Boston Bar Amicus Argument Wins the Day in REBA's First Circuit Appeal

Tuesday, June 22, 2010

Citing arguments made in an amicus brief submitted by the Boston Bar Association, the U.S. Court of Appeals for the First Circuit yesterday ruled that a judgment of $904,076.17 in attorneys' fees against the Real Estate Bar Association (REBA) violated REBA's First Amendment right to bring a non-frivolous lawsuit. The appeal followed a U.S. District Court decision in REBA v. National Real Estate Information Services (NREIS) and NREIS Inc.

The BBA's brief was drafted by Jonathan M. Albano, Brandon L. Bigelow, and Julie S. Palmer of Bingham McCutchen LLP. The influence of the brief leaps off the pages of the First Circuit decision:

"As to the First Amendment issue, it is clearly one of 'constitutional magnitude.' It is also an issue of great public concern, having significance to the administration of justice in the federal courts. No party bringing suit should fear that its non-frivolous advocacy of reasonable position in federal court will, on that basis alone, lead to an injunction and declaration against it based on the dormant Commerce Clause. Much less should a party be made, based on its conduct in bringing such a suit, to fear the imposition of attorney's fees. . . The law is quite clear and this court has received the benefit of briefing on the issue from NREIS and the amicus Boston Bar Association."

The court dealt with several issues in its 33 page opinion, and certified to the Supreme Judicial Court of Massachusetts the question of whether the defendants' business constituted the unauthorized practice of law in Massachusetts.

The BBA's Amicus Committee is chaired by Julia Huston of Foley Hoag. The BBA will only file or join an amicus brief related to the practice of law or the administration of justice.