Policy Library

Issue Watch #04 – With Mike Avitzur: What’s Hot in the Courts, Legislature and Policy World

September 27, 2024

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

Happy fall, everyone! Between pro bono month and some headline-making cases at the SJC (including one involving a $70K Tiffany ring—yes, really!), there’s plenty to keep you reading this month. But first, we must address a critical issue:

BBA CONDEMNS POLITICAL ATTACKS ON HAITIAN COMMUNITY
Reaffirms Commitment to Stand with All Immigrants

As a non-partisan, non-profit organization, the BBA takes no direct role in campaigns for elective office, but we are compelled to speak when public rhetoric undermines the principles core to our mission: access to justice, equal protection, civil rights, and the rule of law.

Such is the case with the recent disinformation against Haitian immigrants in Springfield, Ohio. Simply put, these comments, and this targeting, must end, because of the harm they are causing to our immigrant neighbors—and because such actions can create a vulnerable subclass, undermining the social cohesion that makes democracy possible.

To be sure, immigration policy is a legitimate topic of political debate. However, this disinformation has harmed the people of Springfield and reflects a broader, perennial, and corrosive effort to demonize immigrants nationwide.

As with all of our positions on immigration issues, we make this statement guided by the BBA’s Immigration Principles, which affirm our commitment to standing with all immigrant communities, in Boston and beyond, and recognize the central—indeed, indispensable—role immigrants play. In this instance, we point to Principles #1 and #2:

  1. Immigration is a defining feature of the American experience. Immigrants play a critical role in the civic, economic, and cultural life of our city, state, and country.
  2. No person’s rights or human dignity should be devalued on the basis of immigration or citizenship status.

Ohio may be far from Boston, but the impact is being felt across the country. In our region—which is home to one of the largest Haitian populations in the US—we will continue to proudly partner with organizations that provide legal services and other support to immigrants.

Read more about the BBA’s immigration advocacy:

Pro Bono Month

Following tradition, the Council voted this week to endorse a resolution declaring that October is Pro Bono Month at the BBA.

Council member Anita Sharma, executive director at PAIR, presented the resolution, which “commends Boston attorneys for their ongoing pro bono contributions and reminds members that by engaging in pro bono work and providing financial support they can make a significant difference in the lives of Boston’s poor who would not otherwise have access to the legal system.”

The BBA has a broad slate of pro bono opportunities planned for the month, so visit our calendar for ways you can get involved. You can also learn about some featured programs this year in an interview with Noah Williams—the BBA’s Diversity, Equity, Inclusion and Belonging (DEIB) & Community Service Programs Coordinator—who manages this effort.

SJC Resumes Oral Arguments

The SJC returned to its oral-argument schedule again this month, with a couple of noteworthy cases on their docket that raise significant issues of general interest (read: not just for lawyers!) and one that’s just kind of juicy—even if few of us, I hope, can relate directly. Here’s an ICYMI/FYI round-up on those—none of which the BBA took part in…

Commonwealth v. Du
If undercover police use a cell-phone app to record a conversation, does that violate the wiretap statute? And if so, must the video be suppressed as well as the audio?

Much has been made of the need to update the state’s wiretap law, which was enacted in 1968 and continues to be a regular subject of SJC cases, as new technologies emerge (one of which was argued in April).

The BBA supports modernization of the law to cover developments in the field and an expansion of the offenses included in the law, together with stricter reporting requirements on the use of wiretaps.

The Boston Globe filed a curtain-raiser on this case:

In the fall of 2019, Boston police began targeting a suspected drug dealer in East Boston, after discovering his number on the cellphone of a man who died of a fentanyl overdose. An undercover officer equipped with cutting-edge technology arranged several drug buys outside a laundromat and in a pharmacy parking lot. He video-recorded each encounter with a cellphone app and then livestreamed it to officers conducting surveillance nearby.

Trustees of Boston University v. Clerk-Magistrate of the Cambridge District Court:
Should show-cause hearings before a clerk-magistrate—and the associated applications for criminal complaint—be public, where charges stem from a high-profile federal prosecution of a prostitution ring, with public officials among the accused?

No surprise that the Globe has also been covering (and editorializing on) this case, in which it’s one of the petitioners arguing for access:

Cambridge police, working with [Acting US Attorney] Levy’s office, filed for criminal complaints last December in Cambridge District Court against 28 men, alleging they paid for sex at the brothels. Because the alleged crimes are misdemeanors that didn’t result in arrests at the time they occurred, the court sent the 28 men summonses for probable cause hearings, which are typically held before a clerk-magistrate behind closed doors.

Well before this case emerged, the Globe published a 2018 Spotlight series on the process for show-cause hearings—which are conducted behind closed doors and without a right to counsel for the defendant. The series presented the rationale for this system (said to be unique to Massachusetts), which was set up to dismiss unworthy cases before they become public records—but also argued that they produce “uneven outcomes and apparent favoritism to the privileged and powerful.”

Johnson v. Settino
In the case of a broken wedding engagement, should courts continue to apply a “conditional gift fault-based approach” in determining whether the ring should be returned to the donor?

Or as the Globe headlined its story, “Who gets the diamond in a breakup? SJC hears case over $70K Tiffany ring.”

Johnson and Settino had been discussing marriage for months before August 2017, when Johnson went to Tiffany & Co. in Boston and spent more than $70,000 on an engagement ring, according to legal filings. When he gave her the ring, the scene was idyllic. They sat at a corner table at a Harwich resort overlooking Pleasant Bay. The room of diners applauded them, and they had a champagne toast.

Needless to say, the relationship soured (after he found some questionable texts to another man on her phone—which may prove relevant, as you’ll see), and the fate of the ring has been tied up in litigation ever since.

Before the Court is the question of whether to maintain the 1959 rule that the ring must be returned if the engagement is “terminated without the fault of the donor.” Is the rule outdated and sexist (as men still tend to be the engagement-ring buyers in opposite-sex couples), applying an unnecessary exception to the statute that bars claims based on “breach of contract to marry”? Should Massachusetts adopt the majority rule, requiring that a ring be returned to the buyer regardless of fault? Does it matter that there’s no evidence of anything untoward behind those texts? Who’s at fault here anyway? Stay tuned

Meanwhile, October’s oral arguments include the town of Milton’s challenge to the Attorney General’s enforcement of the MBTA Communities Act against it. Oh, and some woman from Mansfield is asking an SJC single justice to rule that double jeopardy bars her retrial on a murder charge.

As always, you can watch either live or archived oral arguments before the SJC on Suffolk Law School’s website.

More From the Courts

Justice Amy Blake Nominated to Lead Appeals Court
On Wednesday, Governor Maura Healey nominated Justice Amy Blake to lead the Appeals Court, following the retirement earlier this month of Chief Justice Mark Green. Justice Blake has served on the Appeals Court since 2014, after six years on the Probate & Family Court bench. A graduate of, and lecturer at, New England Law | Boston, she is a former co-chair of the Board of Overseers of the Boston Bar Journal.

Openings on Clients’ Security Board
Are you interested in helping to preserve the public’s trust in the legal profession by reimbursing clients whose lawyers have (I’ll be blunt) stolen from them? I ask because the SJC is seeking applications from attorneys interested in appointment to the Clients’ Security Board. The Justices will be making three appointments to this body, whose seven members serve as public trustees of the Clients’ Security Fund, reimbursing clients by tapping a portion of annual bar fees. Note the deadline: October 9th!

Judicial Evaluations
Here’s another way you can help maintain confidence in the Massachusetts legal system: If you receive an e-mail in October asking for your participation in the SJC’s Judicial Performance Evaluation Program, please do take part! After a COVID-related suspension, the program is resuming with this solicitation for input on judges who sat within the past two years in any Essex County Court, Middlesex County or Chelsea District Court, or the BMC.

  • The questionnaire solicits attorneys’ views on judicial qualities, including legal knowledge, temperament, control of the courtroom, treatment of courtroom participants, and clarity of communication.
  • The email links to an encrypted site where all responses are anonymous and confidential. Results are compiled into a report shared with each judge for discussion with their Chief Justice, to foster professional development and self-improvement.
  • As the SJC notes, the success of this program depends on timely responses and a high rate of participation to provide judges with fair and comprehensive feedback about their performance.

Worth a Look

Our Government Lawyers Network kicked off its program year this month with a Fall Mixer, featuring a discussion with Kate Cook, Chief of Staff in the Healey-Driscoll Administration. You can find photos from the event—and from our Solo & Small Firm Network’s Fall Social that same night—on our web-site.

Members in the News

David Meier, Todd & Weld LLP
In response to the tragic death of State Police recruit Enrique Delgado-Garcia after suffering an injury in training, AG Andrea Campbell named veteran criminal-law practitioner David Meier, chair of Todd & Weld’s government investigations and criminal-defense practice group, to lead an independent investigation into the circumstances surrounding the incident. Meier—alongside future BBA President Marty Murphy—co-chaired a BBA task force on wrongful convictions, which led to the adoption of a state law on post-conviction forensic testing.

New Rules

New IOLTA Rules in Effect
As we’ve talked about here before, there are new rules in place, as of September 1, governing unidentified and unclaimed funds in IOLTA accounts. To stay on top of the changes, we’re working with the Massachusetts IOLTA Committee to share their guidance (including a video tutorial!) on what it all means for practitioners.

Totally inadequate summary: Attorneys may now remit undistributable funds to the IOLTA Committee any time after making reasonable efforts to identify or locate the client or owner to whom the funds belong—and must make reasonable efforts and remit undistributable funds within three years after discovering them.

Fun fact: This all follows the SJC’s Olchowski ruling that undistributable IOLTA funds should be transferred to the IOLTA Committee.

Walk to the Hill

Walk to the Hill for Civil Legal Aid, one of the largest lobby days at the Massachusetts State House, will return on January 23, 2025, so please plan to join hundreds of lawyers and other legal-services supporters in rallying to support the budget line-item for MLAC, the state’s largest provider of funding for legal-aid agencies. In addition, you’re welcome to drop by the BBA that morning for our pre-Walk breakfast, to grab some refreshments and brush up on your talking points! More details to follow, so watch this space!

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!