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MBA Amicus Curiae Brief Policy

Appropriate Cases

1. It shall be the general policy of the Massachusetts Bar Association to authorize the filing of briefs amicus curiae only at the appellate level unless special circumstances dictate otherwise.

2. Briefs amicus curiae shall only be authorized when such a brief would constitute a significant contribution to the determination of the issue or issues involved and only when the position sought to be advanced:

a. Is consistent with adopted policy of the association; or
b. Is of special significance to lawyers or the legal profession; or
c. Concerns the effectiveness or accessibility of the legal system; or
d. Concerns a matter of compelling public interest.

Amicus Curiae Committee

Article VII of the MBA By-Laws shall be amended to substitute the following for the current Section 3.  The existing Section 3 would become Section 4.

Section 3.  Amicus Curiae Committee. There shall be an Amicus Curiae Committee which shall consist of the General Counsel, a representative from each of the following section councils to be chosen by Section Council Chairs annually: Access to Justice, Business Law, Civil Litigation, Criminal Justice, Family Law, Individual Rights and Responsibilities, Judicial Administration, Labor and Employment, Probate Law, Property Law and Public Law; the President-elect; a representative from the Appellate Bench-Bar Committee, chosen each year by the President; and two members appointed each year by the then President for two year terms.  The committee will operate in accordance with the MBA Amicus Curiae Brief Policy as adopted by and as amended from time to time by the House of Delegates.]

  1. Pursuant to Article VII of the MBA By-Laws, there shall be a standing Amicus Committee, which shall review all requests for amicus curiae participation by the MBA and provide a recommendation to the House of Delegates. The House of Delegates shall make the ultimate decision on whether the MBA shall file an amicus curiae brief.
  2. Necessity of Amicus Brief. The Amicus Curiae Committee will consider whether briefs already before the court adequately present the view of the MBA on the issue.
  3. Brief Standards. The Amicus Curiae Committee shall ensure an amicus curiae brief filed by the MBA is of high quality. The committee may decline to file an amicus brief in cases where lack of time or other considerations may compromise the quality of the brief.
  4. Costs. The recommendation to the House of Delegates will include the anticipated costs, if any, to the MBA.

Procedure for Requesting Amicus Brief Participation

1. The Amicus Committee will consider timely applications for authority to file an amicus curiae brief from appellate courts, from section councils, and from individual members.  Additionally, members of the Committee may examine the dockets of the SJC and the Appeals Court to ascertain if cases are pending on which the MBA should file an amicus brief.
2. The following information*shall accompany requests from section councils and from individual members:

a. A statement that sets forth specific legal issue(s) that the requesting party believes the MBA should address;
b. A summary of pertinent cases;
c. A statement explaining how the legal issue(s) relate to the MBA Amicus Curiae Policy; 
d. A copy of any Judicial opinions issued on the particular case; and,
e. A copy of any docket on the case.

3. The requesting party shall provide copies of all briefs filed in the case and, if requested by the Committee, the record on review.

Amicus Committee: Internal Procedures

1. Committee Action on Request. A properly presented timely request shall be acted upon at the earliest feasible date by a quorum of the Amicus Curiae Committee. The chair, or his or her delegate, shall insure that as many members of the committee as are available shall be notified of the request and provided with appropriate materials to evaluate the issue of whether an affirmative recommendation shall be made to the House of Delegates. The committee may meet via telephone conferencing when necessary to expedite the process. 
2. In considering whether to participate as an amicus curiae, the committee may invite comment from counsel of record.
3. Content of Recommendation. Upon obtaining a recommendation supported by a quorum of the committee, the chair of the committee shall cause a written recommendation to be prepared and presented to the MBA House of Delegates. The recommendation shall include:

a. A recommendation and a brief statement in support of the recommendation;
b. A brief analysis of the issues raised by the case and a recommendation stating the position of the committee believes should be taken by the MBA;
c. A statement of costs associated with complying with the request and suggestions regarding appropriate individuals to author the brief.

Approval Procedure

[Amend Article V of the By-Laws so HOD members can vote by email, fax, or mail on proposals from the Amicus Committee.

Proposed Section: Amicus Issues

Because of the limited number of regularly scheduled HOD meetings each year and because of the need for timely responses to requests to file amicus briefs, the HOD may vote, if necessary, on recommendations from the Amicus Committee by mail, e-mail, or fax.  The Amicus Committee shall submit a request for action to the Executive Director on a pre-approved form developed by the General Counsel.  The Executive Director shall forward this form to HOD members within three days of its receipt.  HOD members must vote on the proposal within five days.  In order for a HOD vote under this section to be valid, at least thirty HOD members must vote.  A majority of those voting must vote in favor of the Amicus Committee=s proposal for it to pass.]

  1. Where the proposed amicus brief addresses an issue consistent with existing policy of the Association, as determined by the Chief Legal Counsel, the Amicus Committee's recommendation will be presented to and voted upon by the HOD in accordance with Section 13 of Article V of the By-Laws.
  2. When the proposed amicus brief either concerns an issue of special significance to lawyers or the legal profession or concerns the effectiveness or accessibility of the legal system, the Amicus Committee's recommendation shall, absent a timing emergency, be presented to the HOD at a regularly scheduled meeting. If the Amicus Committee informs the president that its recommendation must be acted upon by the HOD before a regularly scheduled meeting, the president, in his or her discretion, may call for a vote under Section 13 of Article V of the By-Laws or may schedule an emergency meeting of the HOD.
  3. When the proposed amicus brief concerns a matter of compelling public interest, the Amicus Committee’s recommendation shall, absent a timing emergency, be presented to the HOD at a regularly scheduled meeting. If the Amicus Committee informs the president that its recommendation must be acted upon by the HOD before a regularly scheduled meeting, the president shall schedule an emergency meeting of the HOD.

Review and Approval of Filing

1. Amicus briefs, authorized by the HOD, shall be filed only after review by the Amicus Committee to assure that the brief is:

a. Of high professional quality; and
b. A fair representation of the policy position of the association.

2. Any amicus brief submitted to a court shall be signed by the author of the brief, the Chief Legal Counsel of the MBA, and by the president of the MBA or his/her designe