updated: August 31, 2011
Boston Bar Association        

BBA Amicus Briefs


Fathers & Families, Inc. v. Chief Justice for Administration and Management

Amid a legal challenge to the Massachusetts Child Support Guidelines, the Boston Bar Association filed an amicus brief in the Supreme Judicial Court of Massachusetts arguing these and other points:

  1. The process whereby Massachusetts Child Support Guidelines have been promulgated is in compliance with the Massachusetts Constitution.
  2. Striking down the Guidelines. . .
    • Would lead to uncertainty, instability, and inefficiency in awarding child support;
    • Could jeopardize Federal Funding for the Commonwealth's Public Welfare Programs.

    The Boston Bar Association’s amicus brief was drafted by Frances M. Giordano, Kelly A. Leighton, Gayle-Stone Turesky, Lee Peterson, and Alexander D. Jones.


R.E.B.A. v. N.R.E.I.S.
Following a decision by the U.S. District Court for the District of Massachusetts in which the Real Estate Bar Association for Massachusetts, Inc. (REBA) was found liable for violating 42 U.S.C. Section 1983, and ordered to pay $904,076.17 in legal fees to a real estate conveyancing business, the Boston Bar Association today announced that it has filed an amicus brief in the First Circuit of Appeals asserting the First Amendment rights of all litigants, including bar associations, to petition courts for the redress of grievances that have a reasonable basis in fact and in law – regardless of whether the courts ultimately grant or deny relief on the merits.

REBA v. National Real Estate Information Services (NREIS) and NREIS Inc., began in Suffolk Superior Court in 2006 with REBA’s claim that NREIS engaged in the unauthorized practice of law by providing certain real estate conveyancing services. NREIS subsequently removed the case to federal court, and counterclaimed against REBA, arguing that REBA’s claim, if allowed, would deprive NREIS of its rights under the Dormant Commerce Clause to do business in Massachusett s.

The BBA’s amicus brief, drafted by Jonathan Albano, a partner at Bingham McCutchen, LLP, emphasizes that the BBA does not seek to be heard on whether NREIS actually engaged in the unauthorized practice of law or whether prohibiting NREIS from conducting its business in Massachusett s would violate the Dormant Commerce Clause.  Instead, the BBA’s brief focuses on the First Amendment rights of private parties, including bar associations, to file reasonably based claims for judicial relief without being held liable for damages or attorneys fees.

The brief concludes that if the District Court’s judgment is upheld, private citizens who are granted standing by legislation to bring claims against private individuals but who fail to prevail on such claims would appear to face a similar risk of being held “state actors” responsible for attorneys fees awards.


Paul Sperounes v. Alfred P. Farese Jr. 
The BBA filed an amicus brief in the case of Paul Sperounes v. Alfred P. Farese, Jr., Trustree of ALPHFA Realty Trust, a Malden District Court case concerning whether a District Court has discretion to retain civil cases in excess of the statutory damages limit of $25,000.  The brief is of the position that the conflict between different portions of the statute, and between the statute and the District Court’s own interpretation of the amendments, should be resolved so as to provide clarity to litigants.  Finding the limit to be jurisdictional, as opposed to procedural, provides greater clarity.  However, whether the SJC finds that the $25,000 limit is jurisdictional or procedural, the SJC should provide guidance so that the District Court judges can determine which cases should be retained.


Bismullah v. Gates   
The BBA signed on to an amicus brief drafted by the Association of the Bar of the City of New York in Bismullah v. Gates, a case pending in the U.S. Court of Appeals for the D. C. Circuit.  The amicus brief was filed on behalf of a group of detainees at the U.S. Naval Base at Guantánamo Bay, Cuba, seeking a protective order governing proceedings against Respondent Secretary of Defense Robert M. Gates in order reasonably to protect access to classified information while addressing communications between the detainees and their counsel.  The brief argues that legal representation is impaired if lawyers are not able to visit their clients as they find necessary to obtain the information they need and to consult with and inform their clients, as well as to establish the trust necessary to effective representation. 


The Hanover Ins. Co. v. Rapo & Jepsen Ins. Svcs., Inc. and Arbella Mutual Ins. Company
Consistent with its long-standing support for preserving attorney-client privilege, the BBA filed an amicus brief in Hanover Ins. Company v. Rapo & Jepsen Ins. Services, Inc. and Arbella Mutual Ins. Company.  This interlocutory appeal from the entry of a discovery order in an automobile dispute between insurers presents issues regarding attorney-client privilege and work product doctrine in the context of a joint defense agreement: whether Massachusetts law recognizes a joint defense privilege and whether an oral joint defense agreement is enforceable.  The brief supports the Appellants’ position that Massachusetts recognizes the common interest doctrine, sometimes known as the joint defense privilege.


American Civil Liberties Union, et al. v. National Security Agency, et al.
A challenge to the NSA’s wiretapping program on the grounds that it violates attorney-client privilege. The BBA signed onto this amicus brief drafted by the Association of the Bar of the City of New York in support of the preservation of attorney-client privilege.


Suffolk Construction Co. v. Commonwealth of Massachusetts, Division of Capital Asset Management (DCAM )
Attorney client privilege and public records law - the BBA supported DCAM’s position on the policy ground that documents of government agencies/employees should enjoy protection from disclosure under the public records law if the documents are subject to attorney-client privilege.


Superadio Limited Partnership v. Walt "Baby” Love Productions
Issue of whether an out-of-state attorney representing a client in an arbitration proceeding in Massachusetts constitutes the unauthorized practice of law and if so, whether the arbitration award should be vacated. The BBA brief made the following two points: 1) It is not the “unauthorized practice of law” for a lawyer admitted in another state to represent a client in an arbitration sited in Massachusetts when permitted to do so by the arbitrator or arbitral tribunal; and, 2) Regardless of whether it constitutes the “unauthorized practice of law,” the fact that a prevailing party in an arbitration was represented by out-of-state counsel is not grounds for vacating an arbitral award.


U.S. v. Darryl Green, Branden Morris, Jonathan Hart, and Edward Washington
Federal death penalty case and the importance of diverse juries and revisions to the Jury Selection Plan. This brief was submitted by the BBA in support of an order issued by Judge Gertner that imposed measures to ensure adequate minority representation on the jury. The BBA brief stresses the importance of having representative juries.


Comfort et al. v. Lynn School Committee et al.
Pertains to the legality of a desegregation plan implemented by the Lynn School Committee.  By signing on to an amicus brief in support of the plan, the BBA reiterated its position that segregated schools are unacceptable, and that children learn best in a diverse environment.  In Comfort v. Lynn School Committee, the U.S. District Court in 2003 upheld the legality of a plan adopted by the Lynn School Committee in 1989 to ameliorate within its public schools the racial tensions and related misconduct in a school system which reflected the pattern of residential racial segregation.  That plan assigns children to their neighborhood schools, but allows them to transfer, so long as the transfer does not exacerbate segregation in either the school the children are seeking to leave, or the receiving school.  In October 2004, a 3-judge panel of the 1st Circuit Court of Appeals found the plan to be illegal.  In June 2005, the 1st Circuit Court of Appeals en banc upheld the Lynn desegregation plan.


Sandra and Roberta Cote-Whitacre et al. v. Department of Public Health et al.
Prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state. Consistent with its position in Goodridge that discrimination against gays and lesbians is unacceptable, the BBA filed this amicus brief supporting the plaintiffs' claims that the Department of Public Health’s enforcement of M.G.L. c. 207, §§ 11-12 to prevent city and town clerks from issuing marriage licenses to same-sex couples residing in other states violates provisions of the United States and Massachusetts Constitutions.


Lavallee et al v. The Justices of the Hampden Superior Court and Carabello et al v. The Justices of the Holyoke District Court
Bar advocate compensation – the BBA submitted an independent amicus brief outlining the chronic failure of the Commonwealth to adequately fund criminal defense services for indigents.  The brief urges increased rates of compensation as necessary to assure competent criminal defense services for indigents


Grutter v. Bollinger
Michigan affirmative action case - The BBA reiterated its position that race conscious admission policies are vital to integrating the legal profession and concluded that race conscious admission policies are positive, necessary, and constitutional.  Not having such policy would harm the flow of integration in the legal profession.


Goodridge v. Dept. of Pub. Health
Same sex couples right to marriage - The BBA filed this brief in support of gay marriage as a civil rights issue stating that discrimination against gays and lesbians is unacceptable and unconstitutional.


Williams, et al. v. United States
A petition for a writ of certiorari to be granted by the US Court of Appeals to review the constitutionality of Congresional legislation.  That law withheld, from federal judges, annual cost-of-living allowances that were provided for under the Ethics Reform Act of 1989.  The BBA signed onto the brief due to its concern about the damage caused to an independent judiciary by inadequate compensation.


U.S. v. Legal Services of New York City
Attorney client privilege for legal services recipients - The BBA’s position in this brief was that disclosing information protected by attorney-client privilege to the Inspector General of the Legal Services Corporation to discover the names of legally indigent clients coupled with their specific motives for seeking legal assistance defeats the purpose of the privilege.


Donald K. Stern v. Supreme Judicial Court, et al.
Case concerns rules that apply constraints to the behavior of federal prosecutors. The BBA stated that the adoption of Rule 3.8 f was a proper exercise of the district court to regulate the conduct of attorneys appearing before it. Furthermore, Rule 3.8 f is a valid exercise of the district court’s power to protect the attorney client relationship.


Advisory Opinion on Tax on Legal Services
Following a request from the Governor for an advisory opinion on proposed legislation to extend the sales tax to legal services, the BBA and the MBA submitted an amicus brief arguing that such an extension violates both the Massachusetts and United States Constitutions.

Commonwealth v. Abimael Colon-Cruz, Jose Colon and Miguel Angel Rosado
The Boston Bar Association filed an amicus brief in Commonwealth v. Abimael Colon-Cruz, Jose Colon and Miguel Angel Rosado, challenging the constitutionality of the Massachusetts death penalty statute enacted in 1982. The brief also argued imposes “devastating burdens on the Bar,

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