Issue Watch with Mike Avitzur: What’s Hot in the Courts, Legislature and Policy World

Issue Watch is a monthly newsletter distributed to BBA members. For more on joining the BBA, visit bostonbar.org/join-now/. 

Welcome! I’m Mike Avitzur, the BBA’s Government Relations Director. In this month’s Issue Watch, we’re focusing on final Supreme Court decisions, the ins and outs of the state budget, legislative updates, rules changes and more. Without further ado, here’s the latest on…

Final Verdicts

The Supreme Court wrapped up its 2023-24 term early this month, and while a lot has happened since then, it’s worth revisiting a couple of their final decisions that will have a major impact on the practice of law:

Purdue Pharma

In a 5-4 ruling, the Court scuttled a national bankruptcy settlement that would’ve seen members of the Sackler family kick in $6 billion over opioid claims, in exchange for a release from liability to non-parties. For more on the ramifications of this ruling:

• Check out our webinar on the decision—now available online.
• Read insights on potential “aftershocks” from two members of the BBA’s Bankruptcy Section, Adam Ruttenberg and Rick Levine.

Relentless

In a 6-3 decision that (unlike the Purdue case) followed familiar ideological lines, the Court scrapped its 40-year-old “Chevron deference” policy, which had required courts to defer to federal regulatory agencies in areas of their expertise. This will open the floodgates for untold numbers of challenges to regulatory policies. Buckle up – several BBA sections are already trying to predict implications for the future. Watch this space…

Budget Breakdown

The Fiscal Year 2025 budget, signed by Governor Maura Healey, addressed several BBA priorities —including a $2 million increase for civil legal aid funding through MLAC, full funding for the Trial Court and CPCS, and money for a text-messaging system to remind litigants of their court dates. We’re especially grateful to the Governor and the Legislature for their support! Beyond these appropriations, here are three policy items we asked for that will make a difference:

Access to Counsel Program
The budget bill creates a new program for income-qualified tenants and owner-occupant landlords in housing cases. The BBA has been a member of the coalition supporting this, as part of our commitment to Civil Gideon.

Tax-Lien Foreclosure Reforms
Tax-lien foreclosure laws have been reformed to end home-equity theft. We, along with other organizations, urgently advocated for these changes to the Governor following the unanimous Supreme Court ruling in Tyler, which declared a similar Minnesota law unconstitutional.

Elimination of After-Hours Bail Fees
Detainees will no longer have to pay a special fee to be bailed out after hours, ending a practice that had been codified in statute but added to the burden on those who are, after all, innocent until proven guilty.

Legislative Update

As the sun rose over the Golden Dome this morning, the state legislature was still in session, before finally closing the books on formal sessions for 2023-24 about 10am (despite the rule requiring that they wrap up by yesterday evening). And while some big-ticket items that went unfinished drew headlines, we were disappointed that some BBA priority bills were similarly not taken up in time…

• Child-custody enforcement
  We’re the only state not to have joined this interstate compact, honoring custody agreements when parents move—something an Appeals Court ruling from just last month called out the Legislature for.
• UIDDA
  This bill would modify the rules for depositions and discovery across state lines, joining another interstate compact.
• Trust decanting
  We’re aiming to modernize and clarify how and when this can be done, since statutes and case law offer limited guidance.
• UCC
  This legislation adopts model language from the Uniform Law Commission that addresses new issues like digital assets and electronic money.
• Voidable transactions
  Honestly, I don’t have nearly the room here to properly explain this bankruptcy bill (#IYKYK), but it would establish choice-of-law standards, remove the safe harbor for strict foreclosures, and fine-tune the test for insolvency. (How did I do?)

As the Legislature shifts into informal sessions for the rest of the calendar year—with bills advancing only through unanimous consent—we will explore whether at least some of these can be enacted through this route.

Rewriting the Rules

We’re always keeping one eye on proposed rules changes from the courts (you can, too), and there are a few recent developments of note:

No BBO name change … for now

The SJC rejected a proposal to change the name of the Board of Bar Overseers to Board of Bar Oversight, addressing the racist historical overtones of the current term. With the help of our DEI Section, we submitted a letter applauding the recognition of the need to move on from “overseers” but recommending a term that is further removed from its negative connotations. MLW wrote about the decision, citing our position and Chief Justice Budd’s letter—which nevertheless, like the BBA’s letter, expressed a “desire to undertake efforts to make sure that lawyers of all backgrounds know they are a valuable part of our legal community.”

BBA raises concerns about new standards for investigating clients

In response to an SJC committee’s proposal to update Rule 1.16 of the MRPC, our Bankruptcy Law and Criminal Law Sections crafted joint comments asking the SJC to hold off on the changes. The concern is that these changes will undermine attorney-client relationships across practice areas and risk ensnaring lawyers in ethical trouble with little discernible benefit. As we always do, we shared these section comments with the SJC:

Requiring attorneys to continually investigate their clients in this way may lead to careful lawyers seeking to withdraw as a result of innocent activity and introduce unwarranted friction into the attorney-client relationship, all for very limited benefits given the apparent infrequency of legal representation being used to facilitate support of terrorism or money laundering.

Stay tuned for more updates, and don’t hesitate to reach out if you have any questions or need further information. See you next month for another edition of Issue Watch!