Issue Watch #20 – Supreme Court Invective, an SJC Ruling, Advice from Divorce Lawyers, and More

I don’t know about you, but I am still recovering from last week’s head-spinning turns by the Department of Justice. In a sequence that felt like that toddler in the popular GIF —rushing dramatically into the room only to do a quick 180— the DOJ first moved to drop its consolidated appeal of the four decisions that found presidential executive orders targeting specific law firms to be unconstitutional. Then, with the collective sigh of relief still echoing across the bar, it filed a follow-up motion the next day, titled (if I remember correctly), NEVER MIND.

By the time you read this … who knows?

One thing that hasn’t changed: the BBA continues to stand with firms, with lawyers, and with the courts in opposing any effort to turn the bar into an instrument of the executive branch.

BBA Decries Personal Attacks on U.S. Supreme Court Justices

After the President responded to the U.S. Supreme Court ruling that blocked some of his tariff policies with invective that questioned the integrity of the Justices who had ruled against him, as well as their loyalty to the Constitution, the BBA joined the ABA in reiterating our call for an end to criticism that crosses the line. As BBA President Suma V. Nair stated,

“Personal attacks on judges undermine our system of checks and balances and erode respect for the fair and faithful interpretation of our laws. Remarks that threaten public support for judicial independence take direct aim at the rule of law itself.

At the BBA, we believe our members, as well as bar associations and lawyers across the country, play a vital role in promoting and defending judicial independence and civility in our legal process. That includes engaging in public education, helping the public distinguish between principled disagreement and dangerous attacks, and speaking out when criticism becomes inflammatory rhetoric.“

Amicus Update

Since last time, the SJC issued favorable decisions in two cases in which the BBA weighed in as amicus:

In Commonwealth v. Tanner, the Court rejected the DA’s appeal of a judge’s denial of its motion to vacate an order for post-conviction testing after the death of the defendant. The BBA had submitted an amicus letter, written by Neil Austin, pointing to the BBA’s history as the original drafter of the relevant statute, and urging the court to leave the order in place in the interest of justice. The unanimous Court agreed.

As Neil put it,

“With this decision, the Court again emphasizes that the statute in question was designed to allow for exoneration of the wrongfully convicted. We urged the Court to reach this result because DNA technology can be a powerful tool in reversing a prior miscarriage of justice.”

The Boston Globe covered the ruling as well.

Meanwhile, in Commonwealth v. Santana, a 5-2 majority held that a judge should have conducted an evidentiary hearing before ruling on a non-citizen defendant’s motion to withdraw his guilty plea based on inadequate assistance of counsel. The defendant argued that he had not been properly advised of the dire immigration consequences that would result, and his trial counsel submitted an affidavit supporting this claim.

We joined CPCS on a brief that disputed the judge’s conclusion that the attorney’s affidavit conflicted with his earlier statement the plea stage, that he had discussed consequences with his client..

Maria Durant of Hogan Lovells, who co-authored the brief, told us, “The Court’s decision represents an important victory, as it provides a roadmap for defense counsel and lower courts to ensure that immigration consequences are fully understood and properly addressed during plea colloquies.”

BBA Section Conveys Concerns to MCAD over Proposed Regulations

The BBA submitted comments on behalf of its Civil Liberties & Civil Rights section to the Massachusetts Commission Against Discrimination regarding the Commission’s recently proposed overhaul of its procedural regulations.

The comments raise concerns about several changes that could allow MCAD to screen out significantly more cases without investigation, even where the complaint states a claim for discrimination. That outcome would deprive litigants, particularly pro se litigants who might not be able to successfully navigate the court system, of the right to have their cases heard and the discrimination they have experienced redressed.

Additional areas of concern include:

• Requiring complainants to use the Commission’s on-line portal to file claims
• The elimination of both pre-determination discovery and the current live-hearing appeal process
• A heightened probable-cause standard.

The comments represent input from members of the section and were drafted by section co-chair Naomi Shatz of Zalkind Duncan & Bernstein, with assistance from her Zalkind partner David Russcol.

BBA Leaders Heading to DC for ABA Day

Later this month, BBA President Suma V. Nair and President-Elect Mark C. Fleming will be off to D.C. to take part in the annual ABA Day lobbying event, alongside their counterparts from the MBA.

In meetings with the Massachusetts Congressional delegation, they’ll be advocating, as always, for greater funding for the Legal Services Corporation. This year, they’ll also be talking about judicial security and appropriations for the federal courts.

You, too, can take part—without having to travel to Washington: The ABA is encouraging lawyers to request meetings with their members of Congress during the spring recess, March 30 through April 10. You can learn about the issues, meet in person or virtually, and share the experience on social media. They’ve designated March 31 as a special day of action, with a training broadcast at 1pm.

News from the Courts

BBA Leaders Meet with First Circuit Court of Appeals

Suma and Mark recently sat down with Chief Judge David J. Barron of the First Circuit Court of Appeals last month, at the Moakley Courthouse’s Stephen G. Breyer Community Learning Center on Courts and the Constitution. The conversation ranged from what AI may mean for lawyers, judges, and self-represented litigants to the concerns around judicial security. They also touched on the need for stronger civics education—for adults as well as students.

U.S. District Court Events:

“Newest Women on the Federal Bench” Panel
In recognition of Women’s History Month (and if you haven’t yet, take a look at the BBA’s LinkedIn page!), the U.S. District Court is holding an event in the Moakley Courthouse at 4pm on March 24th titled, “Newest Women on the Federal Bench.” Moderated by Senior Judge Patti Saris, the panel will feature Appeals Court Judges Lara Montecalvo and Julie Rikelman, District Court Judges Margaret Guzman and Julia Kobick, and Magistrate Judge Jessica Hedges.

Forum on Civil Matters
Following up on a corresponding program earlier this year on the criminal side, the Court will host a forum on civil matters on April 14th from 4 to 6pm. Judges from the District Court will answer a series of questions posed about cutting-edge legal issues from a panel of civil practitioners, including BBA Council member Amy Burkart of the SEC and former Council member Kevin Prussia of WilmerHale. Then stay for the reception!

CPCS Accepting Applicants to Its Zealous Advocacy Training Program

The Committee for Public Counsel Services is inviting qualified attorneys who are interested in representing clients in District and Juvenile Court matters, as members of the statewide Bar Advocate panel, to apply through March 20 for its nationally recognized Zealous Advocacy Training. There is a particular need in Middlesex, Suffolk, Hampden, Franklin, Worcester, and Berkshire counties.

The training offers experienced and emerging litigators the opportunity to strengthen their courtroom advocacy skills while engaging in meaningful public defense work. Attorneys who complete the program become eligible to accept CPCS assignments and receive ongoing mentorship, supervision, and professional support. Please feel free to share this opportunity with anyone who may be interested in expanding their litigation practice: Full certification and training details.

Judicial Appointments, Confirmations, & Nominations

District Court Confirmations

Craig Mulcahey was in private practice for more than two decades—first with the Law Office of Michael Doolin in Dorchester and since 2011 as a solo practitioner—litigating criminal and civil matters in the District and Superior Courts and handling post-conviction work in the Massachusetts Appeals Court and the United States Court of Appeals for the First Circuit, while also working as a bar advocate through Suffolk Lawyers for Justice. Prior to that, he was an ADA in both Norfolk and Suffolk Counties—including time as a school-violence prosecutor working with school personnel to address at-risk students and reduce school crime—and a residential child-care worker in Needham. He holds a law degree from Suffolk University Law School.

Paul J. Anthony ran a solo practice in Stoneham for nearly thirty years, with a focus on criminal defense. He represented clients in matters involving a wide range of misdemeanor and felony charges in both the District and Superior Courts and also has experience litigating civil matters, including contract disputes and real estate transactions. He was a member of the Suffolk Lawyers for Justice program since 1997. He holds a B.S. from Salem State University and a J.D. from the Massachusetts School of Law.

District Court Nomination

Shelly-Ann Sankar is currently the First Assistant Clerk Magistrate in the Springfield District Court, responsible for assisting in the ministerial and magisterial administration of the Court. She presides over small-claims matters and show-cause hearings, conducts administrative and motor-vehicle appeals, and reviews search warrants and applications for complaints. She previously served as the Assistant Clerk in Charge of Jury at the same court, and she is cross-designated to handle matters in the Housing and Juvenile Courts. Previously, Attorney Sankar served as a Hampden County ADA, prosecuting a wide range of criminal cases in the Juvenile, District, and Superior Courts. She graduated from Westfield State University and Western New England University School of Law.

Juvenile Court Confirmation

LaKeshia Parker Small most recently served for two years as assistant clerk magistrate in Norfolk Juvenile Court, conducting probable-cause hearings, facilitating courtroom sessions, assembling records for cases on appeal, and handling other magisterial duties. She began her legal career in 2008 as a Suffolk County ADA, before spending nearly a decade as assistant regional counsel at the Department of Children and Families, where she litigated child welfare on behalf of the state and conducted hundreds of hearings and trials pertaining to custody and termination of parental rights. An alumna of Boston University Law School, she also worked in private practice, representing residential landlords in landlord/tenant matters, and handling matters pertaining to family law and domestic relations.

Juvenile Court Nomination

Mary Gallant-Cote has been Clerk Magistrate for the Berkshire County Juvenile Courts since 2022, presiding over show-cause hearings involving applications for criminal complaints, evaluating probable-cause and jurisdictional issues, and issuing arrest warrants. She previously served for six years as Assistant Regional Legal Counsel in the Department of Children and Families, where she managed and litigated care-and-protection matters and provided legal guidance to agency staff. From 2009 to 2016, she was a solo practitioner in Springfield, representing clients in civil and criminal matters in the Probate and Family, Juvenile, and District Courts. Attorney Gallant-Cote has also served as an Adjunct Professor and Moot Court Coach at her alma mater Fitchburg State College, and she holds a J.D. from Western New England School of Law.

Probate & Family Court Nomination

Mary Ferriter has practiced for 20 years with Esdaile Barrett & Jacobs, where she represents clients in all aspects of probate and family law. She previously served as Director of the High Conflict Parent Education Program at William James College in its Child and Family Evaluation Services division, managing court-ordered programming operations, establishing administrative systems to track participants, and training and supervising instructors, volunteers, and graduate students. She began her career in the Probate and Family Court Administrative Office, where she worked from 1988 to 2001, supporting judges and court staff in managing child welfare cases and coordinating services across agencies. Attorney Ferriter is a graduate of Lesley University and Suffolk University School of Law, and she also holds a Master of Science in Public Administration from the McCormack Institute of Public Policy at UMass Boston.

Members in the News

In an inspired piece of service journalism, the Globe’s Yvonne Abraham devoted her Valentine’s Day column to—as the headline put it—“Relationship advice from those who’ve seen it all: Divorce lawyers.” And the interviewees included former Family Law Section co-chair Lisa Wilson, of Wilson, Marino & Bonnevie, Handling divorces “makes my relationship better,” she said. “I like my life to be very calm, with no drama. I save it all for work. I tell my spouse every day how much I love her.” Adds BBF Fellow Nancy Baskin in that same article: “Not cheating is a great start. … [If all else fails] chocolates and roses don’t hurt.” Free advice, people.

The Globe also featured attorney Corey Martin for her tireless volunteer work, handling immigration cases locally and helping children who are being held at an immigration detention center in Texas. A commercial litigator by trade, Martin told the Globe she was moved to act by seeing children in camps under poor conditions. On her visits, she said, “I do not hear children laughing and playing. The default is treating them like they’re inmates.”

Oh, one more member in the news, on my way out the door: Sean P. O’Neill of Anderson & Kreiger got a well-deserved write-up in MLW ahead of the Milano/Cortina Paralympic Games, in which he is currently competing for the U.S. in wheelchair curling, just four years after taking up the sport. Draw to the button, Sean! (Did I say that right?)