BOSTON – Following a decision by the U.S. District Court for the District of Massachusetts in which the Real Estate Bar Association for Massachusetts, Inc. (REBA) was found liable for violating 42 U.S.C. Section 1983, and ordered to pay $904,076.17 in legal fees to a real estate conveyancing business, the Boston Bar Association today announced that it has filed an amicus brief in the First Circuit of Appeals asserting the First Amendment rights of all litigants, including bar associations, to petition courts for the redress of grievances that have a reasonable basis in fact and in law – regardless of whether the courts ultimately grant or deny relief on the merits.

REBA v. National Real Estate Information Services (NREIS) and NREIS Inc., began in Suffolk Superior Court in 2006 with REBA’s claim that NREIS engaged in the unauthorized practice of law by providing certain real estate conveyancing services. NREIS subsequently removed the case to federal court, and counterclaimed against REBA, arguing that REBA’s claim, if allowed, would deprive NREIS of its rights under the Dormant Commerce Clause to do business in Massachusetts.

The BBA’s amicus brief, drafted by Jonathan Albano, a partner at Bingham McCutchen, LLP, emphasizes that the BBA does not seek to be heard on whether NREIS actually engaged in the unauthorized practice of law or whether prohibiting NREIS from conducting its business in Massachusetts would violate the Dormant Commerce Clause.  Instead, the BBA’s brief focuses on the First Amendment rights of private parties, including bar associations, to file reasonably based claims for judicial relief without being held liable for damages or attorneys fees.

The brief concludes that if the District Court’s judgment is upheld, private citizens who are granted standing by legislation to bring claims against private individuals but who fail to prevail on such claims would appear to face a similar risk of being held “state actors” responsible for attorneys fees awards.