HOD supports principle of civil Gideon

Issue June 2007 By Bill Archambeault

After an impassioned debate, the House of Delegates voted unanimously to support a civil Gideon resolution, urging the state to provide legal counsel to low income people in civil matters involving basic human needs. The debate highlighted the May 23 meeting, held in Springfield, in which MBA President Mark D Mason symbolically passed the gavel to President-elect David W. White Jr., whose term officially begins Sept. 1.

 Michael S. Greco, past president of both the American Bar Association and the Massachusetts Bar Association, called on the MBA to endorse ABA Resolution 112A. It calls on the government to provide free legal counsel to the indigent in a limited number of civil cases involving basic human needs such as shelter, sustenance, safety, health and child custody. “It is shameful, shameful, that in the most bountiful country in the world, that 80 percent of the legal needs of the poorest Americans go unmet year after year,” Greco told the group, arguing that the right to counsel should not be limited to criminal cases.

 “Imprisonment is not just being behind bars,” he said. “It can be living in poverty day after day. This issue is the defining issue for the legal profession, for the organized bar, for society.” Russell Engler, New England School of Law professor and director of Clinical Programs, urged the delegates not to get bogged down in questions about implementing the resolution during his introductory comments alongside Greco and Access to Justice Section Chair Julio Hernando.

 “Traditionally, Massachusetts has been a leader across the country, and we need to speak,” Engler said. “It’s simply the right thing to do. The problem with unmet legal needs has gotten worse.”

 There was, however, debate about whether the MBA should study the issue before endorsing the resolution, which does not address how the initiative should be funded or implemented.

 During discussion, Public Law Section Chair Robert L. Quinan Jr. said that his section embraces the concept but believed further study was needed because too many questions were left unanswered.

 “People should consider the effect this will have on state government,” he said. Greco acknowledged that the potential costs for implementing a civil Gideon could be daunting, but he pointed out that the state is paying unknown amounts in social services programs because poor residents don’t have access to counsel and the state ends up shouldering costs in the areas of domestic violence, children’s services and homeless shelters.

 “In Massachusetts, we’re incurring costs because the poor don’t have access to aid,” Greco said. “If the problems these individuals face are not helped by a lawyer, the problem escalates.” Greater Boston Legal Services Inc.’s Pauline Quirion, a delegate-at-large, stressed how urgent the need is and how many poor are turned away from receiving legal help because of limited resources.

 “It’s very painful how many people we turn away on a daily basis,” Quirion said.

 “We’re clearly not meeting the need.” Criminal Justice Section Chair Lee J. Gartenberg said he had a concern that pushing for a civil Gideon would take away already insufficient funding resources for the poor in criminal cases. Greco made a closing plea for support, saying that lawyers shouldn’t have to choose between providing legal aid for criminal and civil cases.

 The resolution then passed on a unanimous voice vote, which Mason said is an important first step in providing equal justice in civil cases.

 “This was a truly history in the making,” he said. “We have much to be proud of.” Judicial compensation

 The Civil Litigation Section proposed four measures related to increasing judicial compensation and regulating the process for salary adjustments.

 HOD approved the first measure, to support legislation giving retired judges an adjustment to their annual pension. The second measure, to support legislation establishing a commission on judicial compensation, benefits and pensions, was postponed, however, after a number of questions were raised.

 “I don’t think this is something this state should spend its energies on,” said Massachusetts Lesbian & Gay Bar Association Co-Chair Christina E. Miller, who works in the Suffolk County District Attorney’s Office, noting the financial hardships faced by public defenders and prosecutors. “I think that’s where a commission should be established.”

 Other delegates questioned whether such a bill would be an affront to the Legislature, or whether it would even be constitutional.

 Delegate Peter Elikann asked whether the Legislature might be relieved to be given cover for raising judicial salaries. “I hate to see the issue of judicial compensation always tied into politics and (Boston) Herald editorials,” he said.

 MBA General Counsel Martin W. Healy said, however, that the Legislature “probably would reject the notion that their hands be tied” by a proposal like this. HOD voted unanimously to postpone a vote until its September meeting and have the section councils, affiliated bar associations and the MBA’s Judicial Independence Committee review the proposal.

 The third measure, to support legislation giving the maximum retirement benefits to the survivors of judges who die performing their duties, was also postponed and will be referred to the sections for review. The final measure, supporting legislation raising compensation for judicial officers, was unanimously approved.

 Family law revisions

 HOD approved a Family Law Section request to draft a bill related to Massachusetts employee pension reform, which would resolve problems in allocating state pension benefits upon divorce. Delegates also approved MBA endorsement for establishing standards for clinical (Category E) guardians ad litem. The section also announced that a Joint Alimony Task Force was being formed.

 In other business, HOD:

 • Unanimously supported the Real Estate Bar Association’s effort to establish standards of conduct for notaries public, which is currently in the Massachusetts Legislature. “We see a consumer protection issue here,” said REBA President Sami S. Baghdady.

 • Heard a brief update on the Post- Goodridge Task Force’s interim report.

 • Postponed discussing and voting on proposed changes to the MBA’s bylaws and policies and procedures.

 • Unanimously endorsed a resolution asking the Supreme Judicial Court to appoint two members of the bar and two members of the public to serve on the SJC’s Performance Evaluation Committee and to routinely publish the anonymous data collected about evaluations.

 • Delegates approved publishing two Ethics Committee opinions. The next chapter

 President-elect David W. White Jr. announced that following this year’s theme of “United in the Law,” the theme for the 2007-08 term would be “Speaking with One Voice.” He said that criminal sentencing reform, energy conservation and environmental issues would be some of his goals for the next year. M ore immediately, he announced the launch this summer of a blog on the MBA Web site for members.

 After Mason passed the gavel, White ended the meeting praising Mason’s leadership this year.

 “He’s brought a dignity to this task that is rare,” White said, noting that the MBA currently has a stronger relationship with the judiciary than it has in decades. “He’s been a fantastic emissary.”