Amicus Briefs

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice.

Requests for the BBA to draft or sign on to an amicus brief must be submitted to the Director of Government Relations using our official form.  Upon receipt of the Request, the Director will promptly provide the Request to the Committee.

Please note that the BBA will not consider any Request to file or join an amicus brief unless there is adequate time to consider the matter.  For amicus briefs to be prepared by the BBA, three months is generally needed to obtain the requisite approvals and prepare the brief for submission.  For amicus briefs prepared by another party to be joined by the BBA, two months is generally needed to obtain the requisite approvals, with the draft brief to be submitted to the BBA no more than one month before the deadline for filing the amicus brief.

 10/2016 Bridgeman v. District Attorney for the Suffolk District
The Boston Bar Association filed an amicus brief in this, the fourth case related to the actions of Hinton Drug Laboratory chemist Annie Dookhan, who tainted evidence in thousands of drug cases. Our brief argues for a global solution that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of at least one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges. Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct. It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice. Read more about the history of cases related to the Dookhan scandal and our brief here.

 12/2015 Commonwealth of Massachusetts v. Wade
The Boston Bar Association (BBA) filed an amicus brief arguing that the lower court misinterpreted the new Massachusetts post-conviction DNA testing law, and erred in forcing the trial attorney to violate attorney-client privilege. The law, M.G.L. c. 278A, represents a major breakthrough for the state as a check against wrongful convictions, and it is vital to make sure it is properly implemented by the courts. The BBA provided much of the background and advocacy for this law through its Task Force on Wrongful Convictions and their resulting 2009 report, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. On July 29, 2016, the SJC released its decision, holding in line with our brief on all counts – that the trial court judge misinterpreted the post-conviction DNA testing statute and erred in violating attorney-client privilege. Read our full statement on the case here and our Issue Spot blog coverage (Protecting Attorney-Client Privilege, Defending Access to Justice).

 11/2015 Recinos v. Escobar
The Boston Bar Association signed onto an amicus brief with a coalition of concerned organizations and individuals arguing that the Probate and Family Court has equity jurisdiction over youth up to the age of 21 to enter the findings needed to be eligible for Special Immigrant Juvenile Status. In brief, since 1990, the federal government has provided Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status. However, SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court and a determination that the child is dependent on the state court in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court does not have jurisdiction beyond age 18, it has been constrained from making such findings for individuals who are 18, 19 or 20. The Justices made explicit and complimentary reference to the amicus brief during oral argument, and the Supreme Judicial Court held in-line with the brief, that the Probate and Family court does indeed have equity jurisdiction to make the requisite findings, and that plaintiff is dependent on the court for these purposes.

 11/2015 Fisher v. University of Texas at Austin
The first Fisher case, decided by the U.S. Supreme Court in 2013, was remanded to the Fifth Circuit for failing to apply strict scrutiny in its decision upholding the university’s race-conscious admissions policy. The BBA filed an amicus brief in Fisher I in August 2012. The Fifth Circuit endorsed the University’s use of racial preference in its admissions policy a second time in July 2014, and the Supreme Court agreed this summer to hear the case again. The BBA’s amicus brief in Fisher II argues that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, because under-representation of lawyers of color harms the legal profession and society as a whole. On June 23, 2016, the Supreme Court held in a 4-3 decision in line with our brief, ruling that the university’s race-conscious admissions policy was lawful under the Equal Protection Clause.

 7/2015 Wong v. Luu & Others
The Boston Bar Association drafted and submitted a brief in this case regarding the court’s inherent power to sanction attorney conduct.  The case stemmed from the trial judge’s order that an attorney who was allegedly responsible for the breakdown of a proposed settlement agreement among parties to the sale of three local supermarkets, must pay $240,000 in sanctions.  Our brief inspired a number of statements and bench questions at oral argument.It argues, and the SJC holding confirms, that the trial judge did not have authority to sanction the attorney in this case and the issue was more appropriate for review by the Board of Bar Overseers, to whom the trial judge had also referred the matter. The ruling provides valuable guidance, as our brief requested, on the court’s authority to sanction attorneys. Read more about this case here.

 12/2014 In re Guardianship of V.V.
The Boston Bar Association signed onto this amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions where someone other than the parent seeks to have him or herself appointed by the court as the child's guardian. The brief argues for a right to counsel in these cases based on constitutional due process and equal protection rights and policy considerations. It cites three different reports of BBA working groups and task forces on legal aid issues, including Investing in Justice, the recent report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  In early February 2015, the SJC's holding took the position urged by our brief.  Read more about the ruling here.  

 12/2013 Commonwealth of Massachusetts v. Rodrick James Taylor

The Boston Bar Association filed an amicus brief with the Supreme Judicial Court in Massachusetts in the case of Commonwealth v. Taylor. The BBA makes the case that when the prosecution fails to turn over mandatory automatic discovery, resulting continuances do not necessarily stop the speedy-trial clock. The BBA in its brief asks the court to resolve the tension between the requirement of Mass. R. Crim. P. 14 (a) that the Commonwealth produce certain categories of mandatory, automatic discovery, on the one hand, and the requirement of Mass. R. Crim. P. 36 (b) that defendants be brought to trial within one year (with only limited exceptions), on the other.

 3/2013 Richard Morse, Trustee v. Jonathan A. Kraft, et al.
The Boston Bar Association filed an amicus brief in the Massachusetts Supreme Judicial Court case Richard Morse, Trustee v. Jonathan A. Kraft et al. The case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees. The SJC did rule favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

 3/2013 RFF Family Partnership v. Burns & Levinson.
Arguing that Massachusetts will benefit from stating a clear rule applying the attorney-client privilege when a lawyer consults with in-house ethics counsel, the Boston Bar Association (BBA) filed an amicus brief in RFF Family Partnership v. Burns & Levinson.

"The issue presented by this appeal is important for all of the BBA's members who practice their profession in law firms, large or small, and for their clients," argues the brief. "The BBA therefore supports the adoption by this Court of a clear rule providing that the attorney-client privilege applies when a lawyer consults with in-house ethics counsel."

 3/2013 United States v. WindsorHollingsworth v. Perry
Underscoring its long-standing support for marriage equality, the Boston Bar Association announced its role as a signatory in amicus briefs in two cases before the Supreme Court of the United States: United States v. Windsor and Hollingsworth v. Perry. In both instances, the BBA joined a coalition of bar associations, civil and human rights groups, and public interest and legal services organizations.

 8/2012 Fisher v. University of Texas, et. al.,

The Boston Bar Association filed an amicus brief in Fisher v. University of Texas, et. al., Supreme Court of the United States No. 11-354. The question the Supreme Court expected to answer was "Whether [the] Court's decisions interpreting the Equal Protection Clause of the 14th Amendment, including Grutter v. Bollinger, permit the University of Texas at Austin's use of race in undergraduate admission decisions."

Joining the BBA in its amicus brief was a coalition of organizations united by a shared commitment to advancing diversity in the legal profession. These organizations share the BBA's concern for diversity in higher education, recognizing that diversity within the legal profession cannot be achieved without a pipeline of diverse law school students, and diversity at the law school level, in turn, cannot be supported without diverse representation in undergraduate institutions.

 4/2012 Rachel A. Bird Anderson v. BNY Mellon, N.A., et al.
Urging the Supreme Judicial Court to clarify estate planning law as it relates to Chapter 524 of the Acts of 2008 – a statute that amended the definition of “issue” to include adopted children in pre-1958 trusts, the Boston Bar Association filed an amicus brief in a case seeking answers to the questions:

Is the retroactive application of Chapter 524 to instruments executed prior to 1958 constitutional?
If so, what are the consequences for actions taken by fiduciaries in reliance on Chapter 524 prior to the SJC’s determination that such an application is constitutional?

The brief notes, “Families often rely on [established principles of construction] in making irrevocable alternate arrandments, such as gifts or bequests made in favor of adopted children who were (until the effective date of Chapter 524) not beneficiaries of certain family trusts.”

 11/2011 Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services, et al. No. 10-2204, and Nancy Gill et al v. Office of Personnel Management et al., No. 10-2207
Committed to ensuring that the Constitution’s guarantees of equal protection effectively protect all people from invidious discrimination, whether on account of race, gender, national origin, religion, alienage, or sexual orientation, the Boston Bar Association signed onto an amicus brief arguing that classifications based on sexual orientation must be subjected to heightened scrutiny.

The brief, written by the ACLU and Edwards Wildman Palmer LLP, concerned two cases that involved a constitutional challenge to Section 3 of the federal Defense of Marriage Act (“DOMA”) being heard before the First Circuit.

 1/2011 Fathers & Families, Inc. v. Chief Justice for Administration and Management
Amid a legal challenge to the Massachusetts Child Support Guidelines, the Boston Bar Association filed an amicus brief in the Supreme Judicial Court of Massachusetts arguing these and other points:

(1) The process whereby Massachusetts Child Support Guidelines have been promulgated is in compliance with the Massachusetts Constitution.

(2) Striking down the Guidelines. . .
         (a)  Would lead to uncertainty, instability, and inefficiency in awarding child support;
         (b)  Could jeopardize Federal Funding for the Commonwealth's Public Welfare Programs.


R.E.B.A. v. N.R.E.I.S.
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 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 (Morgan Lewis & Bockius LLP), emphasized 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 focused 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 concluded that if the District Court’s judgment was 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.


Paul Sperounes v. Alfred P. Farese Jr.
The BBA filed an amicus brief in the case of Paul Sperounes v. Alfred P. Farese, Jr., Trustree of ALPHFA Realty Trust, a Malden District Court case concerning whether a District Court had discretion to retain civil cases in excess of the statutory damages limit of $25,000.  The brief took the position that the conflict between different portions of the statute, and between the statute and the District Court’s own interpretation of the amendments, should be resolved so as to provide clarity to litigants. Finding the limit to be jurisdictional, as opposed to procedural, provides greater clarity. However, whether the SJC found that the $25,000 limit is jurisdictional or procedural, the SJC should provide guidance so that the District Court judges could determine which cases should be retained.


Bismullah v. Gates
The BBA signed onto an amicus brief drafted by the Association of the Bar of the City of New York in Bismullah v. Gates, a case pending in the U.S. Court of Appeals for the D. C. Circuit. The amicus brief was filed on behalf of a group of detainees at the U.S. Naval Base at Guantánamo Bay, Cuba, seeking a protective order governing proceedings against Respondent Secretary of Defense Robert M. Gates in order reasonably to protect access to classified information while addressing communications between the detainees and their counsel. The brief argues that legal representation is impaired if lawyers are not able to visit their clients as they find necessary to obtain the information they need and to consult with and inform their clients, as well as to establish the trust necessary to effective representation.


The Hanover Ins. Co. v. Rapo & Jepsen Ins. Svcs., Inc. and Arbella Mutual Ins. Company
Consistent with its long-standing support for preserving attorney-client privilege, the BBA filed an amicus brief in Hanover Ins. Company v. Rapo & Jepsen Ins. Services, Inc. and Arbella Mutual Ins. Company. This interlocutory appeal from the entry of a discovery order in an automobile dispute between insurers presented issues regarding attorney-client privilege and work product doctrine in the context of a joint defense agreement: whether Massachusetts law recognizes a joint defense privilege and whether an oral joint defense agreement is enforceable. The brief supported the appellants’ position that Massachusetts recognizes the common interest doctrine, sometimes known as the joint defense privilege.


American Civil Liberties Union, et al. v. National Security Agency, et al.
American Civil Liberties Union, et. al. v. National Security Agency, et. al. presented a challenge to the NSA’s wiretapping program on the grounds that it violated attorney-client privilege. The BBA signed onto this amicus brief drafted by the Association of the Bar of the City of New York in support of the preservation of attorney-client privilege.


Suffolk Construction Co. v. Commonwealth of Massachusetts, Division of Capital Asset Management (DCAM )
The BBA supported DCAM’s position on the policy ground that documents of government agencies/employees should enjoy protection from disclosure under the public records law if the documents are subject to attorney-client privilege.


Superadio Limited Partnership v. Walt "Baby” Love Productions
This case concerned the issue of whether an out-of-state attorney representing a client in an arbitration proceeding in Massachusetts constituted the unauthorized practice of law and, if so, whether the arbitration award should be vacated. The BBA brief made the following two points: 1) It is not the “unauthorized practice of law” for a lawyer admitted in another state to represent a client in an arbitration sited in Massachusetts when permitted to do so by the arbitrator or arbitral tribunal; and, 2) Regardless of whether it constitutes the “unauthorized practice of law,” the fact that a prevailing party in an arbitration was represented by out-of-state counsel is not grounds for vacating an arbitral award.


U.S. v. Darryl Green, Branden Morris, Jonathan Hart, and Edward Washington
This federal death penalty case also opened the issues of the importance of diverse juries and revisions to the Jury Selection Plan. This brief was submitted by the BBA in support of an order issued by Judge Gertner that imposed measures to ensure adequate minority representation on the jury. The BBA brief stressed the importance of having representative juries.


Comfort et al. v. Lynn School Committee et al.
The BBA's brief in this case pertained to the legality of a desegregation plan implemented by the Lynn School Committee. By signing onto an amicus brief in support of the plan, the BBA reiterated its position that segregated schools are unacceptable, and that children learn best in a diverse environment. In Comfort v. Lynn School Committee, the U.S. District Court in 2003 upheld the legality of a plan adopted by the Lynn School Committee in 1989 to ameliorate within its public schools the racial tensions and related misconduct in a school system that reflected the pattern of residential racial segregation. That plan assigned children to their neighborhood schools, but allowed them to transfer, so long as the transfer did not exacerbate segregation in either the school the children were seeking to leave or the receiving school. In October 2004, a 3-judge panel of the First Circuit Court of Appeals found the plan to be illegal. In June 2005, the First Circuit Court of Appeals en banc upheld the Lynn desegregation plan.


Sandra and Roberta Cote-Whitacre et al. v. Department of Public Health et al.
Prevents non-resident couples from marrying in Massachusetts if that marriage would be void in their home state. Consistent with its position in Goodridge that discrimination against gays and lesbians is unacceptable, the BBA filed this amicus brief supporting the plaintiffs' claims that the Department of Public Health’s enforcement of M.G.L. c. 207, §§ 11-12 to prevent city and town clerks from issuing marriage licenses to same-sex couples residing in other states violates provisions of the United States and Massachusetts Constitutions.


Lavallee et al v. The Justices of the Hampden Superior Court and Carabello et al v. The Justices of the Holyoke District Court
Bar advocate compensation – the BBA submitted an independent amicus brief outlining the chronic failure of the Commonwealth to adequately fund criminal defense services for indigents.  The brief urges increased rates of compensation as necessary to assure competent criminal defense services for indigents


Grutter v. Bollinger
Michigan affirmative action case - The BBA reiterated its position that race conscious admission policies are vital to integrating the legal profession and concluded that race conscious admission policies are positive, necessary, and constitutional.  Not having such policy would harm the flow of integration in the legal profession.


Goodridge v. Dept. of Pub. Health
Same sex couples right to marriage - The BBA filed this brief in support of gay marriage as a civil rights issue stating that discrimination against gays and lesbians is unacceptable and unconstitutional.

 2/2001 Williams, et al. v. United States
A petition for a writ of certiorari to be granted by the US Court of Appeals to review the constitutionality of Congresional legislation.  That law withheld, from federal judges, annual cost-of-living allowances that were provided for under the Ethics Reform Act of 1989.  The BBA signed onto the brief due to its concern about the damage caused to an independent judiciary by inadequate compensation.


U.S. v. Legal Services of New York City
Attorney client privilege for legal services recipients - The BBA’s position in this brief was that disclosing information protected by attorney-client privilege to the Inspector General of the Legal Services Corporation to discover the names of legally indigent clients coupled with their specific motives for seeking legal assistance defeats the purpose of the privilege.


Donald K. Stern v. Supreme Judicial Court, et al.
This case concerned rules that applied constraints to the behavior of federal prosecutors. The BBA stated that the adoption of Rule 3.8 f was a proper exercise of the district court to regulate the conduct of attorneys appearing before it. Furthermore, Rule 3.8 f was a valid exercise of the district court’s power to protect the attorney client relationship.

 1990 Tax on Legal Services Amicus Briefs
Following a request from the Governor for an advisory opinion on proposed legislation to extend the sales tax to legal services, the BBA and the MBA submitted an amicus brief arguing that such an extension violates both the Massachusetts and United States Constitutions.


Commonwealth v. Abimael Colon-Cruz, Jose Colon and Miguel Angel Rosado
The Boston Bar Association filed an amicus brief in Commonwealth v. Abimael Colon-Cruz, Jose Colon and Miguel Angel Rosado, challenging the constitutionality of the Massachusetts death penalty statute enacted in 1982. The brief also argued that it imposed “devastating burdens on the Bar."

 5/1975 Commonwealth v. O'Neal
The Boston Bar Association filed its first brief opposing the death penalty in Commonwealth v. O'Neal, a case regarding the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such a defendant would not consider variations in punishments given their twisted and psychotic mental state. The brief also established mainstays of the BBA's arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in these cases. The court overturned the state's unconstitutional mandatory death penalty provision.