HOD weighs practice definition, gay marriage, access to justice issues

Issue December 2004

The MBA House of Delegate chose a history-laden setting in which to tackle some very contemporary issues on the agenda for its November meeting. Against the backdrop of the Colonial-era Tavern at Old Sturbridge Village, the HOD dug into a full plate proposed resolutions, section council reports and association business topics.

MBA President Kathleen M. O'Donnell opened the session with an invitation for the HOD members to join in the Dec. 6 launch of the USA Patriot Act Initiative and told the gathering of her own experiences in helping bring the MBA's resolution before her hometown city council in Lowell (see President's Message for more).

O'Donnell also showed the HOD portions of a recent series of CBS4 Boston investigative TV reports on judges at the Middlesex County Probate and County Court. In the series, Channel 4 reporter Joe Bergantino cited several judges for allegedly working less than their required number of hours at the court. As a result of the series, the judges were reprimanded by Chief Justice for Administration and Management Robert Mulligan.

O'Donnell said the officers were planning to meet to determine whether to respond to the series and sought input from HOD members to guide their decision. The discussion that followed favored a measured response in support of the judges, who the members felt were inaccurately portrayed.

"The problem isn't that these judges are coming and going," said Paul Nicolai, Hampden County Regional Delegate, expressing an opinion voiced by several members, "but that they're being treated like factory workers by measuring their time on the job not their work."

"There is a misconception of what the job of a judge is," said MBA President-Elect Warren Fitzgerald. "There is a heavy load of research and writing. To expect them to be on the bench from 9-5 is ludicrous."

Access to justice commission

Following this spirited discussion, the HOD took up another topic that evoked considerable input - a request to endorse a proposal to create a Massachusetts Access to Justice Commission. As explained by the Hon. Herbert P. Wilkins and former chair of the MBA Access to Justice Section James Van Buren, the commission would provide leadership, vision and coordination to organizations that provide civil justice to low-income residents in the state. The commission already has the support of the Boston Bar Association, the Boston Bar Foundation, the Massachusetts Legal Assistance Corporation, and is currently under review by the Massachusetts Bar Foundation.

"This will do some real good for delivering civil legal service to the poor," Wilkins said.

Calling the proposed 21-member panel "no pie-in-the-sky board," Van Buren said, "This is an entity that will be fair and be perceived to be fair in making its recommendations."

The HOD voted unanimously to endorse the proposal.

Bar advocates update

The HOD heard an update on the efforts to increase pay for bar advocates from Kevin Shanahan, a representative of the Committee on Bar Advocate Programs, who asked for continued MBA support in four key areas: lobbying the state commission that is studying the bar advocate system; supporting the current systems of both public and private bar counsels; reaffirming the MBA's backing for a CPCS pay increase that has been on the table for several years; and supporting level funding for the bar advocate program in the legislature.

In a related discussion, the HOD also considered a resolution to oppose attempts by judges to assign lawyers to represent indigent criminal defendants.

The HOD unanimously approved both proposals.

General counsel's report

In his report to the House, General Counsel and Acting Executive Director Martin Healy discussed the action needed to meet the bar advocate commission's Dec. 1 for submitting comment, noting that, "it is vital that the bars speak with a unified voice given the urgency of this issue."

Healy went on to preview the January start of the legislative session. Two dozen pieces of legislation of interest to the MBA are pending or expected to be filed, he said. He also predicted a somewhat slow start to the year, given the leadership changes on Beacon Hill.

Healy also mentioned the recent news reports on the decline of medical malpractice claims. Although "filings themselves have gone down," he said, "the insurance crisis still exists."

Turning his attention to the MBA's annual conference in March, Healy announced that two awards would be given during the Annual Dinner on March 4. Rep. Salvatore F. DiMasi has been selected as Legislator of the Year, he said, in honor of his "very active service in the legislature on issues of concern to the legal profession and for his longstanding practice of law." And SJC Chief Justice Margaret Marshall will become the third recipient of the Chief Justice Edward F. Hennessey Award, for her leadership in court reform and court management.

In addition, Healy, joined by O'Donnell, discussed the dinner's keynote speaker, Calvin C. Johnson, Jr., whose recent autobiography, "Exit to Freedom," recounts the 16 years he spent in prison, wrongfully convicted of rape, until he was exonerated with the help of the Innocence Project. O'Donnell announced that, in a departure from previous years' practice, a $10,000 donation will be made at the dinner to an innocence project from the funds normally set aside for a speaker's fee.

House Bill No. 180

In the face of House Bill No. 180, which would allow corporations or their agents to handle real estate sales agreements, leases and related work, the HOD was asked to reaffirm the MBA's opposition to non-lawyers practicing law.

Kathleen M. O'Donnell, chair of the Property Law Section, made the proposal, calling Bill 180 "an attack on the practice of attorneys."

"This state has traditionally had a low rate of complaints and claims relating to real estate closings, and that is because of the involvement of attorneys," she said.

The discussion that followed O'Donnell's presentation echoed and expanded on her concerns.

"This bill is ominous," said Jon Davis, president of the Real Estate Bar Association of Massachusetts. "This bill is not based on any benefit to the consumer. It's only for the benefit of the corporations backing it."

"Most states in the U.S. don't require lawyers at closings. New England is the holdout," said Nicolai. "I oppose 180, but my problem is stopping there. Most of the public thinks that lawyers are irrelevant, that they don't add any value. I believe we have to look at (the legal) business and make it more relevant to average citizens and to the middle class consumer. This (opposition to Bill 180) is a good start, but we shouldn't stop at that."

The HOD approved the recommendation to oppose House Bill No. 180.

Practice of law

The discussion of Bill 180 segued easily into an earnest debate about the definition of the practice of law, following a report from Denise Squillante and Lee Gartenberg, co-chairs of the Unauthorized Practice of Law Committee.

The HOD had last heard from the committee last spring when it presented a draft definition that was later published on the MBA Web site to solicit member comment and input. According to Squillante, since that time the committee has reviewed that input and come to a philosophical divide.

In a point-counterpoint presentation with her co-chair, Squillante called the input from members "quite discouraging"" but argued for continued work by the committee to achieve a definition.

"It is no longer sufficient to rely on an antiquated position that we know it (law practice) when we see it," she said. "We can't abandon the view that lawyers are a necessary service."

Gartenberg, citing the potential for criticism and "endless wordsmithing" that could accompany any formal definition of law practice, argued for ending the committee's work. "The input we received has strengthened my resolve that this (process) isn't worth it, he said. "Our energies are better used taking up the individual battles as they come up, such as Bill 180."

After considerable discussion among the HOD members, echoing each of the co-chairs' points, the House authorized the committee to continue its work on defining the practice of law.

Post-Goodridge report

Vice President Mark Mason, chair of the Post-Goodridge Task Force, reported on the one-year anniversary of the SJC's landmark gay-marriage decision and offered a resolution reaffirming the MBA's support of the fundamental right of all individuals to marry and to articulate the MBA's position as amici in consolidated cases, notably Cote-Whitacre, et al. v. Department of Public Health, et al., and Clerk of the Town of Provincetown, et al. v. the Attorney General, et al., which concern the rights of non-resident gay couples to marry in Massachusetts.

"The plaintiffs will argue that if an out-of-state couple comes into Massachusetts, they fall under the laws of the state - they lawfully come under the jurisdiction of the state," Mason said.

"This is integral to what we do as lawyers," he added, "supporting the rights of citizens of Massachusetts and, under the federal constitution, the rights of citizens coming into Massachusetts."

The resolution was approved by the HOD.

Other business

The HOD also approved the following:

•  Opposing the Gramm Leach Bliley Act and signing onto an amicus brief to be prepared by the American Bar Association and the New York State Bar Association;

•  A resolution proposed by the Individual Rights & Responsibilities Section that calls on the president, Congress, the governor of Massachusetts and the legislature to investigate and correct alleged violations of the constitutional rights of citizens to vote in the recent U.S. election.

The next House of Delegates meeting is scheduled for Jan. 19 at Bentley College in Waltham.