Issue Watch #11: Response to Attacks on Rule of Law, News From the Courts, and More

It’s already May now (and kind of feeling like June outside), but I’m back to catch you up on news from April on the policy front, including a new amicus brief in support of a law firm that was the subject of yet another executive order, a new statement on rule of law and judicial independence, a trip to DC, plus action on Beacon Hill, an upcoming change to the Rules of Professional Conduct that you should know about, and—just as the calendar turned to May—a ceremony to reaffirm the special commitment of lawyers to support judicial independence.

Responding to Escalating Attacks on the Rule of Law

Yesterday, hundreds of attorneys, law students, and judges gathered on Boston Common—and across the country—for a powerful demonstration to defend the essential foundations of our democracy and re-swear their oaths. BBA President Matt McTygue was among those addressing the crowd—here’s an excerpt:

Today, on Law Day we re-swear our oaths—not simply as a formality, but as a powerful reaffirmation of our commitment to uphold the rule of law, the very foundation of justice that sustains our democracy. …

This is more than a ceremony. It is a call to action—a reminder that each of us plays a crucial role in keeping the rule of law a strong and central part of the American promise.

ANOTHER TARGETED FIRM, SAME PRINCIPLES:
BBA Continues Defense of the Profession in Amicus Brief Supporting Susman Godfrey

As we have previously in the WilmerHale, Perkins Coie, and Jenner & Block cases, the BBA joined a host of bar associations from across the US in signing an amicus brief supporting Susman Godfrey in their pursuit of relief from a Presidential executive order that targets them for retaliation. That firm had been singled out by the President for representing a voting-machine manufacturer that settled a defamation case stemming from false claims about fraud in the 2020 election.
 
As we said before, these orders amount to an effort to cripple the targeted firms’ business and undermine their clients’ right to counsel. They represent an assault on the independence of the legal profession, which is tantamount to an attack on constitutional democracy and the rule of law. We are proud to join other bars in collectively rising to defend the legal profession and the rule of law, and we will continue to do so as needed.
 
The briefs have all been coordinated by the New York City Bar Association and drafted by Harvard Law School professor Jeannie Suk Gersen and the Protect Democracy Project, and they each ask the US District Court for the District of Columbia to grant summary judgment for the firms and enjoin the orders. The number of bar associations signing on has now grown to 24.
 
In the meantime, that court held hearings last week on motions by two of the firms for permanent injunctions.

BBA Speaks Out on Abrego Garcia Case and Implications for Rule of Law

The BBA released a statement last week on the case of Kilmar Abrego Garcia, expressing concern over his deportation to El Salvador in spite of an immigration court order forbidding it and with an utter lack of due process guaranteed to all persons by the US Constitution, followed by an admission that this was in error but a refusal to take any steps to reverse the action and return him to his home. The statement notes, in particular, the Administration’s flaunting of its denial of any responsibility, based on a strained reading of the Supreme Court’s unanimous order in the case, while continuing to toy with refusal to recognize—indeed, outright defiance of—judicial authority.
 
The stakes escalated this week when the President stated that he did, in fact, have the power to effectuate Mr. Abrego Garcia’s return to the US—but would not do so. It did nothing to alleviate our concerns when he separately railed against “a handful of communist radical left judges [obstructing] the enforcement of our laws and assum[ing] the duties that belong solely to the president.”

More from the statement:

With a ruling from a panel of the U.S. Court of Appeals for the Fourth Circuit, denying the Administration’s motion for a stay of the District Court’s order that it facilitate Abrego Garcia’s return, we approach a confrontation that promises to be, as the Fourth Circuit wrote, “a losing proposition all around.”

As we have stated, “Our constitutional democracy relies on an independent judiciary as one of three equal branches of government, as well as on our country’s unwavering commitment to the rule of law, especially as it relates to respect for the separation of powers among the three branches.”

ARREST OF WISCONSIN JUDGE RAISES TROUBLING ECHOES OF MASSACHUSETTS CASE

The arrest last week of a sitting Wisconsin judge for alleged obstruction of justice—based on her actions with regard to a criminal defendant sought by ICE agents within her courthouse—has prompted criticism for blurring the lines between branches of government, interfering with an on-going prosecution before her, discouraging cooperation with the legal system by undocumented individuals, and intimidating judges. While the evidence has not been fully presented and some material issues are unclear, the circumstances are nonetheless reminiscent of the arrest of a Massachusetts District Court judge, on similar federal charges, during the first Trump Administration.
 
We spoke out against the prosecution at that time, saying:
 
“In the absence of allegations of corruption or graft, a federal indictment of a state court judge based on her judicial actions is an unprecedented overreach into state authority, and poses a serious threat to the judicial independence that we all depend upon to protect our rights under the law.”
 
And though we hope these examples remain outliers, we will continue to defend that principle, in keeping with our 2019 report on that topic.

News from the Courts

BBA LEADERSHIP MEETINGS WITH BANKRUPTCY COURT AND BMC

BBA President Matt McTygue and President-Elect Suma Nair continued their series of meetings with court leaders, sitting down this past month with Chief Justice Tracy-Lee Lyons of the Boston Municipal Court and the full Bankruptcy Court bench. The latter echoed concerns we’ve heard from other judges about security at a time of escalating rhetoric and increasing threats. They also expressed appreciation for their close relationship with the BBA’s Bankruptcy Section—and, in particular, for the Section’s efforts to take on cases of incapacitated or suspended attorneys.
 
Chief Lyons touted pilot programs in her court to provide on-line dispute resolution and virtual Lawyer for the Day, but her top priority is to expand the list of duty attorneys prepared to take on criminal cases at the BMC, because widespread shortages have led to defendants having to remain in custody longer than necessary.

Two Nominated to Superior Court Bench

Governor Maura Healey last week announced two new nominees for judgeships on the Superior Court, who must now be confirmed by the Governor’s Council:

Judge Charles Groce III has been an associate justice on the District Court for 13 years and is currently First Justice in the Westfield courthouse, as well as the presiding justice of the Court Assisted Supervised Treatment Program—a specialty court aimed at reducing recidivism by promoting rehabilitation, treatment, and healing for those affected by substance-use disorder—in the Springfield courthouse. Groce is also an adjunct professor at UMass Amherst and was previously a criminal defense attorney at his own firm for 13 years.

Jeffrey Trapani, a partner with Pierce Davis & Perritano LLP in Holyoke, has represented individuals, public officials and employees, and municipalities in the defense of personal-injury, employment-discrimination, and civil-rights cases for nearly two decades. He previously served as a Suffolk County ADA and a Law Clerk with the Juvenile Court. Attorney Trapani, a graduate of New England Law | Boston, has also sat on the Massachusetts Board of Bar Overseers, the Joint Bar Committee, and the SJC Standing Advisory Committee on the Rules of Civil Procedure.

Adams Pro Publico Awards

The SJC’s Standing Committee on Pro Bono Legal Services is seeking nominations for the 2025 Adams Pro Bono Publico Awards, honoring Massachusetts lawyers, law students, law firms, and legal organizations that have demonstrated an outstanding commitment to providing pro bono services for the benefit of individuals of limited means.

More information about award criteria and nomination guidelines can be found on the About the Adams Pro Bono Publico Awards webpage. The deadline for nominations is Monday, June 30, 2025.

The Committee is also seeking submissions by lawyers, law students, law firms and other legal organizations who qualify for the Pro Bono Honor Roll. More information and links to online application forms are available at the About the Pro Bono Honor Roll webpage. Applications for the Pro Bono Honor Roll should be submitted by Tuesday, September 30, 2025.

A ceremony honoring Adams Award recipients and Pro Bono Honor Roll participants will be held on Tuesday, October 28, 2025, at 4:00 p.m. at the John Adams Courthouse in Boston.

Update on Rules Changes

On behalf of our Criminal Law Section, the BBA submitted comments to the SJC regarding their proposed changes to the Model Jury Instructions on Homicide. The Section offered extensive suggestions on how the instructions might be improved, including as to mitigating circumstances, self-defense, joint venture intent, involuntary manslaughter instruction, and use of uncharged felonies as predicates.

Meanwhile, the SJC announced that a new Rule 1.16 of the Rules of Professional Conduct—covering circumstances when an attorney must decline or terminate their representation of a client based on information that the client intends to either commit fraud or use that representation in furtherance of a crime—will take effect on June 1. Our Criminal Law and Bankruptcy Law Sections had filed comments last year, when amendments to the Rule were first proposed, in which they cautioned that the proposal was overbroad—not to mention unnecessary—with respect to the harm they purported to prevent (money laundering and support of terrorism). The final rule underwent some changes, including the removal of an opening sentence that was especially concerning to the Sections.

Legislative Update

Legislative activity has heated up this past month on two fronts, with hearings starting in earnest and a state-budget plan passed by the House.

Thank you to all those members who heeded our call to contact your State Representative in support of several budget amendments offered by legislators to address some of our priority issues:

• Increases in funding for the Trial Court, to get to maintenance level
• A $3 million increase for MLAC, to match their full requested amount
• A set of amendments to boost funding for CPCS and increase their hourly rates

Unfortunately, none of those amendments were adopted, but we will continue to advocate for these line-items, and more, as the budget debate moves on to the Senate later this month.

Meanwhile, the BBA offered testimony at two recent committee hearings on legislation, advocating for:

• Modernizing and updating the UCC
• Changes to bankruptcy laws on voidable transactions
• Adopting a framework to provide for trust decanting
• Tweaking alimony guidelines to account for the elimination of federal tax deductibility
• Finally becoming the 50th state to join the compact on child-custody jurisdiction

The Legislature has until July 31, 2026, to consider these bills, but new rules this session may mean faster decisions at least at the committee stage.

BBA Leader Head to Capitol Hill

BBA President Matt McTygue and President-Elect Suma Nair were in Washington, DC, joining their MBA counterparts last month to meet with members of Congress from Massachusetts as part of the annual ABA Day event.

Priorities this year included funding for the Legal Services Corporation, as always, and legislation to improve security for federal and state judges, but our discussions also covered how the bar can help fight back against assaults on the rule of law.

ABA Day attendees, drawn from bar associations nationwide, heard remarks from four members of Congress, including Sen. Mazie Hirono of Hawaii, who shared her own concerns about threats to democracy, thanked the bar for using its voice in response, and urged lawyers to continue to stand up in support of law firms and judges who have been targeted.

I hope that’s enough to keep you updated until next time. By then, with any luck, the State Senate will have passed its own budget plan, the Governor’s Council will have voted on those two judicial nominees, and perhaps we’ll have heard more from the federal courts on those EO’s targeting law firms. You can also catch news from the BBA on LinkedIn and Bluesky, and from me on Bluesky.