Tag Archives: BBA

The Spirit of Boston

Boston Mayor Martin J. Walsh made “spirit” the focal point of his speech at the Greater Boston Chamber of Commerce’s Government Affairs Forum this week.  Just over 100 days into his tenure as Mayor, he spoke with pride and awe about serving as one of Boston’s chief public servants.

He described his four priorities:

Strengthening our economy and creating jobs,

Improving public safety and stopping gun violence

Ensuring our public schools help every child succeed, and,

Increasing trust and transparency in city government.

He also talked about some of the challenges he’s faced in his first few months – the tragic loss of a child to gun violence, the loss of two firefighters in the Beacon Street fire, and a Boston police officer who died on duty.

Mayor Walsh emphasized the importance of getting more summer jobs for Boston’s youth.  He asked every business in the room to hire a Boston public school student for the summer in order to provide meaningful opportunities for our city’s young people.  There are often young people that do not have someone at home to guide and direct them, and Boston businesses can make the difference in a young person’s life.  Mayor Walsh stressed that we need to have our next generation of Boston’s leaders reflect the diversity of the city.  While recognizing the many Boston businesses that have already supported the summer jobs program, he talked about the importance of continuing the atmosphere of business and city collaboration.  We are honored to assist law firms in facilitating their participation in this program.

Mayor Walsh envisions changes in City Hall that will support business, including increasing certainty and transparency.  He hopes to give everyone a seat at the table by opening up regulation processes so that the city will be more partner than adversary.  He touted development through ongoing construction projects in downtown Boston and surrounding communities as well as increasing the use of advanced technology, spearheaded by the city’s newest position, Chief Digital Officer.

Finally, the new Mayor ended his speech by telling the stories of three Boston companies:

  • Liberty Mutual – started in Boston by three people looking to pool their insurance costs and now employs more than 50,000
  • Wayfair.com – founded in a South End apartment and now an online furniture company valued at more than $1 billion
  • The yet-to-be-formed company – it exists as only as an idea in the minds of a group of college students in the Boston area.  They need access to capital, a pool of smart and talented employees, world class infrastructure, housing options, and a productive partner in city hall to succeed –

The spirit of Boston is what makes these stories possible and the commitment to progress that will make them endure.

Our members infuse the BBA with the impressive spirit of the Boston legal community.  They provide constant reminders of why the city is a paragon of ethical practice, innovative litigation, and charitable giving both in money and service by firms, corporations, and practitioners devoted to their communities.

We look forward to serving the legal community and promoting its continued evolution to meet the needs of these businesses and contribute to our dynamic, thriving city.

– Kathleen Joyce
Government Relations Director
Boston Bar Association
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13 for ’13

As 2013 draws to a close, here’s a timeline of 13 things we’re thankful for this year.

1) Diversity.  We tried to live up to our illustrious history of diversity and inclusion this year at the BBA.  From amicus briefs defending marriage equality and affirmative action to the Beacon Award, we reasserted our commitment to expanding fairness for all.  This year we released our Diversity and Inclusion Timeline highlighting key events in our history that helped shape our community. 

2) Taking it to the Top.  We started the year off right by advocating for trial court funding with the head of the executive branch, Governor Deval Patrick.  For the first time we sat down and spoke directly to Governor Patrick and his legal staff about this important issue. 

3) Walk to the Hill.  In late January, we proudly participated in the 14th annual Walk to the Hill with 650 lawyers.  Our members used their advocacy skills by speaking to legislators and staffers on the impact civil legal aid funding has in Massachusetts.  We  helped secure $13 million in civil legal aid funding for Fiscal Year 2014.  Please join us for Walk to the Hill 2014, scheduled for Thursday, January 30th.  We hope you’ll join us.  (More information here and here)

4) Protecting Attorney Ethics Consultations.  We were pleased that the SJC ruling reflected a lot of the same thinking as our amicus brief in RFF Family Partnership v. Burns & Levinson, by applying attorney-client privilege to a lawyer’s consultation with in-house ethics counsel.  This issue was an important one for all of our members who practice in law firms, large or small, and for their clients.  The ruling gives lawyers the requisite peace of mind to consult in-house ethics counsel to make sure they act in accordance with the state’s ethics and professional conduct guidelines.

5) Some Clarity on Decanting.  We sought guidance through an amicus brief in Richard Morse, Trustee v. Jonathan A. Kraft et al. This case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees.  The SJC ruled favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

6) BBA Statewide Task Force.  In April, we created the Boston Bar Association Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  Chaired by past-president J.D. Smeallie, the Task Force features 27 diverse leaders in the state’s legal community from law firms, in-house counsels, academia, the judiciary, legislative, and executive branches, and legal services organizations.  The Task Force is making significant progress in quantifying and assessing both the civil legal aid services currently provided in the state and the needs not being met.

7) Legal Services Discussion.  Jim Sandman, President of the Legal Services Corporation (LSC) joined us at the BBA over the summer to talk about the current state of LSC funding, reinforcing the need for bi-partisan support and the importance of connecting with the business community. President Sandman emphasized that legal services is not a social safety net or a poverty relief program.  Legal services are necessary to ensure access to justice for all 

8) Defense of Marriage Equality.  This summer, we celebrated the Supreme Court’s rulings upholding marriage equality in the cases of U.S. v. Windsor and Hollingsworth v. Perry.  Reaffirming our longstanding advocacy efforts for marriage equality, we joined a coalition of other bar associations, civil and human rights groups, and public interest and legal services organizations that signed onto the briefs.  (Read the briefs here and here)

9) Amending the UCC.  On July 1st, Governor Patrick signed into law “An Act making amendments to the uniform commercial code covering general provisions, documents of title and secured transactions.”  We collaborated with the Massachusetts Bar Association and the Massachusetts Bankers Association to get this bill before the House and Senate for their final approval.  While this law didn’t make big news, it will remove needless obstacles that small businesses run into when trying to secure credit.

10) Paula Carey named Chief Justice of the Trial Court.  We cheered when Paula Carey, former Chief Justice of the Probate and Family Court began her post as Chief Justice of the Trial Court this summer.  We look forward to working with her and Court Administrator Harry Spence as the trial court implements its strategic plan.   

11) Judicial Pay Raise.  At long last, the legislature passed a judicial pay raise – an essential step to continuing providing the high quality justice residents of Massachusetts expect and deserve.  Before this legislation, Massachusetts ranked 48th in the nation in judicial compensation. 

The $30,000 raise will take effect in two equal installments; the first increase will be effective January 1, 2014 and the second increase will be effective July 1, 2014. 

12) A Step in the Right Direction for Mandatory Minimum Sentences.  In August, U.S. Attorney General Eric Holder unveiled a Justice Department proposal to reduce mandatory minimum sentences for nonviolent drug offenses, something that the BBA continues to work on at the state level.  Repealing mandatory minimum sentences for low-level drug offenses is sensible, fiscally responsible, and more protective of public safety.  Repealing mandatory minimum sentences also returns to judges the discretion they need to dispense fair and effective justice.

13) Juvenile Justice.  This summer, the state enacted “An Act expanding juvenile jurisdiction.”  This law, raising the age of jurisdiction for juvenile courts from 17 to 18 years old, was unanimously supported by the BBA Council.  The change moved Massachusetts in line with the majority of other states and, according to researchers, will give minors a greater chance of becoming productive members of society.

2013 was a significant year.  Here’s looking ahead to a great 2014!  Happy holidays!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Significance of Pro Bono Service

Pro bono is an important part of every lawyer’s career, so when a judicial candidate’s pro bono work came into question at a recent Governor’s Council hearing, we took issue.  An attorney’s commitment to pro bono should be applauded and not criticized.  Some would say attorneys have a professional obligation to do pro bono work because upholding fairness, credibility and impartiality of our justice system is the right thing to do, especially for those who cannot otherwise afford an attorney. 

Lawyers have a unique skill set and knowledge of our justice system that can be used to provide access to justice for those who might not otherwise have it in both the civil and criminal arenas.  This sometimes means representing unpopular clients or causes, regardless of the allegations.  It can also mean filing an amicus brief involving vital legal principles, without regard to the political climate.

As the great Justice Felix Frankfurter once said, “it is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.” Lawyers, often providing their skills on a pro bono basis, ensure the integrity of the adversarial process.  The BBA’s first president, John Adams, gained a certain degree of notoriety and, eventually, the utmost respect, for his work defending British soldiers charged with the murder of patriots at the Boston Massacre. 

The BBA is proud to bestow awards on lawyers performing pro bono service, and is especially cognizant of the fact that advocating on behalf of the criminally accused or people on the margins of society requiring assistance with homelessness, mental illness, and Social Security may be misunderstood in quarters outside bar associations, making these attorneys the targets of criticism.  Unfortunately, some people confuse the preservation of individual rights with advocacy for a political cause, but the bottom line is that acccess to justice for all is one of the pillars of our justice system and of our democracy.  Lawyers should not be confused with their clients, and pro bono work should not be a mark of shame for any lawyer, and should never disqualify a nominee from judicial service.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Participating in the Process Means Commenting on SJC Rules Changes

The Massachusetts Supreme Judicial Court, the highest appellate court in Massachusetts, renders about 200 written decisions each year and the single justices decide another 600 more cases.  The SJC has general superintendence powers over the judiciary and the bar, and in certain cases will provide advisory opinions to the Governor and the General Court.  The SJC also promulgates rules for the operations of all the state courts.

Court rules are so numerous that in order to effectively review them, the SJC has put together several committees to examine issues and proposals that effect court rules.  Two of them – the Standing Advisory Committee on Rules of Civil Procedure and the Standing Advisory Committee on the Rules of Criminal Procedure – are currently reviewing rules and report to the SJC’s Rules Committee.  This is where the BBA comes in.

Feedback from the bar on the practical implications of rules changes is important.  And our Sections provide a useful vehicle in which to discuss proposed amendments or changes to such things like procedural rules.

The BBA’s comments to the courts reflect our membership and their various practice areas.  Two recent examples of comments submitted to the SJC are the Criminal Law Section’s comment on the Model Jury Instructions and the proposed amendments to Rule 12 and 29 of the Massachusetts Rules of Criminal Procedure.

Our Criminal Law Section has over 600 members and its Steering Committee is a group of 30 attorneys including both prosecutors and defense counsel with a wide range of criminal law practices.  This means that veteran criminal law attorneys get an opportunity to review rule changes and provide comments, suggestions, feedback and at times even anecdotes from their own experiences to the SJC.

The BBA process that resulted in comments to the SJC on the proposed amendments to Rule 12 and 29 included discussion at a steering committee meeting several months ago.  Input was solicited from other veteran criminal lawyers in the district courts.  After discussion at the Steering Committee, the comments were synthesized into one document that was sent over to the SJC on Monday.

Consensus isn’t the goal – and often not possible – when we provide comments to the courts.  What we are really trying to provide to the courts are practical recommendations that will assist in adding clarity to proposed amendments or rules changes.

As often happens in the Criminal Law Section there are areas of agreement and areas where there will most likely never be agreement.  However, the reasoning and the explanations for such differing views is still very useful the courts.

The Standing Advisory Committee will review all comments pertaining to the issues raised by their proposed changes to Rule 12 and 29.  Ultimately the Committee will make a recommendation to the SJC.  Thanks to our members’ hard work and professional expertise the BBA had an opportunity to play an important role in the process.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Judiciary Committee Year in Review

With the start of the 2nd half of the 187th Massachusetts Legislative Session set to begin on January 4th, the BBA is still advocating for several bills in the waning days of the informal session.  Back in January 2011, the BBA was the lead sponsor for 17 bills and a co-sponsor of a handful of other bills. Just about all of our bills were referred to the Judiciary Committee.

Overall, 5,388 bills were filed at the beginning of this session. Roughly 900 of those bills were referred to the Judiciary Committee.  This constitutes over 15% of all bills filed in the Legislature and gives the Judiciary Committee the distinction of having the highest volume of non-budgetary legislation referred to any committee.  To put this in perspective, the Public Service Committee has the next biggest number of bills at just over 600.  Not surprisingly, issues concerning the state courts, criminal procedure and penalties, torts, privacy, real estate, probate and judicial management end up in Judiciary.

Admittedly, not all of the 900 bills are unique.  Some of the bills are the same piece of legislation just filed separately in each branch.  For instance, the BBA often tries to find both a House and Senate sponsor of its bills especially if the issue at hand is one that may require leadership in both branches.

Since public hearings began in March, the Judiciary Committee has held eleven hearings.  These take place in small hearing rooms or in the larger Gardner Auditorium and are always well attended.  The Judiciary Committee hearings last for hours, often late into the night.  These hearings are packed with lawmakers and members of the public. The BBA has experienced this firsthand.  We patiently waited several hours for our turn to testify in Gardner Auditorium twice this year and in the smaller hearing rooms several other times this session.

Here are just some examples of bills for which the BBA has advocated this session and which already received a favorable report from the Judiciary Committee:

  • Alimony reform was released from the committee and signed into law on September 26th and will become effective on March 1, 2012.
  • Transgender civil rights will go into effect in the Commonwealth on July 1, 2012.
  • A major court reform bill that included a provision to keep the Probation Department in the Judicial Branch as well as providing for the hiring of a professionally trained, non-judicial court administrator was signed by the Governor on August 4th and will become law on July 1, 2012.

Now that those three bills have already been signed into law, the Judiciary Committee can begin focusing on other equally important bills.

Some of the other bills that have been released from the Judiciary Committee thus far but that have not made their way to the Governor’s desk just yet include the BBA’s access to DNA bill, the Uniform Trust Code and the corrections to the MUPC.  Elsewhere in the Legislature, budget requests are being reviewed and budget priorities are beginning to take shape.  When formal session resumes in a few weeks, there will be more public hearings, meetings with lawmakers and other opportunities to advance our agenda.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Let’s Not Revisit the Tax on Legal Services

The new Tax Expenditure Commission, created by Outside Section 160 of the FY12 budget and chaired by Secretary of Administration and Finance Jay Gonzalez, will meet regularly over the next six months to study the Commonwealth’s $24 billion tax expenditure budget.  The process includes reviewing all tax breaks, tax credits, sales tax exemptions and corporate deductions in an effort to measure the effectiveness of these carve-outs.  The recommendations of the Tax Expenditure Commission are due by April 30, 2012.

In addition to reviewing the current tax expenditure budget, the Commission has been charged with issuing recommendations regarding any changes to the current tax expenditures and criteria for new tax expenditures.  Since there has been no increase in broad-based taxes since the sales tax hike in fiscal year 2009, this could potentially mean a renewed interest in adopting a tax on legal and other professional services.

This would not be the first time Massachusetts has experimented with the misguided idea of instituting a tax on legal services.  The idea of a services tax was first proposed in 1975 but ultimately not adopted by the legislature.  Soon after, a coalition in favor of the tax sought to have a referendum put on the ballot.  In conjunction with other professional groups, the BBA launched a campaign to educate the public about the economic effects of such a tax – that clients, rather than firms, would absorb the overwhelming majority of the burden.  A legal services tax would fall disproportionately on those least able to afford legal representation, thereby limiting access to justice.

In the early 1990’s the issue came to a head when a sales tax on legal services actually passed in the state legislature and was signed into law.  Amid revelations that this tax would apply not just to services  provided by attorneys, accountants and other professionals — but also to such services as lawn mowing and snow plowing — support for repealing the tax increased.  The BBA, joined by the MBA, mobilized its members and focused its efforts on informing the legislature and incoming Governor Weld of the economic and legal flaws in a services tax.  Groups representing other segments of the professional community worked on this too and, two days after the tax took effect, Governor Weld signed legislation repealing the services tax.

Of primary concern for the BBA is the constitutionality of such a proposal.  The right to obtain the services of an attorney is a natural right guaranteed by the United States Constitution and is immune from the imposition of an excise tax.

There are also other compelling arguments to be made against a legal services tax.  A sales tax would compromise the attorney-client relationship by requiring an attorney to act as a tax collector and submit sensitive client information to the Department of Revenue.   Rather than serving as an advocate in a confidential relationship, an attorney would be forced to share privileged information with third parties.

We’ll watch closely now as the Tax Expenditure Commission continues to meet.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Inadequate Funding Threatens Delivery of Justice in MA

When the BBA speaks publicly about the state budget, we are generally talking about funding that impacts the Massachusetts legal system.  Specifically, that means advocating for funding for: the Committee for Public Counsel Services (CPCS), District Attorneys’ offices, legal services and the Judiciary.  It is incumbent on us – the private bar – to ensure that these four groups receive the resources necessary to function properly.  The BBA advocates annually for these groups and, lately, our advocacy efforts have continued year-round.

The demand on the legal system has never been greater.  At a time when governments are forced to slash budgets, more people who depend on public services are being turned away.  The legal system is often a place of last resort where people exercise their constitutional rights to seek relief in areas of housing, children’s services, employment matters, etc.  All across the board – from public defenders to prosecutors, from legal service attorneys to the courts – the legal system has suffered heavy losses in resources while trying to stay on top of rising caseloads.

Here’s why we need these four areas of the state budget adequately funded:

The right to appointed counsel for indigent persons is fundamental under our federal and state constitutions.  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 the number of cases that are assigned to the public and private divisions of CPCS by Massachusetts courts.

In line with our commitment to the right to counsel is our commitment to ample funding for the prosecutors’ offices that seek justice in every case.  Without adequate funding for the state’s eleven district attorneys’ offices the effective prosecution of crime in Massachusetts would surely be compromised.

State funding for civil legal services is, in part, appropriated through the Massachusetts Legal Assistance Corporation (MLAC) line item.  MLAC is the largest funding source for civil legal aid programs in the Commonwealth, funding 17 legal aid programs that provide information, advice and representation to low-income people with critical, non-criminal legal problems.  Though MLAC also receives money from IOLTA revenue, the decline in real estate transactions – the largest contributors to IOLTA accounts – has caused this source of revenue to fall dramatically.

At the core of our legal system is the Judiciary, without which justice simply could not prevail.  As a separate branch of the government, the Judiciary is fully dependent on tax dollars for its operation.  The Massachusetts state courts are funded through state budget appropriations.  Today, the Governor signed a supplemental budget that provides some additional money to our woefully underfunded courts. But it’s still not enough.  The additional funding gives the courts some relief from the mounting pressure to do more with less.  It is welcome news to those who have become accustomed to budgetary disappointment.

-Kathleen Joyce
Director of Government Relations
Boston Bar Association
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