HOD supports repeal of REAL ID Act, debates ethics opinion on professional networking groups

Issue April 2008 By Bill Archambeault

The March 6 House of Delegates meeting unanimously endorsed a resolution presented by the Individual Rights & Responsibilities Section to oppose the implementation of the REAL ID Act of 2005.

The law will require states to pay for introducing a national ID card. Critics fear it could be used for racial profiling and restricting travel, and would be a goldmine in the hands of identity thieves.

IRR Section Chair Kevin G. Powers and Section Council member Sara Wunsch, a staff attorney at the American Civil Liberties Union of Massachusetts, explained that the law was passed with little discussion as part of a supplemental funding bill. It calls for introducing a national ID card, placing the cost of implementing the program almost entirely on the states.

It also raises serious civil rights concerns, Wunsch said, including affecting people’s ability to travel and creating a massive, potentially error-filled database that would be susceptible to identity thieves. (For a thorough explanation of the risks associated with the REAL ID Act, see Wunsch’s article in the Vol. 10, Issue 1 edition of Section Review.)

“It has serious consequences,” she said, adding that Congress came up with roughly 1 percent of the estimated $23 billion needed to pay for the program. “It is, in essence, an almost totally unfunded mandate. The cost is enormous.”

Seventeen states are already on record opposing the act, she said in asking HOD to:

• Urge the Massachusetts congressional delegation to support legislation that would repeal the drivers’ license provisions of the REAL ID Act;
• Support passage of Massachusetts Senate Bill No. 2138, which would require the Legislature not to appro-priate any funds to pay for implementing the act other than to comprehensively analyze what the costs of imple-
menting the act would be, or to mount a constitutional challenge through the state’s attorney general, or unless the federal government provides adequate, upfront funding.
• Urge the governor to announce that the state’s Registry of Motor Vehicles will take no steps to comply with the act and that no executive branch agency make any expenditures to comply; and
• Take any other measures necessary to win the repeal of the act.

There was no discussion, and the resolution passed unanimously.

Ethics rule debate

Delegates engaged in a spirited debate over the MBA Committee on Professional Ethics’ proposal to publish an ethics opinion stating that lawyers are not allowed to take part in a private business networking organization that requires members to provide referrals to the other members.

Committee Chair Andrew Kaufman explained that the Massachusetts Rules of Professional Conduct do not allow lawyers to belong to a professional networking group that requires its members to provide and receive referrals from the other members of the group, which usually allow only one representative from each profession.

“We’ve had a number of inquiries from lawyers over the years about this type of organization,” Kaufman said.

But a number of members expressed concerns about sending the message that belonging to professional networking organizations — even those that don’t require referrals — raised ethical concerns.

“I would hate to see us as members of the MBA tell lawyers not to network within their communities,” said At-Large Delegate Charles Wagner.

Suffolk County Delegate Jeffrey B. Loeb suggested that publishing this opinion would raise fears that belonging to a wide range of professional networking groups could raise ethical dilemmas.

And Civil Litigation Section Chair Jeffrey N. Catalano expressed concerns that this opinion might lead to a slippery slope in the future, for example, if a lawyer recommended a client to a nonprofit group and then the nonprofit group in turn referred other clients back to that lawyer.

Kaufman stressed that nonprofits are treated very differently than networking groups with established rules requiring referrals from its members. And the opinion only applies to professional organizations that require exclusive referrals as a condition of membership, not to the appropriateness of sharing referrals among members of networking groups in general.

MBA Secretary Robert L. Holloway Jr., who has been on the Ethics Committee for a number of years, spoke strongly in favor of publishing the opinion.

“I think lawyers need to know this,” he said. “I think it’s important to publish this.”
MBA Past President Mark D Mason supported the request.

“It is a correct interpretation of the law… the law,” he stressed. “As a matter of law, there’s no question the committee is correct in its assessment.”

Noting that it was “the most comprehensive ethical debate in a long time,” White called for a vote, first taking a motion not to publish the opinion. Half a dozen members voted against publishing the opinion; the original motion to publish was approved.

Eco-Challenge update

MBA President David W. White Jr. reported the progress being made with the MBA’s Lawyers Eco-Challenge. Dozens of law firms have signed the Lawyers Environmental Pledge to implement the MBA Green Guidelines, which were announced in January.

He also announced that “Eco-Tips” are being published weekly in both the MBA’s e-Journal, which is mailed electronically to members, and in Massachusetts Lawyers Weekly (see story on p. 10). He thanked MBA staff and the MBA’s Energy and Environment Task Force, which oversees the program through a partnership with the Conservation Law Foundation.

“It’s a testament to the committee’s hard work,” White noted. He also pointed out that energy-saving and recycling efforts implemented at the MBA’s offices are already reducing waste and generating savings. And he proudly noted, pointing to the HOD booklets, that they were no longer produced with plastic covers.

Recent and upcoming events

White thanked Catalano for the council’s work in organizing the Firm and Fair Trial Date Town Hall, which was held March 20 (see story on p. 1).

President-elect Edward W. McIntyre announced that his president’s reception will be held Sept. 18 at Mechanic’s Hall in Worcester. He also announced that the Annual Dinner will be held Nov. 12 at the Moakley Courthouse and feature University of Florida Professor Leonard L. Riskin, who will speak about mindfulness in the practice of law.

Fiscal director’s position filled with a familiar face

Treasurer Valerie A. Yarashus announced that the MBA’s budget is on track. She also announced that the MBA director of fiscal operations and business development position had been filled… by Mark Doherty, who returned to the position he’d held before leaving the MBA for a private-sector position for two months.

“Perhaps the best news we have is that we were able to recruit back our chief financial officer, Mark Doherty,” Yarashus said. “For those of you who know what he does, that is the best news we’ve had in a long time.”

Doherty returned to the MBA on March 10.

Legislative update

MBA General Counsel Martin W. Healy updated members on several MBA-endorsed initiatives being considered by the Legislature.

Healy noted that he expects to see the Legislature take action on criminal sentencing reform.

“Reading the tea leaves, I think we are going to see some major reform before the end of the year,” he said, including reforms to minimum mandatory sentencing. Healy also noted that he expects to see reforms to the sentencing of sex offenders, given the attention paid to a number of high-profile crimes making headlines recently.

“A lot of credit goes to President White and other members of the leadership team,” Healy said, noting that the MBA-sponsored Sentencing Symposium in the Statehouse’s Great Hall on Oct. 23 was a good launching point for the effort. “We’re pleased to see some of those efforts come to fruition.”

White noted that MBA officials had recently met with Cape and Islands District Attorney Michael O’Keefe, the new president of the Massachusetts District Attorneys Association, an independent state agency that provides support to the 11 elected district attorneys and their 700 appointed prosecutors. White also said he is hoping that sentencing reforms will be pushed through later this year.

Healy explained that officials from the MBA, Boston Bar Association and various community bar associations had testified at the Statehouse on the perennial topic of salaries for judges and court staff.

“The case was made that Massachusetts is lagging far behind the rest of the country,” Healy said. He noted that more and more judges are coming from ranks of prosecutors and state agencies than from private practice. That shift, he said, reflects that judges’ salaries have reached the point where successful attorneys in private practice don’t feel they can afford the pay cut required to consider a bench appointment. It could also reflect a loss of balance in the diversity of judges’ backgrounds.
Healy also noted that the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law had released a second draft of its Guide to Evidence, which was distributed to the section councils for review.

Finally, Healy said the turnout for this year’s Walk to the Hill on Feb. 28 (see story on p. 17) was an impressive sight.

“We had a tremendous Walk to the Hill,” he said. “I was amazed to see the crowd entering the Hill that day.”

Executive director’s report

Executive Director Marilyn J. Wellington began her report by thanking the membership and staff for the impressive turnout at and presentation of the Access to Justice Awards Luncheon (see story on p. 1), which immediately preceded the HOD meeting.

“It’s arguably the most important event the MBA holds,” she said.

She also updated delegates on the MBA’s recently announced Massachusetts Bar Institute Public Service Fund, “Bringing the Legal Profession into Your Community,” which seeks to raise money to help fund the MBA’s community services efforts (see story on p. 6).

“The more we can highlight the great work that’s being done, the more we can improve the image of the profession,” she said.

In other news…

• Criminal Justice Section Chair Lee J. Gartenberg asked to postpone his section’s proposal to create a Juvenile Justice Section until the May 14 HOD meeting in Salem.
• The Civil Litigation Section won unanimous approval, with no discussion, to oppose House Bill 1370 and Senate Bill 987 regarding statements of regret by health care providers in medical malpractice cases. A majority of the Civil Litigation Section Council voted against the “stand alone” apology bills on the grounds that they do not serve the best interests of consumers and patients and are overly broad. The bills seek to make any regrets, apologies or admissions of errors or mistakes made by a health care provider or employee to a patient, or their relative or representative, inadmissible as evidence in any judicial or administrative hearing and shall not constitute an admission of liability. Both bills are currently pending before the Joint Committee on the Judiciary.