Amicus Briefs

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice.

Requests for the BBA to draft or sign on to an amicus brief must be submitted to the Director of Government Relations using our official form. Upon receipt of the Request, the Director will promptly provide the Request to the Committee.

Please note that the BBA will not consider any Request to file or join an amicus brief unless there is adequate time to consider the matter. For amicus briefs to be prepared by the BBA, three months is generally needed to obtain the requisite approvals and prepare the brief for submission. For amicus briefs prepared by another party to be joined by the BBA, two months is generally needed to obtain the requisite approvals, with the draft brief to be submitted to the BBA no more than one month before the deadline for filing the amicus brief.

January 2020

In re Olchowski [SJC-12730]

This case has to do with a dispute between the Massachusetts Interest on Lawyers' Trust Accounts (IOLTA) Committee and the State Treasurer relating to unidentified funds in IOLTA accounts. The BBA brief sided with the IOLTA Committee, which argued that unidentified funds should be remitted to the Committee instead of the Treasurer. 

The brief argued that the Abandoned Property Act was never intended to address unidentified IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985. Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences—“a critical aspect of the practice of law”—and jeopardizing the security of client information.

December 2019

Department of Revenue v. Joshua Grullon [SJC-12784]

In 2008, as part of our Gideon’s New Trumpet report, the BBA reiterated and extended our support for a broad expansion of the civil right to counsel to adversarial proceedings where particular basic human needs are implicated. That included contempt hearings in which the defendant faces incarceration, “[b]ecause of the potential loss of liberty at stake”. In the case of DOR v. Grullon, we joined in a brief with the Massachusetts Bar Association (MBA), asking the justices to find that, under the federal and state constitutions, as well as case law, due process requires the appointment of counsel for an indigent defendant facing attorneys for the Commonwealth and a realistic risk of incarceration in a civil contempt proceeding.

Here, the defendant-appellant—a partially disabled, indigent veteran—was incarcerated for non-payment of child support on a civil contempt, after having made unsuccessful attempts to modify his order to reflect a loss of income. Though he was represented on appeal by Veterans’ Legal Services (“VLS”), the petitioner was then acting pro se (with limited VLS guidance) in the matter, which had been brought by the Department of Revenue (DOR). As argued in the BBA's Gideon’s New Trumpet report, this issue is important for access to justice because “[p]oor defendants are vulnerable to incarceration for civil contempt as they may not have the resources to satisfy the court order.” The instant case arose from a family-law matter, but, as we learned in consultation with our sections, contempt hearings involving indigent alleged contemnors are also sometimes seen in other types of proceedings, such as bankruptcy.

October 2019 Carrasquillo v. Hampden County [SJC 12777]

Citing an on-going crisis in the Commonwealth’s criminal courts, the BBA filed an amicus brief urging the SJC to take decisive action to address a shortage of attorneys available to represent indigent criminal defendants, as is constitutionally required.

The brief traced the long history of underfunding of such defense work, including the so-called Lavallee protocol, instituted by the Supreme Judicial Court (SJC) as part of a 2004 case by that name. Lavallee requires the Commonwealth to release from pretrial detention all indigent defendants who do not receive a lawyer within seven days, and the courts to dismiss without prejudice the cases of those indigent defendants who do not receive a lawyer within 45 days. 

The Court agreed that the proper solution to the prospect of a recurring constitutional crisis stemming from lack of available counsel for criminal defendants through CPCS is to increase the statutory hourly rate of pay for private attorneys who take on those cases, but they declined our recommendation that they consider doing so under the SJC's superintendence authority, instead urging the Legislature to act on the issue.

August 2019 Rawan v. Continental Casualty Company [SJC 12691] 

The SJC accepted our argument that an insurance company must honor a so-called “consent to settle” clause that is included in certain professional-liability policies, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear.

Under L. G. c. 176D, §3(9)(f), it is considered an unfair claim settlement practice for a liability insurer to fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. Here, an engineer gave only limited authority to his insurance company to make settlements, pursuant to a “consent to settle” clause in his policy. After prevailing at trial, the plaintiffs pursued a claim against the insurer under Chapter 176D, arguing that the insurer had violated its statutory obligation to act reasonably and in good faith to pursue a settlement, once its client’s liability had become clear. However, while noting that they do not absolve an insurer of its duty to investigate and make recommendations to its insured, the Court declined to find such clauses unenforceable as against public policy.

April 2019 Commonwealth v. Johnson [SJC 12673]

In the case of Commonwealth v. Johnson, the defendant completed his Massachusetts sentence and is not on parole or probation. He is, however, currently incarcerated in Florida for failing to register as a sex offender, as required as a result of his conviction here. The BBA’s brief focuses exclusively on citing analogous recent rulings from the SJC and elsewhere, to argue that his liberty is “otherwise restrained” where his sex-offender registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

October 2018 Commonwealth v. Lugo [SJC-12546]
In the case of Commonwealth v. Johnson, the defendant completed his Massachusetts sentence and was not on parole or probation. He was, however, incarcerated in Florida for failing to register as a sex offender, as required as a result of his conviction here. The BBA’s brief focuses exclusively on citing analogous recent rulings from the SJC and elsewhere, to argue that his liberty was “otherwise restrained” where his sex-offender registration requirements create affirmative burdens that are tantamount to the conditions placed on probationers and parolees, with the same potential of immediate arrest and incarceration for failure to comply.

February 2018 Commonwealth v. Lutskov [SJC 12411]
The Boston Bar Association filed an amicus brief in this case after the Supreme Judicial Court solicited briefs in November with the question: “where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in state prison (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights.” Our brief argues that the application of adult mandatory minimum sentences to juveniles is a violation of Declaration of Rights.

 April 2018 U.S. v. Brian Joyce
The BBA filed an amicus brief opposing the government’s motion to disqualify defense counsel in the matter, who had represented Joyce prior to his indictment on various corruption and racketing charges and submitted answers to the State Ethics Commission in an investigation of Joyce’s potential misconduct. The motion to disqualify raised serious concerns across the legal community, the BBA brief echoes these concerns, asserting that the motion to disqualify should be denied on both Sixth Amendment and First Amendment grounds and warning that, if granted, it could endanger the rights of all criminal defendants to freely share information with an attorney, the attorney’s ability to make statements on the client’s behalf, and the expectation that an attorney will be able to represent their client through the entirely of their criminal justice proceedings.

While a separate brief expounded on the Sixth Amendment arguments, our brief acknowledged these concerns but honed in on another important issue: the First Amendment rights at stake, including the right of all attorneys to petition the government and to speak publicly on behalf of clients. Read more about the case and the BBA’s brief here.

 April 2018 Committee for Public Council Services vs Attorney General
The BBA filed an amicus brief in support of measures to address future cases involving widespread prosecutorial misconduct in the litigation arising from the Amherst Drug Lab scandal, where chemist Sonja Farak had stolen and tampered with drug samples and tested evidence while under the influence of drugs for years, and where two prosecutors failed to disclose all relevant exculpatory evidence in the matter. The BBA filed its brief in response to the third question of the Single Justice’s Reservation and Report, as to whether additional prophylactic measures are appropriate. The BBA believes such measures are indeed appropriate, and necessary, to protect the integrity of the Commonwealth’s justice system.

The brief supports the Petitioners’ and Attorney General’s positions that Court should make permanent the Bridgeman protocol, the disclosure obligations for lawyers’ misconduct that may have tainted a case, and for disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). In addition to these measures, the brief posits that “[the] Court should make clear that the prosecutor’s primary ‘responsibility [is that] of a minister of justice and not simply that of an advocate,’ S.J.C. Rule 3:07, Massachusetts Rule of Professional Conduct (MRPC) 3.8, Comment ¶[1], by establishing, through standing order…a mandatory reporting obligation for every prosecutor who has knowledge or credible information of misconduct by anyone, lawyer or non-lawyer, on the prosecution team.” Read more about the case and the BBA’s brief here.

 10/2016 Bridgeman v. District Attorney for the Suffolk District
The Boston Bar Association filed an amicus brief in this, the fourth case related to the actions of Hinton Drug Laboratory chemist Annie Dookhan, who tainted evidence in thousands of drug cases. Our brief argues for a global solution that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of at least one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges. Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct. It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice. Read more about the history of cases related to the Dookhan scandal and our brief here.

 12/2015 Commonwealth of Massachusetts v. Wade
The Boston Bar Association (BBA) filed an amicus brief arguing that the lower court misinterpreted the new Massachusetts post-conviction DNA testing law, and erred in forcing the trial attorney to violate attorney-client privilege. The law, M.G.L. c. 278A, represents a major breakthrough for the state as a check against wrongful convictions, and it is vital to make sure it is properly implemented by the courts. The BBA provided much of the background and advocacy for this law through its Task Force on Wrongful Convictions and their resulting 2009 report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. On July 29, 2016, the SJC released its decision, holding in line with our brief on all counts – that the trial court judge misinterpreted the post-conviction DNA testing statute and erred in violating attorney-client privilege. Read our full statement on the case here and our Issue Spot blog coverage (Protecting Attorney-Client Privilege, Defending Access to Justice).

 11/2015 Recinos v. Escobar
The Boston Bar Association signed onto an amicus brief with a coalition of concerned organizations and individuals arguing that the Probate and Family Court has equity jurisdiction over youth up to the age of 21 to enter the findings needed to be eligible for Special Immigrant Juvenile Status. In brief, since 1990, the federal government has provided Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. However, SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court and a determination that the child is dependent on the state court in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court does not have jurisdiction beyond age 18, it has been constrained from making such findings for individuals who are 18, 19 or 20. The Justices made explicit and complimentary reference to the amicus brief during oral argument, and the Supreme Judicial Court held in-line with the brief, that the Probate and Family court does indeed have equity jurisdiction to make the requisite findings, and that plaintiff is dependent on the court for these purposes.

 11/2015 Fisher v. University of Texas at Austin
The first Fisher case, decided by the U.S. Supreme Court in 2013, was remanded to the Fifth Circuit for failing to apply strict scrutiny in its decision upholding the university’s race-conscious admissions policy. The BBA filed an amicus brief in Fisher I in August 2012. The Fifth Circuit endorsed the University’s use of racial preference in its admissions policy a second time in July 2014, and the Supreme Court agreed this summer to hear the case again. The BBA’s amicus brief in Fisher II argues that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, because under-representation of lawyers of color harms the legal profession and society as a whole. On June 23, 2016, the Supreme Court held in a 4-3 decision in line with our brief, ruling that the university’s race-conscious admissions policy was lawful under the Equal Protection Clause.

 7/2015 Wong v. Luu & Others
The Boston Bar Association drafted and submitted a brief in this case regarding the court’s inherent power to sanction attorney conduct.  The case stemmed from the trial judge’s order that an attorney who was allegedly responsible for the breakdown of a proposed settlement agreement among parties to the sale of three local supermarkets, must pay $240,000 in sanctions.  Our brief inspired a number of statements and bench questions at oral argument.It argues, and the SJC holding confirms, that the trial judge did not have authority to sanction the attorney in this case and the issue was more appropriate for review by the Board of Bar Overseers, to whom the trial judge had also referred the matter. The ruling provides valuable guidance, as our brief requested, on the court’s authority to sanction attorneys. Read more about this case here.

 12/2014 In re Guardianship of V.V.
The Boston Bar Association signed onto this amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions where someone other than the parent seeks to have him or herself appointed by the court as the child's guardian. The brief argues for a right to counsel in these cases based on constitutional due process and equal protection rights and policy considerations. It cites three different reports of BBA working groups and task forces on legal aid issues, including Investing in Justice, the recent report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  In early February 2015, the SJC's holding took the position urged by our brief.  Read more about the ruling here.  

 12/2013 Commonwealth of Massachusetts v. Rodrick James Taylor

The Boston Bar Association filed an amicus brief with the Supreme Judicial Court in Massachusetts in the case of Commonwealth v. Taylor. The BBA makes the case that when the prosecution fails to turn over mandatory automatic discovery, resulting continuances do not necessarily stop the speedy-trial clock. The BBA in its brief asks the court to resolve the tension between the requirement of Mass. R. Crim. P. 14 (a) that the Commonwealth produce certain categories of mandatory, automatic discovery, on the one hand, and the requirement of Mass. R. Crim. P. 36 (b) that defendants be brought to trial within one year (with only limited exceptions), on the other.

 3/2013 Richard Morse, Trustee v. Jonathan A. Kraft, et al.
The Boston Bar Association filed an amicus brief in the Massachusetts Supreme Judicial Court case Richard Morse, Trustee v. Jonathan A. Kraft et al. The case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees. The SJC did rule favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

 3/2013 RFF Family Partnership v. Burns & Levinson.
Arguing that Massachusetts will benefit from stating a clear rule applying the attorney-client privilege when a lawyer consults with in-house ethics counsel, the Boston Bar Association (BBA) filed an amicus brief in RFF Family Partnership v. Burns & Levinson.

"The issue presented by this appeal is important for all of the BBA's members who practice their profession in law firms, large or small, and for their clients," argues the brief. "The BBA therefore supports the adoption by this Court of a clear rule providing that the attorney-client privilege applies when a lawyer consults with in-house ethics counsel."

 3/2013 United States v. WindsorHollingsworth v. Perry
Underscoring its long-standing support for marriage equality, the Boston Bar Association announced its role as a signatory in amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both instances, the BBA joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations.

 8/2012 Fisher v. University of Texas, et. al.,

The Boston Bar Association filed an amicus brief in Fisher v. University of Texas, et. al., Supreme Court of the United States No. 11-354. The question the Supreme Court expected to answer was "Whether [the] Court's decisions interpreting the Equal Protection Clause of the 14th Amendment, including Grutter v. Bollinger, permit the University of Texas at Austin's use of race in undergraduate admission decisions."

Joining the BBA in its amicus brief was a coalition of organizations united by a shared commitment to advancing diversity in the legal profession. These organizations share the BBA's concern for diversity in higher education, recognizing that diversity within the legal profession cannot be achieved without a pipeline of diverse law school students, and diversity at the law school level, in turn, cannot be supported without diverse representation in undergraduate institutions.

 4/2012 Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.
Urging the Supreme Judicial Court to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008 – a statute that amended the definition of “issue” to include adopted children in pre-1958 trusts, the Boston Bar Association filed an amicus brief in a case seeking answers to the questions:

Is the retroactive application of Chapter 524 to instruments executed prior to 1958 constitutional?
If so, what are the consequences for actions taken by fiduciaries in reliance on Chapter 524 prior to the SJC’s determination that such an application is constitutional?

The brief notes, “Families often rely on [established principles of construction] in making irrevocable alternate arrandments, such as gifts or bequests made in favor of adopted children who were (until the effective date of Chapter 524) not beneficiaries of certain family trusts.”

 11/2011 Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, et al. No. 10-2204, and Nancy Gill et al v. Office of Personnel Management et al., No. 10-2207
Committed to ensuring that the Constitution’s guarantees of equal protection effectively protect all people from invidious discrimination, whether on account of race, gender, national origin, religion, alienage, or sexual orientation, the Boston Bar Association signed onto an amicus brief arguing that classifications based on sexual orientation must be subjected to heightened scrutiny.

The brief, written by the ACLU and Edwards Wildman Palmer LLP, concerned two cases that involved a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.

 1/2011 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. . .
         (a)  Would lead to uncertainty, instability, and inefficiency in awarding child support;
         (b)  Could jeopardize Federal Funding for the Commonwealth's Public Welfare Programs.


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 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 Massachusetts.

The BBA’s amicus brief, drafted by Jonathan Albano (Morgan Lewis & Bockius LLP), emphasized 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 Massachusetts would violate the Dormant Commerce Clause. Instead, the BBA’s brief focused 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 concluded that if the District Court’s judgment was 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.