Lawyers Journal

Many issues keep president active in first six months

It is now six months into my term as president of your association. Given that I am halfway in with halfway to go, I thought that I would devote this month's President's View to looking back at what the MBA has been doing since Sept. 1 and what we have waiting ahead for the final six months of my term. I do so aware that my 12 months as president is dramatically more important to me than it is or should be to you or to the MBA. My service as president of this association unquestionably should be nothing more than a point on a continuum. While I may have the opportunity to influence certain things during my time in office and must exercise my best judgment accordingly, what is more important is the continuity that makes the institution much, much larger than the past, current or future occupant of the president's office.

Every person who is given the honor of holding the office must do so with that perspective in mind. The office is an honor to be held, cherished and preserved, and, most importantly, to be passed along untarnished to its next holder. I had the good fortune to receive the baton in excellent shape from my predecessor, Joe Vrabel. I hope that I have so far acquitted myself to your satisfaction and will continue to do so before I pass that baton along to Kathy O'Donnell on Aug. 31.

The space limitations that go with this column make it impossible to mention everything we have been up to, so my focus will be on those items with a currency or an urgency that have brought them to the fore. Unfortunately, that means that I can only give passing mention to the plethora of MBA activities that make the association relevant to our members and the public, such as:

•  Community outreach programs (the Mock Trial competition; the Conversations programs;

•  Member benefits (CLE, further development of Casemaker, online seminars, legal technology developments);

•  Bar strengthening activities (the first Bar Leadership Institute, a renewed collaboration between the MBA and the Massachusetts Bar Foundation, the hiring or a bar services director, the upcoming diversity initiative); and

•  A very successful Annual Conference, "Leading Through Law" (expansion of recent developments programs; the thought-provoking presentation of a legal futurist; inspiration through the Access to Justice Awards program and national speakers Marian Wright Edelman and Professor David Cole).

Turning to the more temporal, we have been hard at work on many fronts:

Access to justice/budget issues - With every annual budget, we carefully scrutinize the proposals relative to three areas: (a) funding for the courts, (b) funding for indigent criminal defense and (c) funding for indigent civil legal services. Each of those three are critical to providing access to justice for every Massachusetts citizen.

In the FY04 budget, we succeeded in holding the line on funding for the courts and civil legal services funding (albeit after a pitched battle to override a Romney veto of all legal services funding). More recently, we have battled alongside bar advocate programs throughout the state for a much needed pay increase for those who perform the bulk of indigent criminal defense work in the commonwealth. Those efforts resulted in a unanimous vote by the Joint Judiciary Committee to report out a bill that would increase compensation rates to $60 per hour.

Unfortunately, much hard work lies ahead. The FY05 proposed budget recently released by Gov. Romney dramatically slashes funding for the trial court and indigent criminal defense. Both budgets are exacerbated by assumptions of the collection of unrealistic revenues by the courts. Throughout the budget season, we will continue to work very hard and collaboratively with other bar associations on these funding issues, which are critical to the preservation of meaningful access to justice.

Administration of justice issues - Much work had been begun before my term began on two important fronts: court reform/study and judicial evaluations. In November, the Court Study Task Force appointed by Joe Vrabel issued its report on our judicial system. That report reaffirmed many of the tenets of the MBA's 1991 Harbridge House report, but sharpened the focus upon two concepts: clearer lines of authority within the court and a more flexible approach to funding that would allow shifting of resources. While the report has been issued and adopted by the House of Delegates, the hard work is only beginning as we attempt to advocate for its support and adoption in the legislature.

The Judicial Evaluation Task Force, also appointed by Joe, is on the verge of issuing its report to the MBA House of Delegates in March. Undoubtedly, the issuance of that report will be the next step in the continuing MBA efforts to assist in maintaining our excellent judiciary. Those efforts will also help solidify the public respect, which will be critical to staving off any efforts to move to a system of electing judges.

Following the adoption by the legislature of a bill imposing "anniversary fees" on civil filings, I asked our Civil Litigation and Access to Justice section councils to study the issue and make a report and recommendation to our House of Delegates. Following their report in November, an Anniversary Fee Task Force was formed and recommended that the MBA present a constitutional challenge to those fees in litigation. The House of Delegates adopted that recommendation in January and those efforts are presently underway. We are hopeful that through these efforts, this further barrier to access to justice may be struck down.

Professional responsibility issues - In January, the Board of Bar Overseers published a far-reaching proposed rule change. This proposed rule reopens the mandatory malpractice insurance debate and would require disclosure by attorneys to clients and prospective clients of the absence of professional liability insurance. We have formed a task force to study both this proposed rule and report to our March House of Delegates.

Earlier this past fall, the Supreme Judicial Court adopted a new Rule 1.15 imposing stringent accounting requirements on all attorneys who hold clients' funds as of Jan. 1, 2004. Out of concern that the implementation of the significant changes would present difficult challenges to many solo practitioners and small firms, we were able to obtain an unprecedented delay in the implementation date of that rule change until July 1, 2004.

Core practice issues - At its annual meeting last summer, the American Bar Association House of Delegates addressed whether it would recommend adoption of a uniform definition of the practice of law. Instead, it embraced the concept that this was a local issue and recommended to the state bar associations that they address it. Following a spirited debate by the MBA House of Delegates in September, a task force was formed and is working through the two companion issues: should there be any codified definition and, if so, what should it be.

One of the most important member benefits that the MBA provides is its legal malpractice insurance program. Unfortunately, a much harder insurance market made maintaining this benefit an extraordinary challenge. To do this, we were forced to look outside our present insurer and attract an alternative carrier, an extraordinarily difficult task in the present market. We have recently completed a long and arduous journey to retain satisfactory malpractice coverage at reasonably stable premium rates. The sign of our success in this regard will be your failure to notice any change.

Amicus briefs - During this term, we have filed two amicus briefs - the first in the case of Commonwealth v. Pelosi, which dealt with the issue of disclosure of medical records and the possible adoption of standards for determining when and how that is to occur. The second amicus brief was a follow-up to our prior brief in Goodridge v. Department of Public Health. This was precipitated by the Senate request to the SJC for an opinion on the proposed bill to prohibit marriage by same gender couples but provide for civil unions. Through these briefs, we have made the MBA voice heard on these issues of great importance.

In the last six months, we have faced many challenges and have had both success and failure. The successes that we have had so far and, more importantly, those that we will have in the future will unquestionably come through the extraordinary efforts of our volunteers and the MBA staff. They will also come from the input that we receive from you, our members, on the multitude of issues that arise.

The strength of our MBA voice comes not from the charismatic leadership of the officers, but from being uniquely able to speak as the representative of 18,500 members of the legal profession in the commonwealth. Please continue to let us hear your voice, whether it be as a volunteer and/or as a member with an opinion. While we may win some battles and lose some others, your voice, our voice, is important and with your support, we will continue to make that voice heard.

To read more columns by MBA President Richard C. Van Nostrand and past MBA presidents, click on www.MassBar.org/mba_info/pres_page/.

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