Busy year begins for section councils

Issue October 2004

As the new membership year gets underway, the 16 section councils of the Massachusetts Bar Association are meeting for the first time and setting up goals to achieve, from continuing legal education programs to legislative issues that will be important this year.

Though section chairs will be finalizing goals when they meet with their councils, several have already pinpointed some issues the sections will be focusing on. This ranges from carefully monitoring and responding to any legislation designed to reform medical malpractice litigation to thinking of new ideas to improve access to justice for individuals who experience linguistic barriers in courts.

Among several sections' primary goals are:

The Access to Justice Section will work on a number of new projects as well as continue to follow through on those that have already been started, such as looking at adequate compensation for bar advocates. In addition, Chair Jacquelynne Bowman, of Greater Boston Legal Services, is interested in the council looking at pay rates for civil legal advocates.

"Often the public servants doing this critical work are the ones who are not able to stay in this work because of the pay," Bowman said.

Other issues on this year's agenda include improving access to justice for individuals with language barriers. Often litigants and attorneys have to sit in court for hours until an interpreter is available to assist with a case. Bowman wants to discuss ways in which that situation can improve as well as whether the Section Council should take on initiatives regarding pro se litigants.

Under Chair Francis T. Talty, of Lowell-based Talty & Talty, P.C., the Business Law Section will study legislation filed in the Labor and Commerce Committee to make determinations on whether that legislation should be supported or opposed. In addition, the section will sponsor seminars, perhaps in conjunction with other sections such as the Civil Litigation Section.

"We'll continue to monitor the implementation of the new Massachusetts Business Corporation Act and continue to monitor proposed changes to the Massachusetts Rules of Professional Conduct," Talty said.

Civil Litigation Section Chair Chris A. Milne, of Milne Law Office in Dover, said the section will address a number of issues, such as working to support the judiciary for funding and reforms aimed at improving access to justice.

"We also need to be ready to react to legislation that may restrict the rights of consumers in any areas," Milne said.

One of these areas getting a great deal of attention recently is discussion of so-called reform in medical malpractice, Milne said.

The section also will offer an array of continuing legal education courses and will be working closely with other committees in joint efforts.

This year also promises to be a busy one for members of the Criminal Justice Section. Section Chair and past MBA President Edward P. Ryan, Jr., of O'Conor and Ryan, P.C. of Fitchburg, wants to tap into several issues, including addressing the establishment of a permanent innocence project in Massachusetts.

Compensation issues for public defenders and bar advocates will continue to be an important topic this year. Other interesting issues include drafting a comprehensive report supporting legislation requiring law enforcement authorities to videotape and audio record the interviews and interrogations of persons suspected of crimes. This work would entail discussing several issues that need to be addressed before it is ready for potential legislation, according to Ryan.

Ryan also wants the Section Council to undertake a complete review of the methods currently employed by law enforcement authorities to obtain eyewitness identifications in light of current social/psychological evidence that these methods may themselves create the real possibility of causing irreparably mistaken identifications. And, the Section Council will discuss sentencing issues, including mandatory minimum mandatory sentences, guideline issues, Blakely, etc. as well as expert testimony in criminal cases - ballistics, fingerprints, etc.

Promoting civility and professionalism as well as continuing legislative, policy and community work will highlight the goals for the Family Law Section, according to Chair Pauline Quirion, of Greater Boston Legal Services.
Promoting civility is important to domestic relations practitioners because the practice involves some of the most intense, difficult and emotionally charged cases. The council also will continue with its legislative, policy and community work in areas that impact the domestic relations bar.

The MBA opposed efforts of the Probate Registers to take power away from Probate and Family Court judges this year and the Family Law Section will continue to work to defeat measures that would disrupt functioning of the court or erode judicial independence, Quirion said.

Other important topics will include implementation of new time standards, the child support guidelines, GAL standards, "removal" and child custody bills as well as other legislation. The section also will provide substantive educational programs to keep members well informed about family law and attempt to foster civility and collegiality through conferences, educational seminars and brown-bag lunches.

Health Law Section Chair Kimberly Winter, of White, Freeman & Winter of Weston, said the section will look at a number of issues, including any legislation that has to do with reform in medical malpractice litigation. Another issue relates to the new Medicare Prescription Drug Act.

"Members are still learning how to work with this and we are going to get together some information about that," Winter said.

Winter expects to see a CLE program and potentially a Section Review article on the new act.

The USA PATRIOT Act and its impact on individuals will be among the issues that the Individual Rights and Responsibilities Section will focus on, said Chair Reynold A. Ilg, Jr. of Lowell

This will involve community outreach in educating the public about the implications of the PATRIOT Act. MBA President Kathleen M. O'Donnell has made PATRIOT Act education a goal of her presidency.

The Judicial Administration Section will undertake several projects, including a review of the Proposed Rules of Evidence to recommend their adoption. This project is well underway and will be a program at Annual Conference 2005, according to section Chair Marylin A. Beck, of the Law Office of Marylin A. Beck in Dedham.

Other initiatives include development of "plain speaking" jury instructions, reexamination of the disciplinary rule that prevents attorneys from contacting a juror who has deliberated to a verdict, and prevention of unintentional contamination of the jury pool, which has been reported anecdotally.

The section also will look at tightening up court procedures that have been misused, abused or are subject to inconsistent interpretation such as use of emergency motions, the order of discovery, signing of expert interrogatories, out-of-state depositions, notification of all parties of the service of subpoenas on third parties and making a record of a Rule 35 insurers medical exam.

In addition to potential legislation and educational programs for the bar and the judiciary, the section will look at a clarification of legal standards such as burden of proof ("to a reasonable degree of scientific certainty") and causation ("a substantial contributing factor").

Among the issues that will be important this year for the Labor & Employment Section is looking at new regulations within the federal Fair Labor Standards Act that changed over the summer, said Chair Denise I. Murphy, of Rubin & Rudman, L.L.P. of Boston.

In addition, Murphy wants the section to focus on the state's sexual harassment statute, Chapter 151B, particularly on whether training should be made mandatory and that it should focus on all employees and not just managers.

Law Practice Management Section Chair David W. White-Lief, of the Boston firm Breakstone, White-Lief & Gluck, said the section will focus on issues aimed at improving the practice of law, such as in making practices more efficient and profitable.

Two examples of accomplishing this are in educational programs discussing computer systems and marketing. White-Lief said there are ways to market small law firms with little or no cost involved and he also stressed the importance of an Internet presence in today's market. Lastly, he would like to focus on job satisfaction and discuss ways to retain personnel through positive motivation.

The Probate Law Section will once again turn its attention to passage of provisions of the Uniform Probate Code this year, said Chair Frederick L. Nagle, Jr. of Haverhill.

In particular, Nagle is hoping to get Article V voted on separately by the legislature. The article deals with protecting frail individuals by removing the standards of mental illness and inability to communicate due to physical incapacity from the law. It creates a new standard for an "incapacitated person," which is based on a clinically diagnosed condition that results in an inability to provide for basic personal needs, according to a fact sheet on the legislation.

Legislators have voted on separate articles within the Uniform Probate Code due to the depth of the code. Other issues the section will consider include the spousal elective share provision and what that means in light of the Goodridge v. Department of Public Health same-sex marriage decision. Other issues include estate recovery and federal waiver in relation to the regulatory issues within the Division of Medical Assistance, Nagle said.

The Property Law Section will discuss ongoing issues of zoning reform as well as Chapter 40R, a brand new piece of legislation that is designed to create special districts to encourage housing production aligned with the principles of smart growth, said Chair Kathleen D. O'Donnell, of Kopelman and Paige of Boston.

Affordable housing, zoning, environmental issues and other topics will continue to be important for the Public Law Section, said Chair Carol H. McGravey, of Urbelis & Fieldsteel, L.L.P. of Boston.

McGravey also wants to facilitate increased communication between various sections as public law topics often overlap with other practice areas such as litigation and property law. In addition, the PATRIOT Act will be an important topic as many public lawyers are receiving phone calls from their clients, such as police chiefs and librarians, who want to know about the implications of certain provisions of the act. The section also will work on developing programs to assist public law practitioners maintain their law practices.

"We have an exciting year, especially if we can continue to communicate with other sections," McGravey said. "We have many common interests and they are not always at the forefront."

Young Lawyers Section Chair Elizabeth D. Killeen, of Hogan Roache & Malone of Boston, said the section will concentrate on providing membership benefits that ensure the value of belonging to the Massachusetts Bar Association for young lawyers. This includes low-cost to no-cost educational programs as well as social events.

"These will be designed to welcome new and returning members to the Young Lawyers division of the Massachusetts Bar Association," Killeen said.