Delegates clear full plate at meeting

Issue April 2004

Proposals included judicial evaluations, malpractice insurance, anniversary fees and a constitutional challenge

At its March meeting in Springfield, the MBA House of Delegates took up several topics of major interest to the profession. Among them: the anniversary fees challenge, judicial evaluations, and the proposal to require disclosure of liability insurance. Among the House actions:

Judicial evaluations
The task force on judicial evaluations, chaired by President-Elect Kathleen O'Donnell and Vice President John Dugan, recommended that the MBA establish a 12-member standing committee to be appointed by the president to oversee the development and implementation a Web-based judicial evaluation system allowing MBA members to evaluate judges at any time. The results of the evaluations would be confidential. The standing committee would use the evaluations to work with the judiciary to improve judges' performance and would recommend to the MBA officers to make public the results on an individual judge when it served the administration of justice. The standing committee also would prepare and publish an annual report on the overall results of the evaluations.

The proposal was unanimously approved.

Same-gender marriage
"We live in momentous times. Some embrace what's been happening; others resist what's been happening," said President Richard C. Van Nostrand in opening a discussion of the association's response to the same-gender marriage challenge in Massachusetts.

"Since Nov. 17, the world has watched our state - how our citizens have reacted, how our three branches of government have reacted, and how the members of our profession have reacted," Van Nostrand said. "We have been looked to to explain the court's decision, for advice on its ramifications, we have been asked for our opinions on what's been happening. And we've all been asked where we stand as lawyers on this issue.

"The MBA has had a position from our previous Goodridge amicus briefs. But it has left us somewhat attempting to deal with the evolution of this issue, without a clear direction from this body. So we now turn to you as the leaders of the largest association of lawyers in the state, in fact as leaders of the organized bar in Massachusetts."

Following an overview discussion from General Counsel Martin Healy that included a review of past House action, the SJC's Goodridge decision and the recent Constitutional Convention amendments battle, Vice President Warren Fitzgerald proposed the following resolution:

"The Massachusetts Bar Association, having steadfastly supported equal rights and equal protection under the law for all persons as determined by the courts of our commonwealth and of the United States, and having continually sought to ensure that the dignity provided by our laws is available to all persons, and having unwaveringly supported the independence and integrity of our Judiciary, opposes all attempts to alter the Constitution and laws of our Commonwealth in any way which would deprive individuals of any of the rights, protections or dignity recognized by our Supreme Judicial Court in Goodridge v. Department of Public Health."

The resolution was unanimously approved.

Malpractice insurance
The House approved a recommendation of the malpractice insurance task force to oppose the proposed amendment to Rule 1.14 of the Massachusetts Rules of Professional Conduct requiring disclosure of information regarding professional liability insurance, and to propose new language for Rule 1.14, that states: "a lawyer should have adequate resources available to compensate a client for any harm (damages) caused by the lawyer in the course of legal representation."

Other action
•  Anniversary Fee Committee chairs Mark D. Mason and David White-Lief said they expect to have the association's complaint challenging anniversary fees ready by mid April. They praised Prof. Thomas Carey for his efforts in drafting the complaint and indicated that the current draft seeks permanent injunction and asks for injunctive relief.

•  The House approved a recommendation by the Property Law Section Council to advocate for a delay in implementation and further study of Executive Order 455 entitled, "Standards of Conduct for Notaries Public." The MBA will request a delay until July 1 and ask the governor to establish a mechanism to consult with the conveyancing bar and other notaries public regarding more appropriate methods of achieving the goals set forth in Executive Order 455.

•  The House approved a Family Law Section Council proposal to re-draft House Bill No. 1038 (An Act Relative to the Appointment of Parenting Coordinators in the Probate Courts).

•  The House unanimously approved a proposal by the Individual Rights & Responsibilities Section Council to oppose the defined compensation plan for CPCS attorneys as presented in the governor's proposed budget for fiscal year 2005.

Other reports
In his President's Report at the opening of the House meeting, Van Nostrand told members that the MBA is drafting a letter in response to the U.S. Chamber of Commerce recent tort-reform ad campaign, and offered to co-sign the letter with county bar presidents. He also announced the procedures for submitting nominations for officer and delegate positions; recognized the Access to Justice Section Council as winner of the 2004 Gala Dinner challenge; and discussed the Diversity Conference being planned for May.

In her President-Elect's Report, Kathleen O'Donnell said she has met recently with the IRR Section Council to explore ways to deal with issues surrounding the PATRIOT Act, including plans to train members to speak at public forums. She also said IRR hopes to present a resolution at the May House meeting reaffirming the bar's commitment to civil rights and liberties.