Congrats to Our Amicus Committee

The Boston Bar Association frequently articulates its public policy positions in amicus briefs.  Earlier this week, the U.S. Court of Appeals for the First Circuit ruled that a judgment of $904,076.17 in attorney’s fees against the Real Estate Bar Association (REBA) violated REBA’s First Amendment right to bring a non-frivolous lawsuit, citing arguments made in a Boston Bar Association amicus brief. (REBA v. National Real Estate Information Services (NREIS) and NREIS Inc.)

Happily, Jonathan Albano and his colleagues Brandon Bigelow and Julie Palmer at Bingham McCutchen LLP volunteered to draft the amicus brief on behalf of the BBA. Working with the BBA Amicus Committee, chaired by Julia Huston of Foley Hoag, the BBA submitted the brief in February.

In its 33 page opinion, the court dealt with several issues and certified to the Supreme Judicial Court of Massachusetts the question of whether the defendants’ business constituted the unauthorized practice of law in Massachusetts.  But the influence of the BBA’s amicus brief jumps from the pages of the First Circuit decision.

Good news to report! In May the BBA Amicus Committee completed a comprehensive review resulting in a new, streamlined process.  The Committee files amicus briefs on behalf of the BBA relating to the practice of law or the administration of justice.  In the last 5 years, the BBA has filed 10 amicus briefs on a range of different issues including wiretapping and attorney-client privilege.  For more information about how to submit an amicus request, visit our website.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

Patching the Estate Tax

Last night I was just about ready to turn Larry King off when I heard him ask Bill Gates Sr. his opinion of the federal estate tax.  As you may know, Bill Sr. has been campaigning to keep the federal estate tax and his son supports his efforts.  As Bill Sr. sees it, the estate tax provides a substantial revenue stream from those with the greatest capacity to pay.

As Congress considers what to do about the federal estate tax the BBA is about to file a bill in the state legislature that would “patch” the federal estate tax and generation skipping transfer tax (“GST” taxes) for one year – providing us with the same exclusions that we had in 2009.

Here’s why we need the “patch.” Today the federal estate tax is zero, the result of legislation passed by Congress in 2001. That being said, virtually every estate planner expected that Congress would enact some form of federal estate tax before its 2010 sunset.

As 2010 approached, many lawyers in Massachusetts predicted that Congress would at the very least “patch” the transfer tax laws so that we’d have the same exclusions and tax rate we had in 2009.  The thought was that this “patch” or temporary solution would be in place until Congress decided what to do for the long term.  That didn’t happen, and this has led to complications in estate planning, as well as questions about whether or not estate plans will work as they were intended to work.

Congress’s failure to act in this regard creates havoc with an unknown number of estates of Massachusetts residents whose estate planning was done on the presumption that there would be some sort of federal estate tax system in effect in 2010.  This could also lead to failed bequests or potential litigation.

The BBA’s proposes to address this problem by filing retroactive legislation that would:

  • provide a default but rebuttable presumption for tax formula clauses tied to the federal estate and GST taxes;
  • reduce the burden on the probate courts of hearing construction cases related to tax formulas and other provisions in wills and trusts where there is no ambiguity on the face of the document;
  • relieve smaller estates from the expense and delay of asking a probate court to construe such formula tax clauses in each case;
  • in cases where the default presumption is not the intent of the testator or grantor, it will allow the probate courts to consider extrinsic evidence to determine grantor or testator intent even where the instrument is ambiguous; and,
  • exonerate any executor or trustee who makes funding or distribution decisions based upon the 2010 suspension.

It appears that Congress is not able to reach a consensus on what to do with this quirk in the law so it is even more imperative that Massachusetts act and act quickly.  The bill is expected to be filed this week.  Thanks to Chairman Eugene O’Flaherty for recognizing the importance of this issue and for taking the important step to do something in Massachusetts while the debate is still going on in DC.  Let’s hope we can get this important piece through the legislative process soon.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

When Budget Cuts Fly in Face of Constitutional Requirements

The Senate released its budget recommendations earlier this week.  Amendments are due today and the budget will be considered by the full Senate starting on Wednesday May 26th.  Like the House version of the budget, the Senate did not rely on any new revenue or withdrawals from the Rainy Day Fund.  That means budget cuts are going to be felt everywhere.

While Massachusetts Legal Assistance Corporation (“MLAC”) made it through 3 big hurdles– the Governor’s budget, the House budget and the Senate budget – with level funding in place, it’s still not over.  Senator Panagiotakos has emphasized that revenues can still be reduced — making more cuts necessary if tax revenues for April don’t hold up.  The other source of MLAC’s revenue is from the Interest on Lawyers’ Trust Accounts (“IOLTA”) which has continued to feel the devastating effects of the recession with income from this source falling 66% from FY08.  This means that grants to legal aid programs will be cut.

The Senate’s budget was more favorable to the Trial Court than the House budget, but the Senate’s appropriation of $544.3, is $15.1million, or 2.7% less than FY10.  This is not enough for the courts to meet the rising need for access to the courts.  This will undoubtedly mean even slower-functioning courts and delays in administering justice to the 42,000 citizens who use our state courts each day.

The Committee for Public Counsel Services (“CPCS”) did not fair as well in the Senate as they did in the House.  CPCS was funded at $166 million which is about $26 million less than what they got in the House budget.  The line item that was most underfunded for CPCS was the private counsel compensation line item which was funded at $28 million less than what the House provided.  We are talking about the attorneys who represent the majority of indigent criminal defendants, children and families, and people with mental illness.

Massachusetts is obligated to provide competent legal counsel to every indigent person charged with a crime punishable by imprisonment, and CPCS is the state agency that manages these responsibilities.  The size of the budget needed to fulfill this obligation is dictated by forces outside CPCS’s control, namely the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In order to ensure that private attorneys can continue to provide critical representation in our courts, the Senate needs to restore funding in the private counsel compensation line item to the amount that the House funded them.  Without adequate funding for private bar advocates, we will likely face a crisis of the sort which occurred in 2005, when hundreds of people were jailed without counsel because of inadequate funding for CPCS.

We know, the Commonwealth is facing tough economic circumstances and these are difficult funding decisions but fulfilling Constitutional requirements is not a discretionary item.

Homestead Reform Legislation Is Way Overdue

It seems so easy — you buy a home, pay $35 and file a “Declaration of Homestead” to protect it from creditors up to the amounts set by law.  But it’s not so simple and it’s actually confusing.  While it seems like a no-brainer for any homeowner in Massachusetts, too many people fail to take advantage of this important benefit.

A quick survey of my friends revealed that some had never heard of a homestead declaration, and those that did had only a vague understanding of this rudimentary consumer protection tool.  The reason being is that the current law, Chapter 188 §§ 1-10 is ambiguous and unclear at best.

For several years now, the BBA has been working – along with the MBA and REBA – to update the Massachusetts Homestead Exemption.  This effort intensified during the BBA presidency of the late M. Ellen Carpenter, a bankruptcy lawyer, and is more important now than ever before.

Quite simply, a declaration of homestead is protection for the equity in your residence from most creditors up to $500,000 in the event you are sued.  The Homestead bill that is currently being considered by the legislature, S 2406, will modernize and clarify the existing law.  More importantly it will eliminate the requirement that an actual filing be necessary to ensure that a homeowner is protected.

If Homestead reform legislation is enacted, this important protection would be automatic — up to $125,000 for every Massachusetts homeowner. If you’ve filed a Declaration of Homestead that protection would go up to $500,000.

BBA leaders have testified on behalf of homestead legislation reform at numerous public hearings.  We continue to press our case with staff and legislators.  When legislation to update the homestead statute was taken up in the Senate chamber in late April, it was missing the essential automatic protection provision.  Senator Cynthia Creem filed an amendment to restore the automatic provision and the bill was engrossed.  It is now in House Ways and Means.

Looking ahead towards the last weeks of formal sessions, the legislature is still working on gambling, economic development, sentencing reform, and the state budget. The BBA will continue to persist in its advocacy efforts.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

CORI Reform Is Just a Start — Sentencing Reform Is a Must

The BBA retains a spirit of dogged optimism as we wait for sentencing reform.  With just three months left in this two year legislative session and the Senate preparing to release their budget in less than two weeks, the legislature is moving closer to meaningful sentencing reform.  There have been years of protests, legislative proposals and public hearings.  But the sad truth is that the current system makes it extremely difficult for former offenders to straighten out their lives.

Publicly the Governor, Senate President and House Speaker have all expressed their support for some sort of Criminal Offender Record Information (CORI) reform.  The Senate did so most recently in December with the passage of a CORI bill that also included sentencing law changes for non-violent drug offenders.  The word is that the House will act within the next two weeks.  Let’s hope that their proposal doesn’t stop at CORI reform and includes meaningful sentencing reform.

For more than 20 years the BBA has been studying and advocating on these issues and strongly believes that it’s time to finally make these measured changes a reality.  We have sponsored and encouraged thoughtful study of our criminal justice system recommending changes — including repeal of most mandatory sentencing laws.

In the present fiscal crisis, their adoption would have significantly positive economic and social impacts.  A combination of CORI and sentencing reform, plus post-release supervision, would accomplish cost-effective changes in our criminal justice system that enhance public safety, and facilitate offender re-entry and employment, while saving judicial and correctional resources for the most serious offenders.

Employers often use CORI reports to help screen out prospective job applicants. On one side of the debate are supporters of the current CORI law who say access is needed to protect employers from hiring someone who might be a liability to their business. On the other side of the debate are the critics who contend that the widespread use of CORI reports often prevent ex-convicts from starting over and that an individual who has already paid his or her debt to society should be given a second chance and would be less likely to re-offend if they did not have to overcome barriers to employment, housing and other services.

The CORI law was created to control the release of information concerning an individual’s prior criminal history.  Initially limited to law enforcement officials, the law has been expanded to provide access to other organizations, particularly those that service children, the elderly and the disabled.  Maintaining accurate CORI information is important, as these reports can include not only an individual’s prior convictions, but also any pending charges as well as cases that ended without a conviction. This can include cases where the individual was found not guilty, or the charges were dismissed.  We need to find the balance between access and disclosure.

Ex-offenders, including those who have successfully completed a term of imprisonment, must be encouraged to obtain and retain productive employment.  Employed ex-offenders are able to support and house themselves, rather than remain an economic burden to the Commonwealth.  Right now, those with minor or long dormant criminal records confront complicated hurdles due to the way CORI records are handled when the ex-offenders seek employment or housing.  The current system is confusing and complicated and some employers have access to criminal information while others don’t.

There seems to be support for some sort of CORI reform throughout the legislature. But CORI reform and sentencing reform must be viewed as interconnected parts of the solution.  CORI reform is not going to be as effective if inmates serve lengthy sentences that preclude access to re-entry opportunities.  Parole and work release eligibility for drug offenders would help transform appropriate candidates from expensive correctional burdens to contributing members of society.

Sensible sentencing reform must include post-release supervision, and a system of presumptive post-release supervision for all offenders incarcerated in state prison. It’s intelligent and fiscally responsible and would avoid the current practice in which offenders often are released directly to the community after serving the maximum term of their sentence, without any transitional period.

The Commonwealth is now experiencing the most severe fiscal crisis in decades and this provides us with an opportunity to enact responsible sentencing and CORI reform.  Simply put, every offender who makes a successful return to the community as a result of these measures will be one less financial burden to the taxpayers of this state, and our communities will be made safer in the process.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

Trusts, Estates, Adopted Children, and Unintended Consequences

We’ve all had experiences where intentions and results are not always the same thing.  Assuming good faith, laws sometimes have unintended consequences.

Last year, legislation dealing with adopted children and trust instruments was passed that became known as Chapter 524 of the Acts of 2008. At the Boston Bar Association, warning bells went off among our Trusts and Estates Section.

A bit of background. . . What once seemed like a benign piece of narrowly written legislation had been filed numerous times over the years – without garnering much attention.  Public hearings were held and the bill would sometimes make its way out of committee or be put into a study order for further review.

During the last legislative session, this same bill finally found its way to a different committee whose jurisdiction seemingly had nothing to do with trusts and estates law. Following a public hearing, this bill received a favorable report from the committee.  The bill made its way through the process and eventually got signed into law by the Governor.

This sounds fine, but almost 10 months after the public hearing and the committee’s action, the bill was amended to include a group of people I’d find it hard to believe were contemplated by the original bill.

Much to the dismay of trusts and estates practioners, the new law actually changed the clearly understood rule of construction that applied to terms like “child,” “grandchild” and “issue” in wills, trusts and similar instruments executed before August 26, 1958.  (In 1958, the Legislature modernized our law to presume that adopted persons are included in these terms unless the instrument plainly states otherwise, and made the law applicable only to instruments executed after its effective date.)

Caught by surprise, the trusts and estates bar and banks and other professional trustees were left scrambling to review all pre-1958 trusts to determine which ones were affected by this sweeping change.

After analyzing the substance and implications of Chapter 524, the BBA and others began to work on a repeal of this new law.  The best we could do in the short term was secure a postponement of its implementation until July 1, 2010.  While this was a small victory, the process has begun again.

The BBA and others are still working on this issue. Amendment 367, filed in the House budget, will not only repeal chapter 524 but also create a retroactive, blanket immunity for trustees who either acted (or failed to act) in relation to it.

In the midst of a week of potentially tough votes, legislators are contemplating almost 870 amendments dealing with spending, revenue and reform.  Let’s hope that Amendment 367 will be adopted.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

A Really Bad Sports Analogy: BBA Lobbying Marathon (of sorts) in DC

Washington, D.C. – Here for an American Bar Association lobbying day on Capitol Hill that will emphasize the need for federal funding of legal aid for poor people, I had an interesting conversation with a guy whose accent quickly gave him away as being from a state with elected judges and a reputation of “pay to play” justice. Realizing I was from Massachusetts, he seemed eager to talk about the Boston Marathon.  He knew a lot about the route, Heartbreak Hill, which he told me is actually just 4 rolling hills between mile 20 and 21.  He’s read a lot of books on what it takes to be successful running a marathon.  This brings me to his bad sports analogy.

Just as I was about to wish him good luck on his Hill visits , he said that one could equate preparing for and attending ABA Day in Washington to training for a marathon.  I had to hear him out.

A little background on my southwestern colleague’s DC visit compared to mine. . .  He’s spending 5 days in DC — with two full days before the two day meeting.  By contrast, the Massachusetts contingency is squeezing everything into one jam packed day (following a welcome dinner the evening before).  He says he spends his first two days walking the route between the Senate and Congressional office buildings.  He likes to scope out the public entrances and assess how crowded the doors are in the morning at the very time he would be arriving for his meetings.

As he said, marathoners do this too.  They read about the course, drive the course and some even run parts of the course during training.  I believe him.  He’s meeting with 3 members of his Congressional delegation tomorrow and three on Thursday.

We are meeting with 8 members of our delegation starting at 9:30 a.m. today. Our last meeting begins at 3:45.  Here’s hoping this gives us enough time to make our 6:30 p.m. flight back to Boston.  I’m already wondering if I’m going to remember which building is next to which and whether or not we have enough time to get from a 10:30 am meeting in Rayburn to a 11:00 am meeting in Longworth.

My colleague offered three comparisons between our lobbying day tomorrow and a marathon:

(1) Lobbying days and marathons are long and difficult.  I’m not so sure I’d describe the lobbying day as difficult per se. Exhausting yes but not difficult.

(2) Lobbying days and marathons require staying on the course.  Why run over 26 miles if you can’t stay on  course?  We intend to take full advantage of the time we have during our meetings to outline the importance of Legal Services Corporation.  So I won’t take the time to ask Mike Capuano what happened in the primary and to pull Scott Brown aside and ask him if he’s pinched himself yet.

(3) Lobbying days and marathons require breaks and staying hydrated.  I’m convinced we’re not going to have more than a quick lunch break tomorrow.  So I really hope the ABA provided boxed lunch will be the fuel we need to get through our afternoon meetings.

The marathon analogy is a great lesson on persistence and staying on course.  Marathons and ABA Day in DC are not for the weak or weary — no matter if you spread your meetings out over two full days or if you cram 8 meetings into a little more than 6 hours.  Being from Massachusetts we are lucky that our Congressional delegation has such a strong history of support for LSC. Legal Services Corporation is the nonprofit agency that receives and disburses congressional funding to legal aid organizations. The BBA’s Volunteer Lawyers Project is one of their beneficiaries and last year Massachusetts received over $6 million in funding from LSC.  We will be lobbying on two specific issues.  The first issue is the reauthorization for LSC.  LSC has been operating since 1981 without a renewed authorization and exists by virtue of its annual appropriation.  The second issue we are looking for support is for a $20 million increase for LSC.

While our approach to the effort may resemble more of a full sprint than a marathon we will work hard to urge Congress to support legal aid.

– Kathleen Joyce

The House Ways and Means Budget Is Out. Now What?

We have our work cut out for us. While casino gambling dominates the headlines and a veto-proof Casino bill moves to the Senate, the House prepares to debate the $27.8 billion budget released by House Ways & Means Chairman Charley Murphy yesterday. That debate is scheduled to begin on Monday April 26th.

Here’s what worries us. As a report released last month by the Boston Bar Association Task Force on the FY2011 Judiciary Budget, our courts are operating on the margins. And as Joan Lukey, the Chair of that Task Force told Neighborhood Network News’ Chris Lovett a few weeks ago, we hope it doesn’t take a tragedy to demonstrate the need for adequate funding of our state courts. Needless to say, what’s at stake is nothing less than public safety and timely access to justice for everyone – including a lot of people in dire straits.

The budget released yesterday provides cold comfort for our state courts. Alas the Massachusetts Trial Court budget took a hit to the tune of $36.7 million. Given the court’s maintenance request of $565.8 million, the House Ways & Means proposed budget of $529.1 million will undoubtedly curtail access to justice at a time when the Commonwealth can least afford it.

We certainly appreciate the fact that House Ways & Means remains dedicated to the importance of civil legal aid for poor people – allocating $9.5 million (level funding) to the line item for the Massachusetts Legal Assistance Corporation – we need to continue to remind the Senate of the importance of level funding for legal aid. Just in case you’ve been out of the loop, the need for legal aid has increased as legal resources have plummeted.

While MLAC and also District Attorneys’ offices were level funded, the Committee for Public Counsel Services was funded at $192 million, or about $18 million less than their request for Fiscal Year 2011.

We will continue to keep a watchful eye on activities in the House while working to press the importance of adequate funding for state courts, civil legal aid, and CPCS in the Senate.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association