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Policy Library

Amicus Committee Program Year in Review

June 11, 2015

With our 2014-15 program year coming to an end, we would like to take a moment to reflect on the extremely productive past ten months for Ethics and Amicus, the two committees overseen by the Government Relations Department.  Both groups are comprised of hard working and highly-regarded attorney volunteers.  Steve Kasten and Ellen Messing co-chair the Ethics Committee, and Mark Fleming chairs the Amicus Committee.

Amicus Committee

The BBA files amicus briefs primarily on issues related to the practice of law or the administration of justice and accepts requests for such submissions through our website, which also lays out the detailed policy requirements.  We have a strong history of providing briefs on important issues, ranging from protecting marriage equality to defending attorney client privilege, and our arguments are often cited during oral arguments and in final decisions.

The BBA’s Amicus Committee had a busy program year.  They signed onto one brief, drafted an original brief in another case, and closely reviewed numerous submissions that ultimately didn’t make the cut for a host of reasons.

The Amicus Committee’s first brief this year was In Re Guardianship of V.V..  In this case, the petitioner was a young woman who originally sought to vacate a guardianship decree that had given sole custody of her child to her own grandmother.   The mother represented herself during the Probate Court proceedings, while her grandmother had legal counsel.  The state was not involved in this strictly private proceeding.  The underlying case was rendered moot when the child was returned to the mother before appellate review.  However, the case went forward because of the significant legal questions it raised, and the SJC requested amicus briefs.

The BBA signed onto a brief authored by a team from the Massachusetts Law Reform Institute, Russell Engler of New England Law Boston (and our task force on civil legal aid), and a group of Nutter, McClennen & Fish lawyers, including former BBA President Mary Ryan.  We were joined on the brief by a host of legal and social organizations, including the MBA, WBA, Greater Boston Legal Services.  The brief argued for a right to counsel appointments for indigent parents in private guardianship proceedings and quoted extensively from three BBA task force and working group reports, including our recent Investing in Justice report on civil legal aid.

The brief argued that appointment of counsel in these cases is required under the due process and equal protection provisions of the Massachusetts Constitution.  It also made policy arguments that appointing counsel in these cases promotes a sound child welfare system and follows the national and state policies for counsel appointments generally.  In addition, the brief pointed out the incongruity that in essentially identical cases where the Department of Children and Families is a party, the right to counsel already exists for indigent parents, so it makes little sense that they should be denied counsel when facing a private party.

Following oral argument in January, the SJC took the position, as the amicus brief argued, that a right to counsel exists in these cases.  The full decision is available here.  We were pleased to be part of the brief that contained the argument that ultimately carried the day and pleased that the SJC took a stand promoting access to justice.

The Amicus Committee also drafted a brief in the case of Wong v. Luu.  Though the facts are complex and often somewhat unclear from the record, the appeal arises from two orders issued by a Superior Court Justice for sanctions of $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based Asian food markets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

Several of these other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached both his duties of good faith and fair dealing to opposing counsel and his duty of candor to the Court.  As a result, the Justice concluded, the Court had been materially prejudiced.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, of Sherin and Lodgen LLP, to draft the BBA’s brief.  The brief requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order. In addition, it argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

While we are still waiting on a final decision from the SJC, it is clear that our brief played an important role in oral argument as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and later the 10:00 mark when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 mark when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), the Superior Court still did not have standing to sanction the attorney for his actions.  Our brief and the appellant’s attorney argue that it does not.

We look forward to a final decision from the SJC and will keep you updated.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association