MBA strength lies in unity of purpose, common goals, many voices

Issue June 2004 By Richard Van Nostrand

To serve the legal profession and the public by promoting the administration of justice, legal education, professional excellence, diversity and unity in the legal profession and respect for the law.
- Statement of Purpose, Massachusetts
Bar Association, Inc. Bylaws

Fueled in large part by two contested officer races (which have precipitated a number of recent articles in the MBA's Lawyers Journal and e-Journal, the Lawyer's Weekly "Hearsay" column and several letters to the editor of that publication), several members have put to me the question, "What's going on with the MBA?"

In many of those instances, it is obvious from the question that the inquirer has interpreted recent events in a negative light, much as a driver who slows down past an accident scene. Even for those whose curiosity is less morbid, recent events and the questions they have spawned suggest that a response is in order.

Let me first reassure all that the MBA is very healthy and strong. We are solid organizationally, structurally and financially. In contrast to the trend for most voluntary bar associations, our membership rolls are growing rather than shrinking. Events of the last few months reflect well upon our ability to work with and influence the legislative, the judicial and the executive branches.

We have made strides to strengthen the organized bars in Massachusetts and have recently conducted a successful and thought-provoking diversity conference that we hope will spin off valuable programs and projects that will meaningfully impact that issue. We have entered upon a new era of collaboration and cooperation with the Massachusetts Bar Foundation, a development that can only benefit both organizations and the many constituencies they serve.

In 2006, past presidents of the MBA will lead the American Bar Association and the New England Bar Association.

Having said that, the triggering event for the inquiries has clearly been the three contested elections, for vice president, secretary and Suffolk County regional delegates. The occurrence of these contested races, with all of the accompanying campaign trappings, have been viewed as a sign of unrest and trouble within the association. In the eyes of some, further evidence of this "unrest" can be found in the dueling letters to the editor of Lawyers Weekly supporting this or that candidate or slate. Only when the house is in disarray, these observers have suggested, would such things be happening.

Paraphrasing the saying ascribed to Mark Twain, "The report of (our) death has been greatly exaggerated." No more is a contested election for the MBA a sign of disorder or disquietude than is it a sign of disarray or disquietude for any other democratic institution. Contested elections permit an inclusiveness that we should embrace rather than abhor. Similarly, we also should welcome the desires of our members, including our past presidents, to publicly express their opinion as to whom they think will best serve the institution and all of its members. It would certainly be hypocritical for an organization that puts so great a value upon the freedom of expression, particularly political expression, to take umbrage at this discourse.

Supporting an open election process and the freedom of expression certainly should not be construed as an endorsement by me or the association of any person or slate in the current election. Insofar as my personal opinion is concerned, this column is not the forum for that expression. That personal opinion has been communicated to the candidates and, as the election nears its end, I also would be happy to share that opinion with anyone who cares to inquire.

For whatever reason, some have tried to portray this election as a battle for the soul of the MBA. I have heard, more indirectly than directly, that a whispering campaign is underway that suggests this is either a noble attempt to protect the forgotten interests of the plaintiff's bar, or a valiant effort to prevent the MBA from becoming a mini-MATA (Massachusetts Academy of Trial Attorneys). The more this is repeated, the more it will become a self-fulfilling prophecy when the election results are announced.

That would be a terribly unfortunate outcome. It would be detrimental to the efforts to strengthen our unified voice, efforts that Kathy O'Donnell intends to continue next year. This unified voice increases our ability to influence the decisions of the three branches of government, other members of the profession and the public. It is the best vehicle we have to preserve the rule of law, promote equal access to justice, support the fair and timely administration of justice, promote the good works of our profession and best serve the public.

In 1999, the MBA House of Delegates approved the product of a hard-working, strategic planning committee. That vote established that "(t)he core values of the Massachusetts Bar Association are professionalism, equal access to the legal system for all, and an unswerving commitment to the profession, to the rule of law, to each other, and to the people whom we serve." To preserve those values, several goals were established: enhancing professionalism; supporting members in their professional development; fostering a positive reputation for lawyers; and advocacy in the legislature and other forums with respect to issues affecting the legal profession, the rule of law and access to justice for all, including indigent persons.

The irony in the perception that the current election reflects a polarization within our ranks can be seen from a simple review of the positions taken up by the MBA this year (mostly by unanimous vote). A review of those positions defies characterization except as a reflection of the aforementioned values and goals. They are strong evidence that the leaders of the MBA (the 70 members of the House of Delegates and the six officers) embrace the purpose, values and goals without regard to practice area, side of the aisle or what have you.

That list includes:

1. Adoption of the Court Study Task Force report and its recommendations for the improvement of the judicial system;

2. Passage of two resolutions to advocate for the repeal of the "anniversary fee" and file suit to challenge it on constitutional grounds;

3. Support for the recommendations of the Study Committee on Trial Transcripts;

4. Filing of amicus curiae briefs in the Commonwealth v. Pelosi case regarding the production of confidential medical records and the advisory opinion sought by the Senate on same-sex marriage legislation;

5. The successful request for delay in the implementation date of the new ethical rule regarding accounting requirements;

6. Support for amendments to service of process rules in civil litigation to reduce costs;

7. Proactive filing of legislation regarding conditions for the release of criminal defendants on personal recognizance;

8. Endorsement of the report of the Housing Appeals Advisory Committee;

9. Adoption of the recommendation of the Judicial Evaluations Task Force that the MBA implement an ongoing Web-based judicial evaluation process;

10. Opposition to efforts to amend the Massachusetts constitution to prohibit same-sex marriage;

11. Opposition to a proposed ethical amendment that would require certain financial disclosures by attorneys;

12. Ongoing efforts to modify the executive order regarding notaries public;

13. Approval of a rewritten bill regarding the appointment of parenting coordinators in the Probate Court;

14. Opposition to the governor's defined compensation plan for bar advocates;

15. Advocacy for necessary funding for civil legal services; the courts and appointed counsel; and

16. Ongoing legislative and public advocacy in the areas of tort reform; the death penalty; and intrusions upon and interfere with the attorney/client relationship.

By the time you read this, it is expected that we also will have taken strong positions in opposition to the Patriot Act and in support of the adoption of a formal definition of the practice of law. Add to these formal positions our efforts to strengthen the profession and the organized bar through the Bar Leadership Institute in the fall and our recent Diversity in the Profession Conference; to inspire our members through the Annual Conference and its theme, "Leading Through Law;" and to educate and inform students in the 117 high schools that participated in the Mock Trial Program and the 40 high schools that are taking advantage of our Brown v. Board of Education-themed Conversations program, which is underway as I write this.

I defy anyone to find a "house divided" interpretation that can be given to the MBA's activities and accomplishments of this year.

Within a few short months, I will be riding off to the retirement home for past presidents, where I intend to use the phrases, "when I was president" and "in my year" indiscriminately. I have no doubt that the MBA will continue to thrive and move forward, but it is my fervent hope that there will be a continued recognition that future successes are more likely to come from unity, not divisiveness.

Undoubtedly and naturally, there will be some issues upon which not everyone will agree. Those issues will and should provoke thorough and impassioned debate, and ultimately the governing body of the MBA will either agree or possibly agree to disagree. Hopefully, those differences of opinion will never cause us to become disagreeable, because if division and disagreeability ever become the norm, it will greatly diminish the effect that we, as members of this great organization and profession, can have.