Tag Archives: lawyer

Legal Services Corporation Needs a Lifeline

This week BBA President Lisa Goodheart sent a letter to Senator John Kerry and the rest of the Massachusetts Congressional Delegation requesting support and protection for the funding of the Legal Services Corporation (LSC).  As written about before on Issue Spot, support for legal services is a core part of the BBA’s mission and is a vital service to some of the most vulnerable people in society.

Funding for civil legal assistance in Massachusetts is a partnership between federal, state and local governments as well as private attorneys and foundations.  The current economic climate has led to a substantial drop in resources for LSC programs due to both a 50 percent decrease in IOLTA revenue over the past two years and budgetary constraints among state and private contributors. All this comes at a time of unprecedented need – more than 1 in 5 Americans now qualify for legal assistance.

Legal services funding is not merely a spending issue.  LSC-funded programs in Massachusetts provide critical legal services to individuals who need it most, including victims of domestic violence, veterans returning from combat, those coping with the after-effects of natural disasters, persons with disabilities, and individuals undergoing foreclosures and evictions.  LSC funds four programs in Massachusetts – the Volunteer Lawyers Project of the Boston Bar Association, the Massachusetts Justice Project, Merrimack Valley North Shore Legal Services and the New Center for Legal Advocacy – all of whom have already absorbed massive cuts to their budgets and staff.

Why is LSC funding in jeopardy now?  It all goes back to August when Congress, reaching a last-minute compromise on the debt ceiling crisis, established the Joint Select Committee on Deficit Reduction.  The Committee is made up of 12 lawmakers – including Massachusetts Senator John Kerry – who have been tasked with finding $1.2 trillion in budget savings by November 23rd.  If the Committee is unable to come up with the necessary savings, the difference will be made up by automatic spending cuts, divided evenly among domestic and defense programs.

Senator John Kerry and, in general, the Massachusetts Congressional Delegation have been supportive of legal services.  They understand that legal aid attorneys provide meaningful representation to people who have no place else to turn.  Despite the presence in Congress of legal aid advocates who appreciate the importance of legal services, the fiscal situation before the Committee is daunting.  Funding cuts threaten to adversely impact our neighbors, friends, families, and communities.  We need to do everything we can to ensure that the citizens of Massachusetts are able to receive the legal assistance they need.

 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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Practictioners’ Perspectives on the Alimony Reform Act

With the Alimony Reform Act of 2011 poised for passage, we thought we’d ask some of our members to share their reactions on the coming changes.  Here are the independent thoughts of the expert family law practitioners we canvassed:

Nan Elder – Bowman Moos & Elder, LLP

I think the principle benefit of the impending statutory change lies in the fact that it provides some scaffolding around which alimony awards can be negotiated and structured.  But the amount is only “some,” and the structure only “scaffolding” because the legislation also provides significant opportunity for deviation and modification – the exercise of judicial discretion – and it will take some years and quite a bit of litigation and appellate work to better clarify the full structural outlines.  For shorter term marriages, it may provide more guidance and definition sooner, and thus enable more ready resolution of them.   Longer term marriages will, however, quite probably still raise significant issues regarding its application.  This will be especially true in both new divorces and modifications for those “traditional” cases where one spouse has been the primary wage or salary earner and the other the caretaker and homemaker, often in expectation of, reliance on, and even with the express understanding between spouses of, the indefinite continuation of this family model.

As with any change of such magnitude, the transition will be arduous in a number of respects.   For litigants, it presents both an opportunity for relief and resolution for some and a source of reopening of wounds and the burdensome expense of extended or renewed litigation for others.  For lawyers, it presents an opportunity for some really creative thinking and lawyering, as well as for providing a framework for advising clients – but cynics might also suggest it presents an unexpected or unwarranted bonanza of new work.  For the courts, its implementation risks further burdening an already broken system.  Although the legislation staggers the availability of modifications of alimony judgments predating its effective date in March 2012, most practitioners I’ve talked with expect a flood of requests in addition to the uncertainty and litigation that will inevitably ensue as the statutory structure is fleshed out.

While the transition and implementation may well be both lengthy and rocky, the end result will hopefully provide some measure of clarity, if not certainty, especially for shorter term marriages.

Jennifer Rivera-Ulwick – Middlesex Probate & Family Court

The benefit of the proposed changes is the potential sense of predictability and consistency in determining alimony which will allow people to resolve this issue without seeking court intervention at the trial level.   Like the Child Support Guidelines, the law will provide a roadmap of sorts in formulating the appropriate alimony award, if any, based on the circumstances of the parties.  Given the new scheme for setting the duration, amount and form of alimony awards, I anticipate not only a decrease in the number of cases tried over alimony but also an increase in modifications being filed with the court to adjust prior alimony orders in accordance with the new legislation.  The roll-out dates, which determine when a modification may be filed as a result of the change in the law, will initially help relieve the courts from being overburdened with modification filings although the number of filings may depend in part on the level of awareness of the changes on the part of alimony obligors which is sure to increase each year after the law becomes effective.

Anita Robboy – Prince, Lobel & Tye, LLP

Massachusetts is long overdue for a critical look at Section 34 as our Commonwealth is very much out of line with nearly every state in the duration of alimony awards.  The Bill has clear guidelines regarding expected points of termination.  The major change will be that attorneys can no longer state that a Probate and Family Court judge lacks the power to terminate alimony.  The Bill specifically enables judges to limit the duration of alimony and to amend prior judgments that had no termination point.  The interplay between alimony awards, if any, and the division of assets is forever altered.  The recipient of alimony has lost an important ‘chit’: the value of future alimony.  The payor can rely on obtaining termination upon the happening of certain events, such as age, the length of alimony already received in relation to the marriage, and cohabitation.  Counsel must now advise clients that alimony comes, if at all, in a variety of flavors.  It will be important to strategize which form of alimony is applicable and/or most advantageous.

John Fiske – Healy, Fiske, Richmond & Matthew

As a mediator, I see the greatest benefit of the alimony bill as analogous to the Child Support Guidelines: it gives clients a good idea of what a court would do without their having to go to court.  In my 32 years of mediating divorces, the uncertainty of the length of alimony has been the most challenging obstacle for many husbands and wives.

I will tell [my clients] I want them to make informed choices, and to read the law, or any available summary of the law including my own, to get an idea of what a court would do before they choose their own solution.  The outcome of many of my cases would not be very different [had the reforms been in place previously], but the process of getting there will be more efficient. The outcome in some of my cases will be different, probably reducing the number of cases where clients define alimony for a certain period and then agree to leave open the question of whether to continue alimony in some amount after that date.  This law will be beneficial to just about everybody: clients, children, lawyers, mediators, judges, probation officers and financial planners for example.

-Michael Bouton

Government Relations Department

Boston Bar Association

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Here Comes the House Budget. . . Now What?

When all is said and done, what is the cost of trying to provide access to justice for all?

Next Wednesday, April 13th, the Massachusetts House of Representatives will release its version of the state budget.  The budget is much more than a list of dollar figures for particular programs. Rather it’s actually a reflection of decisions that help frame the values and priorities for the state.  The decisions reflected in the state budget affect the everyday lives of Massachusetts residents and have a strong bearing on the quality of education in Massachusetts, the level of health care services, safety of communities and so much more.

The budget is the most important bill to move through the Legislature each year.  The BBA has been working for months to advocate for level funding for legal services and the state courts while continuing to urge adequate funding for CPCS and the District Attorneys as well. To be an effective advocate, it is important to understand how and when to make an impact on the process, and ultimately the outcome.  This means knowing what to look for when the budget is posted online next week and how to respond.

Our 3 step state budget review process is:

1) Check the line items for the specific accounts the BBA has been working on.  For example, we are hoping to see that the Massachusetts Legal Assistance Corporation line item 0321-1600 will be level funded at $9.5 million.

2) Check the language of the line items for any earmarks.  Earmarks sometimes appear in a budget item and direct a portion of the money to a particular program.

3) Read the outside sections.  These sections often affect appropriations in the budget or contain policy that would make permanent changes in the General Laws.

The BBA has been anticipating the release of the budget.  For the past two months, we have been campaigning alongside our partners at the Equal Justice Coalition for adequate funding for legal services.  We have been working closely with the Judiciary to determine how best we can help them make their case that adequate funding for the courts is essential to everyone in Massachusetts.  BBA sections have reviewed and studied the proposal relative to the Probation Department and CPCS that was included in the Governor’s budget.  We know that the Governor’s transfer of CPCS to the Executive Branch means those line items have been stricken from the Judiciary accounts.  But public statements from the Speaker indicate the House budget will keep CPCS in the Judiciary.

 No, we’re not done.  Once the House budget is released, we will analyze the priorities articulated and develop an appropriate response.  For the BBA to make an impact on the budget process we have an obligation to speak up in support of our partners and serve as a resource for the growing number of legislators who are not as familiar with some of these issues as they might like.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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D-Day for DOMA

Yesterday’s decision by President Obama to no longer defend the constitutionality of a portion of the Defense of Marriage Act (“DOMA”) came as a surprise.  The U.S. Department of Justice (“DOJ”) determined that DOMA is unconstitutional , an argument that Massachusetts Attorney General Martha Coakley has used in the Massachusetts lawsuit challenging the law that bars federal recognition of same-sex marriages.

Currently, there are DOMA cases pending in the First Circuit Court of Federal Appeals.  Both the Gay & Lesbian Advocates & Defenders (“GLAD”) and the Massachusetts Attorney General’s office have succeeded in the Federal District Court challenging DOMA, and the DOJ has appealed.  The lawsuits argue, among other things, that the federal definitions of “marriage” and “spouse” are sexual orientation based classifications that should be found unconstitutional.

The DOJ’s new refusal to defend DOMA does not mean this litigation will go away.  It simply means that the DOJ will not stand in any of the DOMA cases.  A little-known statute, 28 USC 530D, declares that if the DOJ decides not to defend a case, notice must be given to Congress.  Congress then has the right to appoint its own attorney to intervene and defend the law.  With no clear guidelines as to the application of this statute, it’s hard to predict how Congress will respond.

A look at our recent involvement reveals the BBA has been active on issues of discrimination, civil rights and same-sex marriage.  Here’s a brief timeline of how the BBA has participated in this debate in the past.

  • In October 2002, the BBA filed an independent amicus brief in support of the plaintiffs in Goodridge v. Dept. of Public Health arguing that denying them civil marriage licenses violated the Massachusetts Constitution.
  • In October 2003, the BBA Council voted unanimously to support legislation that would allow for same-sex marriages in Massachusetts.
  • In December 2003, the BBA Council voted unanimously to sign the following resolution stating clearly the BBA position on the issue:

“We, the BBA, unequivocally support the ruling of the Supreme Judicial Court of Massachusetts in Goodridge v. Dept. of Public Health, to stop denying same-sex couples access to civil marriage licenses and all of the protections and responsibilities conferred by legal marriage. The government should treat all people equally and fairly under the law. We also unequivocally oppose any attempt to change the constitution of Massachusetts in order to discriminate against same-sex couples.”

  • In 2004, the BBA testified before the Massachusetts legislature in opposition to a bill that would have defined marriage as a union between a man and a woman.
  • In January 2005, the BBA Council voted unanimously to draft an independent BBA amicus brief supporting GLAD’s position in the Cote-Whiteacre v. Dept. of Pub Health case arguing that the 1913 statute, which prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state, is unconstitutional.

As an organization that supports civil rights for all, the BBA will keep an eye on Congress in the coming weeks.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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The Jury’s Still Out on the Governor’s Council

Governor Patrick has an opportunity to leave a huge mark on the Massachusetts Judiciary due to the large number of recently announced judicial openings.  The recent announcement of Associate Justice Judith Cowin’s retirement adds to the list of appointments for the governor, a list that includes positions on the Supreme Judicial Court, Superior Court, and the district courts.

With the prospect of all these new appointments, the role of the Governor’s Council has become the topic of much debate.  The Boston Globe and Massachusetts Lawyers Weekly (subscription necessary) both ran opinion pieces focusing on recent contentious judicial nominating hearings and questioning the need for the Governor’s Council.

Senator Brian Joyce has even introduced legislation to abolish the Governor’s Council all together.  Abolishing the Council isn’t as straightforward as getting the Legislature to support the bill, it would actually require an amendment to the state Constitution.  Here’s a little background on the judicial nominating process.

The current judicial nominating system begins with a confidential application process reviewed by the 21 member Judicial Nominating Committee (“JNC”).  The JNC recommends several candidates for judicial vacancies to the governor.  The governor will then forward his one nomination on to the Governor’s Council.  The Governor’s Council is a constitutionally required body established in 1624.  However, the question posed by the aforementioned op-ed pieces is this:  Is the extra layer of scrutiny even necessary?

The BBA is fortunate enough to have had several volunteer leaders go on to be nominated for judicial posts throughout Massachusetts.  The BBA is interested in having competent and qualified judicial candidates serve as judges and we hope that good candidates will not be scared off by the negative overtones of recent hearings.

The BBA is thrilled that former BBA President Ned Leibensperger has been confirmed to the position of Associate Justice of the Superior Court.  Despite the criticism of the process, it is still encouraging to see such worthy candidates promoted to the bench.

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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More Relief for Consumers

More good news! An update increasing the dollar amounts for bankruptcy exemptions in Massachusetts made its way to the Governor Patrick’s desk just before New Years Eve. Even though January 5th marked the end of the 2009-2010 session, the governor still has 10 full days to act on the bills on his desk.  Any bill that goes without action for more than 10 days will receive a so-called pocket veto.  Today is day 7.

As Issue Spot noted just weeks ago, personal property exemptions have long been in desperate need of modernization.  According to the Massachusetts statute, MGL Chapter 235, section 34 —last updated more than 30 years ago — the intent of the original law was to balance the legal rights of creditors against a debtor’s need for basic necessities in order to maintain a home and earn a living. 

The present law exempts from seizure things like 2 cows, 12 sheep, 2 swine and 4 tons of hay, and this is almost laughable in the context of how most people earn their livings or look for employment in 2011. Updating this law would increase the value of property, earnings and savings exempt from seizure during debt collection, and also permit debtors to keep computers. As families and communities continue to struggle with the impact of the economic downturn, the process of debt collection needs to change to one that is fair, at the same time facilitating the ability of debtors to fulfill their obligations.

The BBA had filed a bill several years ago that would update exemptions. Not surprisingly many bankruptcy attorneys eventually came to view the dollar amounts in that original bill as obsolete. During the summer of 2010 the BBA’s Bankruptcy Public Policy Committee identified key exemptions in our draft that could be revised to better reflect the needs of today’s household.  It was their work this summer which really brought this issue into focus for us and kept it on our radar in the final days of session. 

The BBA’s Bankruptcy Public Policy Committee had urged us to work with the National Consumer Law Center, and to adopt the exemption amounts that were in the NCLC’s bill.  As we revised our own bill we learned that the NCLC’s bill had already made enormous progress.  Working with NCLC on this issue proved to be successful. 

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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It’s That Time of Year Again

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

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

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

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

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

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

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

-Kathleen Joyce

Government Relations Director

Boston Bar Association

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