On March 11, the Massachusetts Bar Association's House of
Delegates met to cover a full agenda in the midst of the MBA's
Annual Conference 2010.
MBA President Valerie A. Yarashus opened the meeting by
welcoming delegates to AC10. She offered a special welcome to
guests from the Tiered Community Mentoring Program, who were
present to observe the meeting, including students from Roxbury
Community College and Suffolk University Law School.
In addition to thanking Education Committee Co-Chairs Alan
Klevan and Marsha Kazarosian for their efforts in AC10's CLE
offerings, Yarashus also thanked MBA Vice President Douglas K.
Sheff and the entire Gala Dinner Committee for a stellar effort in
bringing together nearly 500 of their peers to the dinner that
As part of her president-elect report, Denise Squillante asked
delegates to oppose in principle expanded lawyer regulation under
the Consumer Financial Protection Agency Act. The delegates' vote
affirmed Squillante's view that the act would be "so broad and so
burdensome" to the legal profession.
Following the treasurer's and secretary's reports, the remarks
of MBA General Counsel and Acting Executive Director Martin W.
Healy focused on the fiscal 2011 state budget and other activity at
the Statehouse leading up to an election year.
Healy described Gov. Deval Patrick's proposed level funding for
Massachusetts Legal Assistance Corp. as "quite a feat," but also
noted the governor's budget cuts approximately $10 million from
funding for the courts.
"This is a very critical year for the budget," said Healy. The
Senate is expected to release its version in mid-April, which will
be followed by the release of the House version in May. Upon
enactment by both branches, a conference committee will be
appointed to work out the differences between the two budgets.
Healy also let delegates know that the latest push for
sentencing reform will be to have the House follow the Senate's
suit; the Senate passed legislation in November granting parole
eligibility for nonviolent mandatory minimum drug offenses.
"We're hopeful that this measure will move forward," said Healy,
who cautioned, however, that nothing is guaranteed, especially
entering an election year.
The election year will "drastically change the landscape on the
Hill," Healy said. He noted that incumbents will not be running for
re-election for 22 seats in the House and eight in the Senate. He
asked the delegates to "pay close attention to your districts. In
particular, those candidates who have stances with our profession
Delegates heard a report from 2010 Nominating Committee Chair
Edward W. McIntyre on the proposed regional and at-large delegates
and the following slate of officers:
- President-elect: Richard P. Campbell
- Vice President: Jeffrey N. Catalano
- Vice President: Douglas K. Sheff
- Treasurer: Robert L. Holloway Jr.
- Secretary: Marsha V. Kazarosian
For a list of proposed delegates and more information on the
nominating report, see front cover.
The delegates then were asked to vote on a series of proposals
brought forth by the Probate Law Section Council. First, Probate
Law Section Co-Chair Janice Nigro asked delegates to support in
principle the proposed Uniform Adult Guardianship and Protective
Proceedings Jurisdiction Act, which was drafted by the National
Conference of Commissioners on Uniform State Laws. The act
addresses all aspects of guardianships and protective proceedings
for both minors and adults. Delegates voted in support of the
Probate Law Section Co-Chair John Dugan then asked the group to
support in principle the revised definition of "nursing facility"
under the Uniform Probate Code. Dugan proposed a more narrow
definition of the term, making it consistent with the public health
definition and leaving less room for ambiguity regarding types of
admission that require an evidentiary hearing. According to Dugan,
the Massachusetts Hospital Association and Probate and Family Court
Chief Justice Paula Carey's UPC Implementation Committee support
the proposed amendment. After Dugan fielded a handful of questions
from delegates, HOD voted to support the revised definition.
William E. Hart, of Bulkley, Richardson and Gelinas LLP and a
past member of the MBA Probate Law Section Council, presented a
proposed revision of G.L. c.214, 3A - the statute concerning the
right of publicity with a comprehensive definition of that right
and a regime for recording transfers of that right.
Hart explained that Senate Bill 1800, An Act Relative to the
Right of Publicity, provides a "significant improvement" to the
current statute. In answering delegates' many questions, Hart
explained that there is no federal law surrounding this issue, and
while 28 other states recognize publicity as defined in the
proposed bill, only 14 recognize postmortem rights. According to
Hart, by supporting the bill, the MBA would be "part of a national
movement." Delegates voted to provide that support.
Marc Bloostein and Eric Hayes then took the floor to ask the
delegation to support in principle the report of the Ad Hoc
Massachusetts Uniform Trust Code Committee that recommends the
commonwealth adopt the Massachusetts Uniform Trust Code. According
to the report, The Uniform Trust Code, put forth by the Uniform Law
Commission in 2000, is the "first attempt to achieve national
codification of the law of trusts." The code has been adopted in 21
states. After little debate, HOD cast a vote to support the Uniform
Trust Code's implementation in Massachusetts.
Although a number of proposals concerning the Property Law
Section were on the agenda, time only allowed for one. Suffolk
University Law School Professor Kathleen C. Engel urged delegates
to support in principle House Bill 1729 and Senate Bill 1778, both
of which call for judicial foreclosure requirements.
Many delegates participated in an impassioned debate touching on
concerns of court resources, sympathy for citizens losing their
homes and fairness for responsible mortgage lenders. Responding to
such concerns, Engel explained that nearly 85 percent of the cases
are going to be default judgments should Massachusetts adopt
"Think about the little guy," said Chris Milne, representative
delegate for the Massachusetts Academy of Trial Attorneys. "At the
end of the day, they will still have to make their case."
Dugan offered the concerns of the Probate Law Section Council
that enacting judicial foreclosures would provide a "blanket
treatment" for all lenders - responsible and predatory lenders.
Edward Smith, representative delegate of the Real Estate Bar
Association, voiced REBA's opposition to judicial foreclosures. He
explained that although REBA acknowledges the "national sympathy"
on the foreclosure crisis, the association would be against such a
mandate because of the required resources.
According to Engel, 30 states enlist judicial foreclosures, and
from those, "we have not heard that this is burdensome" to the
courts. "Massachusetts is behind the curve," she said.
Due to time constraints and the breadth of delegates' concerns,
Yarashus moved to suspend the debate and a vote until the next HOD
meeting. Delegates passed the motion.
The next House of Delegates meeting is scheduled to take place
on May 19.