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Section Review

A View from the Counties

Editor’s note: In this time of curtailments on some of our most fundamental rights, such as that of counsel, we turned to Jim Van Buren, President, Worcester County Bar Association and member of the Access to Justice Section Council for his views on how local attorneys were reacting.

And, as a followup to last issue’s guest columnist high school student Raiff Tsapatsaris, his strong condemnation of anti-Arab sentiments expressed on the school’s bathroom walls apparently didn’t hurt him with his peers: he was elected Class President of the Winchester High School Class of 2003.

It seems but a moment since last September when some of us became chief executives of our respective bars. In reprising some of the comments made since that time in my monthly President’s Reports, I am struck by the impact these extraordinary events have had on meaningful access to justice here in the commonwealth.

At Worcester’s last annual meeting, I had a simple agenda — maintaining our bar’s traditional standards of pro bono work in a collegial setting. Yet, as early as my first report, written while the fires still raged in New York City, I discounted that agenda, and other professional goals, to note that, “... it has always been our profession that has provided leadership in troubled times. While supporting the just fight against this shadowy foe, we must maintain those freedoms that have made this country great ... preserving our freedoms is the only sure way to thwart the terrorists goal.”

In the face of this terror, we, as lawyers, maintained our poise and continued to assist those in need. In November, I commented on the selflessness of our members who continued to provided access to those in need.

Yet my December report noted the contrast between lawyers of earlier generations who spoke out on difficult issues, and “... our relative inaction, as a profession, in response to the recent legislative and regulatory infringement on rights enjoyed by every American — the right to privacy, the right to counsel, and even that to speak freely. Unfortunately, the concerns I expressed ... that the horrors of September 11 would serve as a fulcrum for those in government who would seek to use the terrorist generated fear to infringe on our real freedoms — has materialized.”

As bar leadership struggled with the impact on individual liberties in this time of crisis, the efforts of the MBA and the county bars were frustrated by yet another threat to the accessibility to justice for all. That being the combination of the commonwealth’s fiscal crisis, and its impact on court funding, as well as the internecine struggle between the branches of government and even among judicial branch employees.

In February, I noted, “... on both federal and state levels, the rationale for a third branch of government has always been to provide a mechanism for access to justice ... (a branch) ... better served by having an administrator who not only has the authority to review every aspect of each trial court’s department’s budget request, but also has the authority to direct local chiefs, be they judicial, probational, clerical, to relocate personnel where needed.”

Although, as I write this, the House and Senate budget versions have yet to be reconciled, it appears the basic framework for preserving access to judicial forums will be preserved. It also appears judicial and bar leadership are embracing a review of the methods by which we administer justice.

Both the modest turning of the fiscal tide, and the prospect of cooperation among the branches, allows us to examine again the realities of providing access to justice to those in need. One such reality is educating our fellow lawyers about the impact the “September 11” laws will have on all their clients.

Through the Presidential Task Force on the Preservation of Rights, Liberties and Access to Justice, the MBA is developing a program that will, ideally, involve a broad spectrum of the membership. Entitled “Conversations on Law & Liberty in Times of Crisis,” this program is scheduled to begin, appropriately, this September, at schools around the commonwealth. Designed to have volunteer lawyers facilitate discussions — organized around the concept of the impact on civil liberties in an age of terrorism — this program must involve a broad spectrum of the Bar, not just those of us who specialize in criminal defense, benefits, or immigration.

We lawyers must get out into our communities — the schools, government, business, and fraternal organizations — to make our fellow Americans aware of the drastic impact new laws and regulations have had on our civil liberties since last September. Among many examples: the ability of law-enforcement agencies to wiretap and monitor the Net, when those agencies — not a judge — determine that “intelligence gathering” constitutes a “significant purpose” of those taps; allowing grand juries to share information with other agencies; permitting the executive branch — not the legislative or judicial — to define “federal terrorism offenses” as the “intent to influence or effect the conduct of government by intimidation or coercion.”

We have already fought hard for the basic funding necessary to maintain the independence of the judicial branch. Now is the time to refocus on the fundamental reason for having that third branch: to maintain the level playing field every American, rich or poor, is entitled to when they have the need to have their day in court.

©2017 Massachusetts Bar Association