Issue Watch #21 – DOJ Proposal Raises Alarms, SJC Rulings, and Law Day Ahead
To shake things up a little, let’s start this time with some news not from the Commonwealth but from DC… including the latest bar-association amicus brief in support of law firms targeted by Presidential executive orders, a concerning proposal from DOJ on bar-discipline investigations, and our meetings with the Massachusetts delegation on Capitol Hill (timed propitiously for peak cherry blossoms)…
BBA Leaders Take Part in ABA Day
BBA President Suma Nair and President-Elect Mark Fleming made the rounds in Congress—alongside their MBA counterparts, Michael Hayden and Sam Segal—to ask for support of several shared priorities, all under the aegis of the annual ABA Day event. As always, we advocated for funding of the Legal Services Corporation, but other issues this year included the Effective Assistance of Counsel in the Digital Era Act, legislation on judicial security and federal-court funding.
Among the elected officials we met were Senator Ed Markey and Representatives Richard Neal, Jim McGovern, and Ayannah Pressley.
BBA Continues to Stand by Law Firms Targeted in Executive Orders
As the U.S. Department of Justice (DOJ) pursues an appeal of the four District Court rulings that struck down presidential executive orders targeting individual law firms, the BBA has joined dozens of other bar associations on an amicus brief in support of the firms—and the profession as a whole.
BBA Files Comments About DOJ Proposal on State-Bar Ethics Investigations
A proposed regulation that would allow DOJ to indefinitely suspend any state bar regulators’ investigations into DOJ attorneys drew thousands of comments from the public—including from the BBA, which argued that the change is unnecessary because “there is a robust and fair mechanism for a neutral decision-maker to decide whether deferment of a disciplinary investigation is appropriate and efficient.”
Our comments go on to say that if the proposed rule advances, amendments are needed, both to clarify the procedure that applies if DOJ concludes that an allegation of an ethical violation is unfounded, and also to set a reasonable time limit on any deferral request made by DOJ pending its own investigation.
US Supreme Court Threatens Massachusetts Conversion-Therapy Ban
After a therapist challenged a Colorado law banning the use of “conversion therapy” by professionals on minors, the high court held late last month that it is subject to strict scrutiny. An 8-1 majority, with Justice Jackson the lone dissenter, remanded the case to the lower court, where it will likely be found unconstitutional under this test. Massachusetts is among about two dozen other states with similar laws that are now in jeopardy as a result of this ruling. The BBA endorsed (and still supports) the law, while advocates are making preparations for the impact of a final ruling.
Bankruptcy Venue Reform Back Before Congress
A bill to close a loophole that allows forum-shopping in Bankruptcy Court has been refiled in the current session of Congress. The Bankruptcy Venue Reform Act (HR 8111) would require that Chapter 11 bankruptcy proceedings take place where the principal place of business or principal assets of the corporation are located, so that local creditors, employees, and other affected stakeholders have greater access to the proceedings. As a statement from the bill’s lead sponsor, Rep. Zoe Lofgren, notes, the BBA supports this measure.
DOJ Firing of Another Immigration Court Judge Makes the Case for Its Independence
We’ve said before that the Immigration Court should be an Article I court, independent and out from under the control of the executive branch, and the recent firing of another local judge underscores the need for such action. As it happens, that same Rep. Lofgren (see above) recently filed the Real Courts, Rule of Law Act, to do just that. Before this latest dismissal, a New York Times article documented how politics has permeated the Court.
House Advances Budget Plan
Back in Massachusetts-specific news, the House Ways & Means Committee released a budget proposal last week for the coming Fiscal Year 2027, ahead of a floor debate planned for next week. The BBA had requested support for funding of the Trial Court, legal services, CPCS, and the Access to Counsel Program for eviction cases:
- The plan’s total Trial Court appropriation level falls about $6 million short of what they need to maintain current levels of service. The Court is hopeful that the Senate will bridge that gap once the budget reaches that chamber.
- Ways & Means would fund MLAC at $52 million: a $1 million increase from the current fiscal year but still $1 million shy of their full request. A floor amendment (#121) offered by Rep. Simon Cataldo would make up that difference (see below).
- Appropriations for the Committee for Public Counsel Services (CPCS) appear to be adequate, though an amendment from Rep. Rita Mendes would address an issue on which the BBA has expressed concern—compensation rates for bar advocates, the private attorneys who take on representation of indigent defendants—by tacking an additional $15/hour increase on top of the $20/hour that the Legislature provided in the previous budget (spread out over two years).
- The Access to Counsel Program would receive funding for the third year—this time at $3 million, or an increase of $0.5 million from the previous two annual budgets. Reps. Michael Day and David Rogers have filed two relevant amendments—one (#1419) to add another $1 million to this line-item and a second (#1291) to enshrine the program in statute, making it permanent.
For each of the above amendments, we urge you to contact your State Representative, to ask them to communicate their support to the Ways & Means Committee. Thanks for your help at this critical stage in the budget process!
House Passes Broad Immigrant-Protection Bill
An omnibus bill passed the state House of Representatives last month in response to federal immigration-enforcement actions. Among its provisions are a ban on civil arrests within courthouses and a requirement that employers notify workers when they learn of an impending immigration audit. Both have the BBA’s endorsement. Also contained in the bill is language to strengthen the notice given to individuals detained in state and local facilities of their right to counsel (and other legal rights) and the sanctity of attorney-client communications, while also providing for counsel to learn of a client’s whereabouts.
News from the Courts
SJC Rules that Right to Counsel Applies in Juvenile Court Transfer Hearings
The SJC issued a unanimous decision affirming the right to counsel for an adult defendant in a Juvenile Court transfer hearing, held to determine whether charges for alleged offenses that were committed before age 18 merit a trial in adult criminal court. In an amicus letter to the Court, the BBA urged the Justices to reach this decision.
Such hearings are conducted when charges stemming from conduct as a minor are brought only after the defendant has turned 19. As the BBA argued, and the SJC agreed, the hearing constitutes a critical stage in the judicial process, under the U.S. and state Constitutions, thus requiring effective assistance of counsel.
The BBA’s letter was drafted by Christina Miller of Suffolk University Law School.
SJC Reaffirms Importance of the Rule Requiring Notice to IOLTA Committee in Class-Actions
In another recent ruling, the SJC underscored the importance of compliance with a rule requiring notice to the Massachusetts IOLTA Committee before the approval of any class-action settlement that may produce residual funds, so that the Committee may address “whether it ought to be a recipient of any or all residual funds.” On behalf of nine other organizations, the BBA had submitted an amicus brief, drafted by BBA Vice President Christopher Escobedo Hart, arguing that the rule “is the mechanism through which residual funds are directed to legal aid and access-to-justice initiatives” and its notice provision “is part of a well-considered, codified effort to ensure that residual funds from class action settlements are used for the common interest.”
BBA Leaders Meet with SJC Chief Justice Budd
Chief Justice Kimberly Budd of the SJC sat down recently at the Adams Courthouse with BBA President Suma Nair, President-Elect Mark Fleming, and Vice President Chris Hart for our annual meeting. Topics covered included long-standing priorities of the Chief Justice, such as the ongoing restorative-justice pilot project, courthouse security, and judicial outreach, as well as recent developments like the DOJ proposal on bar discipline (see above). The group also touched upon two other issues that we’ve heard from several other judges about: threats to judges and the role of AI in legal practice.
New Jury Commissioner Appointed
The Justices of the SJC this month appointed Sheila Creaton Kelly as the state’s new Jury Commissioner, succeeding Pamela Wood, who is retiring this month after 20 years in the role. The Jury Commissioner and her staff oversee the random selection of a diverse and representative group of citizens to perform jury service. Attorney Creaton Kelly had worked as the Regional Chief of the AG’s Office for Central Massachusetts. Before that, she served as the Director of Operations for the Massachusetts Department of Youth Services and as Superintendent of MCI-Concord. We wish them both well!
Judicial Appointments, Confirmations, & Nominations
District Court Confirmation
Shelly-Ann Sankar was most recently First Assistant Clerk Magistrate in the Springfield District Court, responsible for assisting in the ministerial and magisterial administration of the Court. She presided over small-claims matters and show-cause hearings, conducted administrative and motor-vehicle appeals, and reviewed search warrants and applications for complaints. She graduated from Westfield State University and Western New England University School of Law.
Juvenile Court Confirmation
Mary Gallant-Cote was 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 graduated from Western New England School of Law.
Juvenile Court Nomination
Kristin Michaud has served as an Assistant Clerk Magistrate at the Somerville District Court since July 2021. In this role she conducts probable cause hearings, reviews and issues arrest and search warrants, and presides over small claims, civil motor vehicle infractions, and municipal ordinance matters. She also serves as Chair of the Somerville District Court Education Committee. Prior to earning her law degree, she served for four years as a Victim Witness Advocate at the Middlesex DA’s Office, where she assisted victims and witnesses in navigating the complexities of the court system. She earned a Bachelor of Arts from Fairfield University and Juris Doctor from Northeastern University School of Law.
Probate & Family Court Confirmation
Mary Ferriter practiced for 20 years with Esdaile Barrett & Jacobs, representing 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. A graduate of Lesley University and Suffolk University School of Law, she also holds a Master of Science in Public Administration from the McCormack Institute of Public Policy at UMass Boston.
Boston Municipal Court Confirmation
Michelle Licciardi practiced law in the Commonwealth for over 27 years, including the past 22 years running a solo practice focused on criminal defense and a wide array of civil-litigation matters, while also serving as a Bar Advocate representing indigent clients in criminal matters in the Juvenile, District, Boston Municipal, Superior, and Appeals Courts. From 2001 to 2003, she was an ADA in Middlesex County, handling cases at all stages of criminal prosecution in the District Court. She holds a Bachelor of Science from Suffolk University and a J.D. from Suffolk University Law School.
In Memoriam
Ray Young Dies at 98
I want to use this space to bid farewell to Ray Young, a giant of the Boston legal community whose seven-decade legal career included a stint as BBA President and many sessions patiently explaining the Uniform Trust Code to me when I worked in the Legislature. Ray passed away last month at 98.
In a 2010 interview with Massachusetts Lawyers Weekly, he cited enactment of the Uniform Probate Code as the highlight of his career and named “The Verdict” as his favorite book. (“Paul Newman was playing me in the movie,” he told them.) A BBA profile upon his retirement several years ago labels him “proud to have maintained his reputation as a ‘gentleman,’ even during cases where he represented parties involved in highly personal and contentious disputes over matters such as inheritance.
Condolences to his family, his colleagues, and the countless attorneys he mentored, educated, charmed, and served as a role model for along the way.
Alan Trustman, Lawyer and Screenwriter (1930-2026)
“It was a sense of disgust as a moviegoer that inspired Alan Trustman, a corporate lawyer at a white-shoe Boston firm [I will let you guess which one (see below)], to take a shot as a Hollywood screenwriter in the mid-1960s.” So begins the New York Times’ recent obituary, which goes on to say, “Although he had never written ‘a line except for contracts and legal briefs’ … he spent every Sunday afternoon for two months hammering out a script about a bank heist while watching his beloved New York Giants play football. That hobbyist endeavor eventually evolved into the screenplay for ‘The Thomas Crown Affair’, a stylish and successful 1968 caper starring Steve McQueen and Faye Dunaway.
That’s all this time. Kudos to those who knew that Alan Trustman, a Brookline native, was a partner at Nutter—like his father before him, Benjamin Trustman. He wrote six other films, including “Bullitt,” for which he earned an Edgar. Consider watching one of them this weekend in tribute.
