.”

-Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Appoints Kate Cook to Corrections Spending Commission

This coming year, the State Legislature is planning to take a serious look at corrections spending and evaluate the distribution of funds across the Department of Correction—which administers the state’s prison system—and the 14 sheriff’s departments—which operate the jails and houses of correction.

The recently-enacted state budget for the current 2020 fiscal year establishes a special commission to conduct a comprehensive study comparing existing funding levels and expenses at each state prison and house of correction and providing a recommendation for an appropriate level or allocation of funding. The budget language, in Outside Section 101, designates a seat for a BBA representative, and we are pleased to have appointed former Civil Rights and Civil Liberties Section Steering Committee Co-Chair and member of the Criminal Justice Reform Working Group, Kate Cook.

Kate has extensive legal, policy and budget experience, and is a partner at Sugarman Rogers where she chairs the Government Law practice. In the past, she served as chief legal counsel to Governor Deval Patrick, advising the Governor and executive branch on legal, regulatory, and policy matters. She also has experience as the General Counsel to the Senate Ways and Means Committee, and as an Assistant Corporation Counsel to the City of Boston.

Kate has been active in the BBA’s Civil Rights and Civil Liberties Section for a number of years. She has also served on our Annual Meeting Steering Committee, the Law Day Steering Committee, the Beacon Award Steering Committee, and the Joint Planning Committee. From 2012 to 2015, she was the Governor’s appointee to the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts.

The Corrections Spending Commission will pursue:

  • a review of staffing ratios and employee costs in each state prison and house of correction;
  • an examination of potential ways to increase efficiencies and reduce fixed costs in state prisons and houses of correction;
  • an analysis of the amount spent by the Department of Correction and by each sheriff’s department on mental health and substance use disorder services and the appropriate levels of funding necessary to meet the service needs of incarcerated people;
  • a review of all discretionary programming offered in state prisons and houses of correction, including an analysis of geographical disparities in discretionary programming;
  • an analysis of the 2018 criminal-justice reform law, its impacts on state prisons and houses of correction and best practices to implement its requirements;
  • a review of the physical assets, infrastructure, buildings and communications equipment owned by each sheriff’s department and state prison; and
  • a review of the funding sources for the Department of Correction and each sheriff’s department, including appropriations from the Commonwealth, commissary charges, prison industries, trust fund accounts, intermunicipal agreements, other inmate fees and expenses and other sources of revenue.

The commission is tasked with submitting a written report of its findings no later than September 1, 2020.

The BBA has had a long-standing commitment to promoting a fair and equitable criminal justice system. In October 2017, the Criminal Justice Reform working group that Kate was a part of published a report titled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System”. That report outlines a set of recommendations that touch on bail, sentencing, recidivism reduction, and criminal record laws—many of which were adopted the following year, as part of a broad criminal-justice reform package.

A report published in 1991 titled “The Crisis in Corrections and Sentencing in Massachusetts,” created by the Task Force on Justice (a joint project of the BBA and the Crime and Justice Foundation), outlined our concern with overcrowding in corrections facilities and the growing issue of mass incarceration.

We are looking forward to learning more about state spending and financing in the correctional system today, and we hope the commission’s final report will help advance our efforts to promote a fair and equitable criminal justice system.

-Lucia Caballero
Government Relations and Executive Assistant
Boston Bar Association

Movement in Congress on Bankruptcy Issues

We have an update from Congress on a couple of bankruptcy-related issues on which the BBA has a formal position.

First, two members of Congress have introduced a bipartisan bankruptcy-venue reform bill. While H.R. 4421 is new to the current 116th session of Congress, it’s substantially similar to legislation that the BBA has previously endorsed.

The proposed law eliminates the place of incorporation in favor of filing where the debtor’s principal place of business or principal assets are located, thus making it more likely that local bankruptcy cases will be decided at home.

Current law provides a loophole that allows troubled companies to flee their home states and seek bankruptcy protection in remote jurisdictions, disenfranchising creditors, employees, pensioners, and other interested local parties.

Bertucci’s, Filene’s, City Sports, Friendly’s, and the Boston Herald are just a few examples of Massachusetts-based firms that have filed in Bankruptcy Court elsewhere since 2009. H.R. 4421 would put a stop to this forum-shopping — a practice that results in the vast majority of major bankruptcies being filed in either Delaware or the Southern District of New York, creating a hardship for local stakeholders.

This is one of those instances when you may be able to help advance the issue: The sponsors of H.R. 4421 (Representatives Zoe Lofgren of California and Jim Sensenbrenner of Wisconsin) are interested in gathering additional support, so if you have a moment to contact your own Representative in Congress, please give them a call or send an e-mail, urging them to sign on.

The second issue has to do with the treatment of Veterans’ Administration benefits to individuals in bankruptcy. You may recall that, this past June, the BBA endorsed legislation to protect those veterans by closing a loophole that excludes Social Security disability benefits, but not veterans’ disability benefits, from the calculation of disposable income when a debtor files for bankruptcy. 

The HAVEN Act was introduced in Congress to rectify this imbalance by excluding veterans’ disability benefits from that calculation of income, and then-President Jon Albano sent a letter to the Massachusetts Congressional delegation, expressing the BBA’s support of it.

Since then, the measure passed both the House and Senate by voice vote and was signed into law.

We thank our own Bankruptcy Section for their work in identifying, researching, and presenting these issues to the BBA Council for their consideration and ultimate endorsement.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief In Support of Just Compensation for Appointed Criminal-Defense Counsel

Citing an on-going crisis in the Commonwealth’s criminal courts, the BBA last week filed an amicus brief urging the SJC to take decisive action to address a shortage of attorneys available to represent indigent criminal defendants, as is constitutionally required.

Submitted in the case of Freddie Carrasquillo v. Hampden County District Courts (SJC-12777), the BBA’s brief traces the long history of underfunding of such defense work—now provided through the Committee for Public Counsel Services (CPCS), often by appointing private bar advocates.

That history includes the so-called Lavallee protocol, instituted by the Supreme Judicial Court (SJC) as part of a 2004 case by that name and once again in effect today. Lavallee requires the Commonwealth to release from pretrial detention all indigent defendants who do not receive a lawyer within seven days, and the courts to dismiss without prejudice the cases of those indigent defendants who do not receive a lawyer within 45 days.

The brief, drafted by two attorneys from Foley Hoag LLP, Amicus Committee Co-Chair Neil Austin and Stephen Stich, and by former Amicus Committee Co-Chair Professor David Siegel of New England Law | Boston, argues that, 15 years later, a shortage of lawyers for indigent criminal defendants, in Hampden County and elsewhere, continues to be a significant problem, and that the emergency Lavallee protocol cannot offer a permanent cure to “the chronic problem of an underfunded criminal justice system.”

Although hourly rates for bar advocates have risen since Lavallee, the BBA brief demonstrates that the increases haven’t kept up with inflation, nor have they amounted to nearly enough for many lawyers to afford to work as bar advocates.

The Carrasquillo case arises from a situation in which the defendant appeared without counsel. The lower court addressed the shortage there by ordering CPCS to provide counsel willing to accept appointment in criminal matters—an order which CPCS then sought to vacate.

The Court there is squarely focused on the Lavallee questions, with the Single Justice having filed an interim order that imposed detailed protocols in Hampden County, in keeping with that earlier ruling. Single Justice Budd then reserved and reported the matter to the full court and asked the parties to submit briefs on possible long-term solutions to the crisis, while keeping in place her earlier order.

The SJC posed the following question in soliciting amicus briefs:

To address the shortage of counsel available in Hampden County to represent indigent criminal defendants, whether the protocol set forth in Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 118 (2004), would provide an appropriate remedy; if not, what other or additional remedies are available.

The BBA uses the opportunity to strongly urge the Legislature, in its brief, to “act promptly and raise bar advocates’ hourly rates to a competitive level” but goes on to recommend that the SJC consider “mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates.” This step represents a continuation of the BBA’s advocacy on the right to counsel for indigent defendants.

“For decades, we have supported appropriate compensation for CPCS attorneys and bar advocates in order to ensure due process and the fair and efficient administration of justice,” said BBA President Christine M. Netski of Sugarman Rogers, “and an effective response to this persistent crisis in our justice system is long overdue.”

The brief cites the detrimental effect of insufficient pay on lawyers’ capacities and well-being. It also makes the argument that systematic underfunding for indigent defense threatens public safety—especially in those instances in which prosecutors seek to have a defendant held specifically on the grounds of dangerousness.

“The BBA argued in our 2004 amicus brief in Lavallee that the justice system cannot work fairly unless defense counsel are paid fairly,” Neil Austin said. “Unfortunately, little has changed, and therefore we must again call upon the Court to act in the interest of justice.”

That 2004 brief addressed the evolution of indigent legal defense programs in Massachusetts and the chronic lack of funding suffered at each stage of their development. Noting at that time that sufficient funds “are not being provided today,” the BBA urged the SJC “to insist upon what may be a harsh reality: that the systems will not work fairly—especially for the defendants—unless defense counsel are paid adequate compensation.”

The earlier brief was drafted by three attorneys then at Choate, Hall & Stewart (today, Choate), Jack Cinquegrana, Michelle Dineen Jerrett, and Terrence Schwab.

On July 28, 2004, the SJC found that the defendants in these cases were being deprived of their right to counsel under the Massachusetts Declaration of Rights and urged all three branches of government to work together to fashion a remedy. Days later, the Legislature passed a bill to increase hourly rates for certain types of cases through a $16.3 million supplement to the Fiscal Year 2005 budget and create a commission to study indigent criminal defendant representation. The final report recommended further increases over a multi-year period. (For a more comprehensive history of CPCS and bar advocate compensation, see here).

However, those recommended increases were never fully implemented, and the problem of chronic underfunding has only worsened. The BBA’s new brief updates the data to highlight the economic challenges facing bar advocates. 

The Carrasquillo case, as well as two related consolidated cases from Worcester County, will be argued before the SJC on November 7, with a ruling expected by March. We encourage you to join us by watching that live from the Brooke Courthouse, starting at 9am.

—Michael Avitzur
Government Relations Director
Boston Bar Association