Monthly Archives: August 2010

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

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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

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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

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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

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