PUBLIC SESSION
MEETING CONVENED
Committee Chair and Commission Vice Chair R. Marc Kantrowitz called the meeting to order at 10:14 a.m. Also in attendance were Committee member and Commission Chair Maria J. Krokidas and Committee member and Commission Executive Director David A. Wilson. Committee Chair Kantrowitz, Chair Krokidas, and Mr. Wilson participated remotely.
REMOTE PARTICIPATION
Committee Chair Kantrowitz announced that the meeting would take place remotely pursuant to the law signed by Governor Baker on June 16, 2021 extending certain COVID-19 measures adopted during the state of emergency. He stated that members of the public had been invited to watch and listen to the public session via Zoom Webinar. Committee Chair Kantrowitz noted that all votes at the meeting would be taken by roll call.
APPROVAL OF MEETING MINUTES
On the motion of Committee Chair Kantrowitz, seconded by Mr. Wilson, the Committee voted 3-0 to waive the reading and approve the public session minutes of the November 15, 2021 Committee meeting.
| Vote: | |
|---|---|
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Yes |
| Committee Member Wilson | Yes |
DISCUSSION
Pro Bono Counsel Policy
Assistant General Counsel T. Michael McDonald presented his memorandum regarding a potential Commission pro bono counsel policy. He reported that the Probate and Family Court’s Lawyer for the Day Program continued to operate remotely and provides limited representation to unrepresented litigants without an indigency requirement. Mr. McDonald further reported that the Massachusetts Commission Against Discrimination does not have a pro bono program for respondents, who are generally represented entities, and that the Board of Bar Overseers (BBO) did not receive opposition from the private ethics bar when it established its pro bono panel. He noted that BBO attorneys who undertake matters pro bono generally continue to represent their clients without charge throughout the representation.
Chair Krokidas suggested that the Committee consider when pro bono counsel should first be made available to a potential respondent. Enforcement Division Chief Monica Brookman said that counsel would be particularly helpful after the Commission finds reasonable cause because respondents often have questions about the adjudicatory process. Committee Chair Kantrowitz asked when subjects first become aware of an investigation. Ms. Brookman explained that subjects generally do not learn of a preliminary inquiry until they receive notice of it, although they may be contacted during an informal investigation. Committee Chair Kantrowitz suggested that information concerning pro bono counsel could be included when a subject is first notified.
Executive Director David A. Wilson expressed concern about offering pro bono counsel at the beginning of an investigation. He noted that the Commission is a law enforcement agency conducting civil proceedings and that routinely involving attorneys during investigations could slow the Enforcement Division’s work. Mr. Wilson said that pro bono representation could be particularly useful when a subject receives an opportunity to make a 3D Submission before the Commission determines whether reasonable cause exists, or during subsequent adjudicatory proceedings. Chair Krokidas said that the 3D Submission stage appeared to be an appropriate time to introduce the availability of pro bono counsel.
Ms. Brookman said that she agreed that routinely involving counsel during informal investigations could create additional delay and explained that most matters are resolved at an early stage. She said that Commission investigators explain the process to subjects when necessary and that counsel could be helpful in some circumstances, particularly at the 3D Submission stage or after a finding of reasonable cause. Mr. Wilson emphasized that the Commission should not characterize pro bono representation as a right to counsel because there may not always be an attorney available.
Chair Krokidas noted that pro se respondents frequently require assistance understanding the adjudicatory process and that providing access to counsel could also reduce the burden on Legal Advisors, who must remain impartial while assisting hearing officers and administering adjudicatory proceedings.
Committee Chair Kantrowitz asked how the Commission could recruit pro bono attorneys. Mr. McDonald suggested following the BBO model by advertising the program in Massachusetts Lawyers Weekly and through affinity bar associations and soliciting resumes and letters of interest. He said that the Commission could initially establish a pilot program and assess the level of interest from attorneys. Mr. McDonald stated that full representation would be preferable to limited representation, although a limited-service model could also be considered.
General Counsel/Legal Division Chief Eve Slattery explained that the Commission would act as a matchmaker between respondents and volunteer attorneys and that the expectation would be that representation remain pro bono throughout the matter, including appearances before the Commission. She noted that the program could provide attorneys, including attorneys at larger firms, with opportunities to gain hearing experience. Mr. McDonald said that resumes could help the Commission assess applicants’ relevant experience and noted that the BBO also seeks attorneys from diverse practices and geographic areas. Ms. Slattery added that requiring a resume and letter of interest could help identify attorneys who are serious about participating.
Mr. Wilson suggested that applicants also complete a questionnaire describing the type and extent of representation they would be willing to provide. He explained that some attorneys may be interested in full representation while others may prefer shorter or more limited commitments. Committee Chair Kantrowitz asked what information respondents currently receive concerning the Commission’s process. Ms. Brookman explained that notice of a preliminary inquiry includes the Commission’s Enforcement Procedures and Rules and Regulations and that additional information is available on the Commission’s website. Ms. Slattery noted that guidance is also available for pro se respondents. Mr. McDonald suggested providing participating attorneys with training on the conflict of interest law and written materials similar to those provided to members of the BBO pro bono panel.
Committee Chair Kantrowitz asked how frequently the program might be used. Mr. Wilson responded that, if the Commission could establish a sufficient pool of attorneys, he expected respondents would use the program frequently. Committee Chair Kantrowitz asked whether law schools could also be contacted regarding participation. Mr. Wilson said that outreach to law schools could be included in the recruitment effort and that clinical law students authorized for limited practice might be able to assist respondents.
Chair Krokidas said that, if the Committee wished to proceed with a pilot program, Commission staff should develop a description of the proposed program that could be distributed to the bar to determine the level of interest. She said the Committee would also need to determine when pro bono representation would first be offered and whether representation would remain pro bono throughout the proceeding.
Committee Chair Kantrowitz asked whether respondents should be charged a nominal fee. Chair Krokidas said that administering such a fee would likely outweigh any benefit and noted that respondents with sufficient means could retain private counsel. Mr. Wilson said that a fee could transform the relationship from a volunteer arrangement into a transactional one and suggested first determining whether sufficient attorneys would participate without compensation. He stated that the Committee should recommend that Commission staff develop a proposed pilot program for consideration by the full Commission.
Ms. Slattery said that she and Mr. McDonald would prepare a draft policy for review and would attempt to have it ready for the Commission meeting in March. She explained that Committee members could individually provide comments to Commission staff but could not circulate their comments among themselves outside of a public meeting. Committee Chair Kantrowitz said that he hoped Chair Krokidas would have an opportunity to provide input before leaving the Commission. Ms. Slattery said that Commission staff would circulate a draft, receive individual comments, and return to the Committee for further discussion.
Committee Chair Kantrowitz requested that the Committee also discuss confidentiality and the possible use of independent hearing officers at a future meeting. He noted that the Supreme Judicial Court had upheld the Commission’s existing hearing officer process but said he wanted to consider whether the Commission should nevertheless change its practice. Mr. Wilson said that he did not recall a particular prior memorandum addressing independent hearing officers but noted that the Commission’s existing procedure had been upheld by the Supreme Judicial Court. Chair Krokidas asked Committee Chair Kantrowitz to provide her with the case addressing the issue.
ADJOURN MEETING
At 11:04 a.m., on the motion of Committee Chair Kantrowitz, seconded by Mr. Wilson, the Committee voted 3-0 to adjourn.
| Vote: | |
|---|---|
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Yes |
| Committee Member Wilson | Yes |
LIST OF DOCUMENTS USED AT THIS MEETING
- Agenda for the Legal Committee Meeting of January 27, 2022
- Minutes of the Legal Committee Meeting of November 15, 2021 Public Session
- Memorandum dated January 6, 2022 from Assistant General Counsel T. Michael McDonald to the Commission concerning a potential Commission pro bono counsel policy
Respectfully submitted,
Arthur Xia
Program Coordinator