Massachusetts Adopts “Red Flag” Law

Stevens

by Bethany Stevens

Heads Up

Massachusetts law has long provided two tools to suspend a person’s lawful access to firearms:  a firearms licensing authority could suspend a person’s license to carry or possess a firearm if it found the person was unsuitable, or a court could — indeed, is required to — suspend a firearms license and order the surrender of the person’s firearms after finding a substantial likelihood of an immediate danger of abuse of a household or family member pursuant to G.L. c. 209A.  Massachusetts has now added a third tool, modeled after “red flag” laws in other states, to allow seizure of the firearms of persons who present a risk to themselves or others.  As of August 17, 2018, the District Court and Boston Municipal Court may now issue an “extreme risk protection order” to compel a person to immediately surrender firearms and ammunition on the petition of a household member, family member or licensing authority without the need for a finding of abuse.  See G.L. c. 140, §§ 131R-131Z.

What is an Extreme Risk Protection Order?

An extreme risk protection order (sometimes referred to as an “ERPO”) immediately suspends a person’s license to carry or possess a firearm and directs the person to immediately surrender their firearms licenses, guns (including stun guns), and ammunition to the licensing authority in the municipality where the person resides.  An ERPO may issue only upon a finding that the person “poses a risk of bodily injury to self or others by being in possession of a [firearms license] or having in his control, ownership or possession [guns or ammunition].”  G.L. c. 140, § 131T(a). While the order is in effect, the respondent is disqualified from obtaining a firearms license and is prohibited from possessing a firearms license, gun or ammunition.  A violation of the order is a misdemeanor criminal offense.

Who Can Seek an Order?

The new law allows a household or family member, defined as those phrases are used in G.L. c. 209A, to file a petition with the court upon “belie[f] that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others.”  G.L. c. 140, § 131R.  A petition may also be filed by the licensing authority where the respondent resides (defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121).  In some instances, the licensing authority where the respondent resides will not be the authority that actually issued the respondent’s firearms license(s) because a person could be licensed by the police department of the municipality in which the person works or because a person might move to a different municipality after licensing.  G.L. c. 140, §§ 129B(1), 129B(11),  and 131(d).

Individuals who are not family or household members may not petition a court for an ERPO, even though in appropriate instances they may seek a harassment protection order under G.L. c. 258E.  Chapter 258E does not authorize a harassment prevention order to include an order to surrender firearms.  J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017).  As a result, if an individual who is not a member of a license-holder’s family or household believes that a license-holder poses a risk to themselves or others, the individual should seek appropriate relief by reporting the information to an eligible ERPO petitioner.

Procedure to Issue an Order

The new law bears many procedural similarities to G.L. c. 209A.  A petitioner who seeks an ERPO must file a petition signed under the pains and penalties of perjury.  If on review the judge “finds reasonable cause to conclude that the respondent poses a risk of bodily injury to self or others” by possessing a firearms license, guns or ammunition, the judge may issue an emergency or temporary extreme risk protection order without first giving notice to the respondent.  G.L. c. 140, § 131T(a).  An emergency order issued during court hours is valid for only 10 days.  Like an emergency order under c. 209A, an emergency ERPO issued after court hours by an on-call judge is valid only until the end of the next court day.  If a petitioner seeks to have such an “after hours” emergency order extended beyond the next court day, the petitioner must appear during court hours for a hearing at the appropriate court with jurisdiction over the city or town where the respondent lives.

Because an ERPO suspends a person’s lawful access to guns and ammunition, an ERPO will not issue when the person has no license to suspend. Rather than issuing an ERPO, the court will provide the information to police to take whatever action is warranted when they learn information related to the illegal possession of firearms. If in these circumstances the petitioner is a household or family member concerned about their own safety, they should consider seeking a c. 209A order.

For an ERPO to be extended up to one year, the court must hold a hearing within ten days of the filing of the petition with notice to the respondent at least seven days prior to the hearing. The respondent can waive this notice period.  If the respondent files an affidavit stating that guns are required in the performance of the respondent’s employment, the hearing must be held within two days of the petition being filed. At the hearing, the petitioner must establish by a preponderance of the evidence that the respondent poses a risk of bodily injury to self or others by possessing guns or ammunition. If the judge so finds, the judge must issue an order for up to one year.  Either party may move to modify, suspend or terminate an active order.  Appeals of ERPO proceedings may be taken to the Appeals Court just as c. 209A orders may be appealed.

Effect of an Order

Whenever a court issues an ERPO, the licensing authority and the criminal justice information service database (CJIS) must be notified.  This triggers suspension of any Massachusetts firearms license and disqualifies the respondent from obtaining a new firearms license in Massachusetts.  This is the same process that occurs when a c. 209A order issues:  CJIS and licensing authorities are notified of c. 209A orders as such orders generally require immediate suspension of a firearms license and surrender of guns and ammunition.  G.L. c. 209A, §§ 3B and 3C.

The new statute allowing courts to issue extreme risk protection orders does not replace a licensing authority’s ability to suspend a firearms license.  Therefore, under G.L. c. 140, § 129B (firearm identification cards) or § 131 (licenses to carry), the chief of police who issued the license or their designee may still suspend a person’s license and require surrender of guns and ammunition upon finding the licensee “unsuitable.” This determination by the licensing authority results in immediate suspension of the firearms license without the need for a court ruling.

Restoration of Firearms License

While issuing an extreme risk protection order is a process separate from the licensing authority’s determination of suitability, the two processes converge upon an ERPO’s expiration or termination.   After an ERPO is issued, a firearms license, guns, and ammunition may be returned to the respondent only after the licensing authority where the respondent resides determines that the respondent is suitable. A determination of unsuitability must be based either on reliable information that the person “has exhibited or engaged in behavior to suggest the [person] could potentially create a risk to public safety” or on “existing factors that suggest that the [person] could potentially create a risk to public safety.”  G.L. c. 140, § 129B(1½)(d) . If denied reinstatement, a respondent presumably could seek judicial review under existing license appeal procedures, although the new statute does not explicitly provide for such judicial review.

Reports on the New Law’s Use

By December 31, 2018, we will learn more about the utility of this new law.  The court must provide an annual statistical report on its use, including the number of petitions filed, petitions granted, and petitions that led to surrender of guns, as well as demographic information about respondents and petitioners.  In the meantime, information about extreme risk protection orders and the forms a petitioner is required to file can be found on the court’s website. 

Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.


Extensive Amendments to the Massachusetts Rules of Appellate Procedure Effective in 2019

StantonMalone

by Joseph Stanton & Patricia Campbell Malone

Heads Up

The Supreme Judicial Court has approved extensive amendments to the Massachusetts Rules of Appellate Procedure (“Rules”), which become effective on March 1, 2019.  This article summarizes by topic the most significant amendments.

Background.  The amendments are the product of a four-year study of the Rules conducted by the Appellate Rules Subcommittee (“Subcommittee”) of the Supreme Judicial Court Standing Advisory Committee on Civil and Appellate Procedure, in conjunction with the Standing Advisory Committee on the Rules of Criminal Procedure.  The Subcommittee included appellate judges, appellate and trial court clerks, and attorneys with expertise in civil and criminal appeals.

The Subcommittee reviewed the Rules and prepared amendments to:  facilitate the just and expeditious resolution of appeals; clarify and simplify filing and formatting requirements; eliminate arcane language and incorporate consistent style and terminology; integrate existing practices and procedures; and facilitate the implementation of paperless court processes. Valuable public comments were received from the Boston Bar Association and other organizations and attorneys.

Universal Amendments.  Global revisions to the Rules include:  use of gender-neutral references; removal of provisions rendered obsolete by technological developments and work processes; numbering and collapsing of lengthy freestanding paragraphs to facilitate ease of reference; consistency in the numbering of provisions; revising the Rules’ shorter filing deadlines (i.e., non-brief or notice of appeal) to be in increments of 7 days to increase the likelihood that the deadline falls on a business day; and changing all use of “opposition” to “response” to reflect that a nonmoving party may respond to the moving party’s request, but not necessarily oppose that request.

Time Period for Filing Notice of Appeal.  Amendments to Rule 4 clarify that if multiple post-judgment motions are filed, the time for filing a notice of appeal for all parties begins on the date when the lower court enters the order that disposes of the last remaining motion enumerated in the Rule, and that the filing of a motion under Mass. R. Civ. P. 60(a) to correct a clerical error does not toll the time period.

Assembly of the Record, Timing and Contents.  To prevent delay in completing assembly of the record, amendments to Rule 9(a) establish a 21-day deadline for the clerk of the lower court to complete assembly of the record.  The time period begins to run from the later of certain occurrences, including either the receipt of the entire transcript, approval of an agreed statement of the record, or a notice that the appellant does not intend to order a transcript.  In addition, amended Rule 9(e) identifies in a checklist format the items and information that the lower court clerk must include in the assembly package.

Transcripts.  Amendments to Rule 8 were adopted from recommendations made by the Trial Court Working Group on Assembly of the Record, convened by the Chief Justice of the Trial Court to coordinate with the Appellate Rules Subcommittee to modernize and streamline the transcript production processes.  Amended Rule 8 is simplified by focusing on an appellant’s duty to file with the clerk and serve on all parties within 14 days an order of all relevant proceedings to be transcribed, a statement certifying that no court proceedings are relevant, or a statement certifying that all relevant transcripts are already on file with the lower court.   Reference to service of designation (and counter-designation) of parts of the cassette to be transcribed was deleted and amended Rule 8 simply directs an appellee to, if necessary, order the transcript of any additional relevant proceedings within 14 days of the appellant’s order.  An Administrative Order of the Chief Justice of the Trial Court now governs technical details such as submission of the transcript order form (which depends on the type of proceeding and method by which it was recorded), payment, indigency, and delivery of the electronic transcript.

Docketing the Appeal.  In Rule 10, the time period for appellants and cross-appellants in civil cases to docket their appeal was increased from 10 to 14 days and a new provision was added to deem payment or request for waiver timely if mailed with a certificate attesting that the day of mailing was within 14 days of the filer’s receipt of the notice of assembly.  These changes are intended to provide appellants additional time to docket the appeal, reduce the need for motions to docket appeals late, and obviate the need for parties to physically travel to the courthouse if attempting to docket an appeal on the final day.

Word Count Limit and Proportionally Spaced Font Alternative to Page Limits.  One of the most significant amendments to the Rules appears in Rule 20(a)(2).  It allows, as does Fed. R. App. P. 32(a)(7), the option for filers to submit documents using a word-count limit and a proportionally spaced font (e.g., Times New Roman) as an alternative to the traditional page limit and monospaced font (e.g., Courier New) requirement.  This option is incorporated into each Rule that previously contained a page limit.  For example, an appellant or appellee filing a brief in a non-cross appeal could, instead of using the 50-page limit, use an 11,000-word limit in a proportionally spaced font.  When a proportionally spaced font is used, the font size shall be 14 or larger, all margins 1 inch or larger, and the Rule 16(k) certificate must state how compliance with the word limit was ascertained.  These amendments are intended to improve documents’ readability and to eliminate the considerable time parties sometimes spend using formatting devices solely to comply with the current page limits.  Notably, the specific word-count limits differ from the Federal Rules applicable to the various briefs and other filings because adopting the Federal word-count limits would lead to substantially longer filings than currently authorized by the traditional Massachusetts standards.  The Rules continue to permit a filer to seek leave to exceed the maximum word-count or page limit, upon a showing of extraordinary reasons.

Filing and Serving Documents.  Rule 1(c)’s definition of “[f]irst class mail” was expanded to “[f]irst class mail or its equivalent” to explicitly allow the common practice of using third-party commercial carriers to file documents.  For the same reason, Rule 13 was amended to allow electronic service (such as through eFileMA.com or e-mail) with the consent of the party being served.  The required contents of a certificate of service were modified to promote consistency with the appellate courts’ electronic-filing procedures.

“Inmate Mailbox Rule.”  The amendments incorporate in all civil and criminal appeals the so-called “inmate mailbox rule” to the filing of a notice of appeal (Rule 4) and all other documents (Rule 13) by self-represented parties confined in an institution.  These amendments are intended to incorporate the concerns highlighted by the Supreme Judicial Court in Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), as to the limitations of a person confined in an institution to effectuate the “mailing” of a document on a certain day.  Documents will be deemed filed on the date an inmate deposits the document in the institution’s internal mail system, and then the time period for any party to respond to an inmate’s filing runs from the date the filing is docketed by the appellate court.

Motions.  Although Rule 15(b) continues to allow an appellate court to act on motions for procedural orders without awaiting a response, Rule 15(a) was amended to encourage parties to state in their motion whether it is assented to, opposed, and, if opposed, whether the other party intends to file an opposition.  This is intended to encourage the parties to communicate about whether a response will be filed prior to the filing of a motion to avoid the unnecessary consumption of time, effort, and expense to both the parties and the appellate court.

Throughout the Rules, references to Rule 27 “Petitions for Rehearing” were changed to “Motion[s] for Reconsideration or Modification of Decision” to more appropriately describe such filings which rarely, if ever, seek an oral argument and rehearing of a case before the justices and instead typically request a reconsideration or modification of the decision.

Amended Rule 29(b) requires a motion for voluntary dismissal in a criminal case to be accompanied by an affidavit by the defendant-appellant or include an attestation by counsel stating that the defendant-appellant assents to the dismissal of an appeal with prejudice.  This new requirement codifies the appellate courts’ long-standing requirement for such supporting documentation.  It does not apply when the motion states that the appeal is moot.

Content of Briefs.  Rule 16(a) was reorganized to detail, in checklist format, the contents of an appellant’s brief.  The amended Rule explicitly states existing requirements that were not previously referenced in the Rules, such as the need for a corporate disclosure statement in accordance with S.J.C. Rule 1:21, and the decisional-law requirement that any request for an award of appellate attorney’s fees be made in the brief.  The amendments also create new requirements that a party identify the standard of review for each issue raised, and include record references in the statement of the case section.  Similar to Appeals Court Rule 1:28’s requirement that a brief’s addendum include copies of any cited Appeals Court unpublished decision, Rule 16 now requires a brief’s addendum to include a copy of any unpublished decision cited in the brief.  A summary of the argument is now required for briefs with argument sections exceeding 20 pages (previously 24 pages) or 4,500 words if the brief is produced in a proportionally spaced font.

Rule 16(b) incorporates the requirements of an appellant’s brief and applies them to an appellee’s brief, except as otherwise provided, and includes a new requirement that the appellee include an addendum just like an appellant, even if the materials included were already included in the appellant’s addendum.

New Rule 16(j) clarifies that a party may file only one brief in response to the service of multiple briefs, and may not file separate briefs in response to each brief.  Finally, new Rule 16(n) details the procedures for filing an amended brief, including that a motion showing good cause is required, and clarifies that unless otherwise ordered, the filing of an amended brief has no effect on any filing deadlines.

Record Appendices.  Rule 18 was reorganized to detail, in checklist format, the required contents of a record appendix.  The Rule also now cautions parties that the lower court does not transmit the entire record to the appellate court and that the failure to provide sufficient transcripts can result in waiver of issues.  These warnings are intended to remove sources of confusion that often befuddle attorneys and self-represented litigants.

Briefing in Cross Appeals.  Another significant amendment to the Rules concerns briefing in a cross appeal, delineated in Rule 20(a)(3).  Consistent with Fed. R. App. P. 28.1, the amended Rule recognizes that in an appellee/cross-appellant’s principal brief, the appellee must both respond to the arguments in the appellant’s brief and present the appellee’s arguments in the cross appeal, and that the appellant/cross-appellee’s reply brief must both respond to the arguments in the appellee’s principal brief in the cross appeal and reply to the appellee’s arguments in the appeal.  Accordingly, Rule 20(a)(3) enlarges the limit of the appellee/cross-appellant’s brief to 60 pages or 13,000 words, and the appellant/cross-appellee’s reply brief to 50 pages or 11,000 words.

Amicus Briefs.  Rule 17 now clarifies that a motion for leave to file is not required when an appellate court has solicited amicus briefs in the case.  It also features a uniform filing deadline for all amicus briefs of 21 days prior to oral argument, unless leave is given for later filing.  While making the formatting provisions of Rule 20 applicable to an amicus brief, the amendments provide that an amicus brief need only include certain enumerated content requirements of a party’s brief in Rule 16 (i.e., amicus briefs need not provide statements of the case, facts, or standard of review).  Consistent with Fed. R. App. P. 29 and Supreme Judicial Court precedent, Rule 17 now requires disclosure of certain information relating to an amicus curiae or its counsel’s relationship to a party or interest in the relevant legal issue or transaction.

Format of Filings.  Amendments to Rule 20 modify and clarify the format requirements for filings and are intended to promote consistency with the appellate courts’ electronic-filing procedures.  Importantly, the amended Rule states that page numbers shall appear in the margin and begin pagination with the cover as page 1, and pages thereafter numbered consecutively through the last page.  Any addendum should continue the pagination of the document itself without beginning again at page 1.  In cases involving multi-volume appendices, each volume shall be separately paginated.  Color covers remain a requirement for paper-filed briefs, but no color cover is required for any electronically-filed brief.

Number of Paper Copies of Brief and Record Appendix to be Filed.  Amendments to Rule 19 reduce the number of paper copies of a brief and record appendix filed in the Appeals Court from 7 to 4, and in the Supreme Judicial Court from 18 to 7.  Due to advances in the appellate courts’ paperless practices, fewer copies of each document are needed to process and review filings.  Notably, as of September 1, 2018, the Appeals Court Standing Order Concerning Electronic Filing requires all attorneys with cases in the Appeals Court to register in eFileMA.com and to e-file all briefs and appendices in non-impounded criminal and civil appeals, and encourages the e-filing of impounded documents in all cases.

E-Filing Costs Taxable in Civil Cases.  Amendments to Rule 26 include as taxable costs the fees incurred using the electronic-filing system, which include administrative fees and convenience fees, such as credit card convenience fees.

Distinguishing “Decision” from “Rescript.”  Rules 1, 23, 27, and 27.1 were amended to clarify the distinction between the appellate clerk’s release of a decision to the parties and the public, and the clerk’s issuance of the rescript to the lower court.  It is the release of the “decision” as defined in Rule 1(c) that commences the timeframe to file a motion for reconsideration or modification of decision (formerly known as a “petition for rehearing”) or an application for further appellate review.

Electronic Notice from Clerk.  Rule 31 was amended to provide that the clerk shall send notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and may send paper notice by conventional mail.

Effective Date.  The amendments will become effective March 1, 2019 and govern procedures in appeals to an appellate court then pending and thereafter commenced.  In advance of the effective date, parties are invited by the appellate courts to immediately begin filing their appellate documents in compliance with the formatting and filing provisions of the amended Rules, on a voluntary basis.  This includes use of the new word count alternative to the page limit and the filing of a reduced number of copies of briefs and appendices in the Supreme Judicial Court.  However, amendments affecting time deadlines do not become effective until March 1, 2019 and until that date parties must continue to use the existing time deadlines.

Where to Find the Amended Rules.  The Rules in their proposed form and the Supreme Judicial Court’s approval may be viewed on the Judicial Branch’s website.

Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on numerous Supreme Judicial Court and Trial Court committees, including as chair of the rules of appellate procedure subcommittee.

Patricia Campbell Malone is an Assistant Clerk at the Massachusetts Appeals Court. She served as a member of the rules of appellate procedure subcommittee.


Successful Alternatives: Juvenile Diversion and Restorative Justice in Suffolk County

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by Former Suffolk County District Attorney Daniel F. Conley, Assistant District Attorney Michael V. Glennon and Erin Freeborn, Executive Director of Communities for Restorative Justice

Heads Up

Since 2017 prosecutors in Suffolk County have made efforts to improve and modernize their approach to juvenile justice. These efforts include an ambitious juvenile diversion program and, more recently, a restorative justice initiative, in partnership with Communities for Restorative Justice to give victims of crime an opportunity to address the people who have harmed them. The diversion program seeks to identify the needs and risk factors that pre-date offense and arrest, and to address them outside the traditional juvenile justice system. The restorative justice initiative is a voluntary process by which offenders, victims, and members of the community come together to collectively identify and address the harms, needs, and obligations created by, and identified as a result of, a criminal act. The combined result is a model that may prove valuable for other prosecutors’ offices nationwide.

Most juveniles who enter the justice system have a complex set of needs and risk factors that pre-date offense and arrest. Research shows that identifying and addressing these makes for effective rehabilitation efforts. For too many young people, however, the opportunities for this type of assessment are frequently missed until their conduct brings them into contact with the juvenile justice system, and is often delayed until after a juvenile has been charged, prosecuted, and adjudicated delinquent. In a busy, urban court system, where most juveniles are released to their parents, this process can take months or years – during which time those needs and risks may remain unaddressed.

Prosecutor-led diversion efforts, such as the Juvenile Alternative Resolution Program (“JAR”), can fill this gap meaningfully and effectively. Overseen through the DA’s Juvenile Unit, the Suffolk County JAR program seeks to support juveniles with a moderate or high risk assessment, while low-risk juveniles (those charged with first- or second-time misdemeanor offenses) are usually diverted informally with minimal supervision. Only the most serious offenses – sex offenses, gun crimes, and crimes causing serious injury to a victim – are automatically ineligible for diversion. Since the JAR program launched last year, it has accepted 70 juveniles charged with more than 100 separate offenses. Only three participants – less than 5% – have been removed from the program for violating the terms of participation. Thirty have successfully completed the program and the remaining 40 are on track to do so. Since the pilot phase ended, JAR has expanded to include more neighborhoods in Boston and is expected to nearly double in capacity, taking in close to 100 juveniles during the second year. Overall, about 65% of Suffolk County delinquency proceedings, or over 500 cases, are diverted informally or formally through JAR – 10 times more than are subject to youthful offender indictments

This success is particularly notable because the JAR program accepts juveniles who present with higher risk factors, which is possible because candidates complete a two-stage screening process to determine the level and nature of services appropriate to their circumstances. Courtroom prosecutors first assess the juvenile using the Ohio Youth Assessment System – Diversion (OYAS-DIV) tool to determine risk level and help the prosecutor determine whether informal diversion, formal diversion through JAR, or traditional juvenile proceedings are appropriate. For JAR-eligible candidates, the DA’s diversion coordinator meets with the juvenile and guardian separately to perform a more extensive assessment interview, including completion of the Youth Level of Services/Case Management Inventory (YLS/CMI) 2.0 assessment, which determines the juvenile’s criminogenic needs and strengths. Specific risk factors and needs that lead to criminal behavior are identified and categorized. Once the areas of highest risk are identified, the juvenile immediately enters programming tailored to their needs in order to mitigate them and lower the likelihood that they will re-offend. This has resulted in successes like “John,” who entered the juvenile court essentially homeless after being charged with Receiving Stolen Property and Breaking and Entering. John was assigned to work with the Detention Diversion Advocacy Program (DDAP) where he received resources, including a mentor, therapist, and support leading to summer employment. He successfully completed JAR, received no criminal record, is doing well in school and has not recidivated.

Chronically underfunded district attorney’s offices in Massachusetts do not have the financial resources, staff, or training to provide rehabilitation services. As a result, Suffolk prosecutors have built strong partnerships with community-based agencies who carry out the programing recommended through the screening process. Candid and collaborative alliances with non-profits, social service providers, and other agencies working directly with youth, families, and communities are essential in this regard. The majority of diverted juveniles complete three to nine months of individualized programming through the partner agencies, including therapy, job preparation and placement, educational support, mentorship, life skills training, substance abuse counseling, and more. To ensure honest participation at each stage, the juvenile is protected with a contract ensuring that nothing they disclose will be used to prosecute the underlying case.

Targeting the risk factors that have the greatest likelihood for recidivism advances the interests of public safety, offender accountability, rehabilitation, and satisfaction for both the victim and the community, all while reducing future barriers to success. Speed is important to the program’s success, both in the rapid assessment of the juvenile’s risk factors and needs and in following through with the recommendations as quickly as possible.

Because prosecutors direct most JAR participants into diversion prior to arraignment, the underlying charges do not appear on the juvenile’s criminal record – a decision that prosecutors made for its significant long-term implications. Having a criminal record can complicate important, stabilizing life choices such as pursuing higher education, seeking stable employment, and applying for a loan. Despite these considerations, creation of a criminal record may be necessary given the seriousness of the offense and the risk the offender poses to their community. By reducing the number of juveniles who enter adulthood with a record, prosecutors are confident that they can balance public safety with the enduring public benefit of emphasizing diversion over traditional juvenile prosecution.

In addition to the more traditional diversion programs described above, a JAR assessment may recommend the use of restorative justice circles as a key process to give victims, communities, and the juvenile a voice, while also addressing any threats to public safety. Through this process, the offender accepts responsibility for their actions and takes steps to repair the harm they have caused to a victim and the community. A highly trained volunteer facilitates the meeting process over a period of months. The process is tailored to each participant and may involve regular group meetings, known as circles. Circles may involve the victim, other community participants, law enforcement officials, and the offender. Undertaken appropriately, restorative justice leads to long-term healing for the offender and the community while lowering the likelihood of recidivism.

Communities for Restorative Justice (C4RJ) promotes and facilitates these circles to give victims of crime an opportunity, in a safe environment, to address the people who have harmed them and determine how the harm may be repaired. The offender is held meaningfully accountable, comes to understand the impact of their actions, and makes amends to those affected by the underlying offense.

C4RJ’s restorative circles already operate in numerous jurisdictions. They have a recidivism rate of just 16% and a 98% participation satisfaction rate last year as measured by offenders and victims. Restorative justice works because the offender learns empathy and gains stronger connections to the people affected by their actions, while the victim and community become more engaged in the process and outcome.

The restorative justice collaboration among stakeholders inside and outside the criminal justice system has produced an outstanding result: reliable, validated assessment data matched with specific, individualized programming to place the right juveniles in the right programs to address their unique needs and cut short the cycle of recidivism.

The spread of C4RJ’s effective programming and the proven successes of the Suffolk County District Attorney’s JAR program should encourage all justice partners to look at evidence-based alternatives to “business as usual.” Those engaging in restorative work across the Commonwealth should consider partnerships with their local criminal justice professionals, many of whom have proven themselves to be open and enthusiastic supporters of new and innovative ideas. The pieces are all on the board – together, we can keep moving them forward.

Getting Involved

The Suffolk County District Attorney’s office is eager to partner with qualified individuals and agencies to improve diversionary outcomes. By enhancing the restorative justice component in an already effective diversion model, prosecutors believe they can achieve short-term benefits for individuals and long-term benefits to the community. Interested candidates for JAR partnerships should contact Juvenile Unit Deputy Chief Michael V. Glennon at Michael.V.Glennon@MassMail.State.MA.US.

Communities for Restorative Justice needs community volunteers who are interested in doing this work in Suffolk County. If you would like to help make a difference in your community, you can learn more at http://www.C4RJ.org or fill out a volunteer application at https://bit.ly/2ya8z5K.


The 2017 Massachusetts Child Support Guidelines

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by Holly A. Hinte

Heads Up

It is the public policy of the Commonwealth that dependent children be maintained, as completely as possible, from the resources of their parents. The Court’s authority to award child support is defined by statute and applies in a variety of cases including divorce, paternity, and abuse prevention cases to name a few. Broadly speaking, child support is an amount paid from one party to another for the support of the dependent child. Unlike alimony orders, such amount is neither taxable to the payee nor deductible by the payor.

In order to receive certain federal funding, each state must establish guidelines for child support and review them once every four years to ensure that their application results in the determination of appropriate award amounts. 42 U.S. Code § 667; 45 CFR § 302.56. In Massachusetts, the Guidelines are promulgated by the Chief Justice of the Trial Court and used by the judges of the Probate and Family Court in determining the appropriate level of child support.

As required by said federal regulations, in March 2016, the Chief Justice of the Trial Court, Paula M. Carey, convened a Task Force, consisting of judges, practitioners, and economists, to review the 2013 Guidelines and the current economic climate. This review lasted over a year and included public forums, discussions, reports, and feedback from the public, the bench and the bar.

The new 2017 Guidelines were published and became effective on September 15, 2017. For the first time, the Task Force’s comments are included within the actual text of the Guidelines. There are also new forms and worksheets to be used by practitioners and the court. All of the new documents are available on the court website: www.mass.gov/courts/selfhelp/family/child-support-guidelines.html.

Compared to the 2013 Guidelines, the 2017 Guidelines contain edits made for clarification purposes, substantive changes, and in-depth instructions and commentary. Some of the notable changes are as follows:

Child Support for Children Between the Ages of 18 and 23

The 2017 Guidelines now apply in all cases in which child support is awarded, no matter the age of the child, which is a marked difference from the prior guidelines and prior federal regulations which only required application of the guidelines up to age 18.  This has always been a conflict, as under the Massachusetts statutory scheme, the Court has the discretion to award child support for a child over 18 to 21, if said child is domiciled with, and principally dependent upon, a parent, and the Court has the discretion to award child support for a child between the ages of 21 to 23 so long as the child is domiciled with, and principally dependent upon, a parent, and enrolled in an educational program (undergraduate only).

The 2017 Guidelines address this conflict by providing instructions for handling child support for children between the ages of 18 and 23, including providing factors to consider when determining whether or not to enter such an order. Additionally, in recognizing the unique factors present with children between the ages of 18 and 23, the 2017 Guidelines reduces the base amount of child support in this age-range by twenty-five percent (25%). Such presumptive order may be deviated from if appropriate.

Contribution to Post-secondary Educational Expenses

In addition to the concerns regarding child support for children between the ages of 18 and 23, there was also a lack of clarity and uniformity as it related to contributions to post-secondary educational expenses of a child. The prior guidelines did not address such contributions despite statutory authority giving the Court discretion to order a party to contribute to such expenses.

The Task Force recognized the concerns voiced by the public, the bench and the bar- namely, many parents cannot afford to pay college expenses from their income while also meeting other expense obligations, often being forced to incur substantial loan liability. As such, the 2017 Guidelines include a new section addressing such contributions.

In determining whether or not to order such contribution, the 2017 Guidelines provides a list of factors the Court must consider including cost, the child’s aptitudes, the child’s living situation, the available resources of the parent and the child, the availability of financial aid, and any other relevant factors.

If it is determined to order such contribution, the 2017 Guidelines cap such contribution at 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst (as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges). While such cap is not an absolute limitation, any order requiring a parent to contribute more than 50% requires written findings that a parent has the ability to pay the higher amount.

The Task Force makes clear that this limitation is not meant to apply in situations where: (1) children are already enrolled in college (prior to September 15, 2017) or (2) parents are financially able to pay educational expenses using assets or other resources.

If the Court exercises its discretion and orders child support for a child over the age of 18 along with contribution to post-secondary educational expenses, the Court is to consider the combined amount of both orders and the impact of such on the obligor.

Attribution and Imputed Income

The 2017 Guidelines distinguish “imputation of income” and “attribution of income” in a more coherent and refined manner. Imputed income is undocumented or unreported income. Attributed income is a theoretical amount assigned to a parent after it is found that the parent is capable of working and is unemployed or underemployed. In addition to the clarification of the types of income, the 2017 Guidelines provide new factors the Court is to consider when determining whether or not to attribute income.

Holly A. Hinte is an associate at Lee & Rivers, LLP, a boutique domestic relations law firm in Boston and a member of the Boston Bar Association & Massachusetts Bar Association.


“U Visa” Relief for Undocumented Victims of Crime

lyonsby Lisa Locher

Heads Up

U Nonimmigrant Status, commonly called the “U visa,” was created by Congress in 2000 to provide a mechanism to encourage undocumented immigrants who had been trafficked, exploited, victimized, or abused to “report these crimes to law enforcement and fully participate in the investigation of the crimes” without fear of removal or deportation.  Victims of Trafficking and Violence Prevention Act, Pub. L. 106-386, § 1513(a)(1), 114 Stat. 1464, 1533 (2000).  Specifically, if a law enforcement agency certifies that a victim has been “helpful” in the investigation or prosecution of a crime, he or she may then petition U.S. Citizenship and Immigration Services (“USCIS”) for a U visa, which, if granted, provides a legal right to live and work in the United States for up to four years.  The U visa thus encourages undocumented immigrants to cooperate and participate with law enforcement to address crimes, resulting in safer communities.

U Visa Eligibility

To be eligible for a U visa, a petitioner must satisfy the following four criteria.  See generally 8 U.S.C. § 1101(a)(15)(U)(i).

First, she must have suffered substantial mental or physical abuse as a result of being the victim of a “qualifying crime.”  “[Q]ualifying crimes” include 28 crimes specified in the Immigration and Nationality Act, such as domestic violence, rape, torture, trafficking, incest, sexual assault, abusive sexual contact, sexual exploitation, felonious assault, and blackmail.

Second, she must possess information concerning the criminal activity.

Third, she must establish that she has been helpful, is being helpful, or is likely to be helpful in the investigation and/or prosecution of the crime.  That circumstance must be certified by a law enforcement agency—that is, a federal, state, or local police agency, a prosecutor, or a judge—using USCIS Form I-918 Supplement B.  See 8 U.S.C. § 1184(p).  Without a completed Supplement B certification, the application cannot proceed.

Finally, the crime must have occurred in the United States.

U Visa Application Process

To apply for a U visa, a petitioner completes and submits a petition (USCIS Form I-918) containing biographical information, a personal statement “describing the facts of the victimization,” and the certified Supplement B.  The petitioner typically will also include supporting evidence, such as police reports, medical records, court documents, and letters from therapists or counselors.  Most petitioners also submit USCIS Form I-765, which requests authorization to be employed in the United States.  And a petitioner may also apply for “derivative” visas to cover certain family members, using USCIS Form I-918 Supplement A.  Specifically, if the petitioner is under 21 years of age, she can apply for her spouse, children, parents, and unmarried sibling(s) who are under the age of 18.  If the petitioner is over 21, she may only apply for her spouse and children.

If the petitioner believes she has inadmissibility issues—which can include illegal entry into the country, prior removal from the country, or certain health conditions—she must also submit USCIS Form I-192, which requests a waiver of any grounds of inadmissibility that might otherwise prevent her from obtaining legal immigration status.  The U visa program is not subject to certain grounds of inadmissibility that typically would apply—specifically that the petitioner is a public charge or is working without proper certification.  Moreover, the U visa program allows USCIS to waive many of the remaining grounds of inadmissibility if it is in the “public or national interest to do so.”  8 U.S.C. § 1182(d)(14).  Although the I-192 requires a petitioner to disclose damaging information to USCIS, in the past a petitioner was unlikely to face immigration consequences based on that disclosure alone.  Pursuant to a 2011 internal agency memorandum, it was the policy of Immigration and Customs Enforcement (“ICE”) to not “initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”  The continuing viability of this policy is now in question due to the current administration’s recent executive orders.

While filing Form I-918 requires no fee, Forms I-192 and I-765 carry non-refundable filing fees totaling approximately $1,300.  A petitioner may request a fee waiver using USCIS Form I-912.

Once the petitioner’s application packet containing all of these forms is submitted to USCIS’s Vermont Service Center in St. Albans, Vermont, USCIS will adjudicate the application.  Adjudication can be time-consuming:  The backlog is approximately three years, meaning that USCIS is currently adjudicating U visa applications filed during the summer of 2014.

If USCIS approves the application, USCIS will grant the petitioner employment authorization in the United States and legal status in the form of a U visa for up to four years.  USCIS, however, is authorized to grant only 10,000 U visas annually.  If an application is approved, but there are no U visas remaining available for quota reasons, USCIS will place the petitioner on a “deferred action” waitlist and typically will grant work authorization during that waiting period.

At the end of the petitioner’s four years of U visa status, she can apply to adjust her status to lawful permanent resident, i.e., become a “green card” holder.

The U Visa Experience for Petitioners

Despite the U visa program’s many positive aspects for undocumented immigrant victims of crime, the process to seek and obtain one can be frustrating, even harrowing.

Law enforcement agency practices vary widely as to when they will certify a petitioner’s helpfulness.  Many agencies will certify the petitioner’s helpfulness during any stage of an investigation or prosecution, which accords with the fact that the U visa program does not require an actual prosecution or conviction to occur.  Other agencies, however, will not certify helpfulness until the criminal prosecution is concluded or the defendant defaults, meaning that the time merely to confirm the petitioner’s eligibility for a U visa can drag out for years—to say nothing of the time for USCIS to adjudicate the application and for the victim to await an available U visa.

Additionally, even under the best of circumstances, undocumented immigrants will rarely come forward to report abuse or victimization.  Undocumented immigrants often believe abusers’ routine threats to call the police or ICE.  Many undocumented immigrants yield to this basic fear and will not disclose crimes to, or cooperate with, the police.  The current administration’s actions threaten to chill undocumented immigrants from reporting crimes against them.  President Trump’s January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States,” which sets enforcement priorities for removing undocumented immigrants, gives no deference to victims of crimes, unlike the 2011 ICE policy memorandum noted above.  DHS Secretary John Kelly’s February 20, 2017 memorandum “Enforcement of the Immigration Laws to Serve the National Interest,” which implements the Executive Order, specifically states that “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby rescinded to the extent of the conflict.”  It is unclear exactly how this affects the 2011 memorandum that forswears removal proceedings against victims or witnesses of crimes.  Lastly, the Administration has called for empowering state and local agencies to perform immigration enforcement functions, which threatens to further discourage undocumented immigrants from reporting crimes, despite the availability of U visa relief.

The uncertainty surrounding once-established policies is in such flux that immigration practitioners can no longer rely on previously established customary practices.  Immigration practitioners are now more likely to warn undocumented clients who are prepared to come forward about the potential risks of seeking a U visa and thus drawing the attention of USCIS and ICE.

Lisa Locher currently works in the immigration unit at Greater Boston Legal Services (GBLS) and is a Guberman Fellow in the Legal Studies Department of Brandeis University.  Her prior experience includes over 15 years of practicing family law at GBLS.  Attorney Locher worked for the Department of Children and Families.  Attorney Locher is a graduate of Northeastern University School of Law


The New Transgender Anti-Discrimination Law and Guidance Issued by the Attorney General’s Office and the MCAD

peranersweet_andreaby Andrea Peraner-Sweet

Heads Up

On July 8, 2016, Governor Baker signed into law An Act Relative to Transgender Anti-Discrimination, St. 2016, c. 134 (the “Act”), expanding Massachusetts’ protection against gender identity discrimination. Before the Act, the Transgender Equal Rights Act (“TERA”), St. 2011, c. 199, had prohibited gender identity discrimination in employment, housing, education, credit and lending. The Act now prohibits gender identity discrimination in places of public accommodation. G.L. c. 272, § 98, as amended by St. 2016, c. 134, § 3. It also requires places of public accommodation that lawfully segregate or separate access based on a person’s sex to “grant all persons admission to, and the full enjoyment of, such places of public accommodation, consistent with the person’s gender identity.” G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2 (emphasis added).

Guidance on the new law was issued on September 1, 2016, by the Attorney General’s Office (“AGO”) and the Massachusetts Commission Against Discrimination (“MCAD”). The MCAD issued clarified guidance on December 5, 2016, as discussed in more detail below. This article provides an overview of the AGO and MCAD guidance and recommended best practices.

Overview

 Effective October 1, 2016, the Act amended G.L. c. 272, §§ 92A and 98 to include gender identity as an unlawful basis for discrimination in places of public accommodation. St. 2016, c. 134, § 5. A place of public accommodation is “any place whether licensed or unlicensed which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, § 92A. The definition is broad: a place of public accommodation can be either public or private, can provide products or services (regardless of whether it charges for products, services, or admission), and can include retail stores, restaurants, hotels, theaters, museums, libraries, public facilities, and sports and health clubs. AGO Guidance, p. 2. After a lawsuit filed by four religious organizations (which has been voluntarily dismissed), the AGO removed an unqualified reference to “houses of worship” from its list of examples of places of public accommodation. The MCAD similarly clarified that although the Act would not apply to religious organizations if such application “would violate the organization’s First Amendment rights,” places of public worship may be subject to the public accommodations law if they engage in, or their facilities are used for, a “public, secular function.” MCAD Guidance, p. 4.

Gender identity is defined as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” G.L. c. 4, § 7, Fifty-ninth.  A person’s gender identity must be “sincerely held as part of the person’s core identity.” Id. It includes transgender, that is, “a person whose gender identity is different from that person’s assigned birth sex.”  AGO Guidance, p. 1; MCAD Guidance, p. 6.

Examples of unlawful gender identity discrimination by places of public accommodation include: refusing or denying services; offering different or inferior services; advertising the refusal to accept business from or patronage of transgender or gender non-conforming individuals; providing false information about the availability of products, goods or services, facilities or admission; and harassment or intimidation. AGO Guidance, p. 2; MCAD Guidance, pp. 4-5. Moreover, it is now a crime, punishable by fine and/or imprisonment, and subject to a private right of action, for any individual to “aid or incite another in making a distinction, discriminating against or restricting an individual from a place of public accommodation” based on gender identity. MCAD Guidance, p. 4.    

Use of Sex-Segregated Facilities

By far, the law’s most controversial provision concerns the use of sex-segregated facilities (e.g., bathrooms). Although places of public accommodation need not eliminate sex-segregated facilities, they must now allow patrons to use the facility most consistent with their gender identity. G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2. A person should be presumed to be using the facility most consistent with their gender identity if the person is not engaged in any improper or unlawful conduct. AGO Guidance, pp. 2-3. A person should not be presumed to be using the wrong facility based solely upon the person’s appearance. Id., p. 3.

If a place of public accommodation has a legitimate concern (i.e., about potentially improper or unlawful conduct) as to whether a person is using the appropriate facility, a limited inquiry of the person is recommended through a “private and discrete conversation.” Id., pp. 3-4. After confirming that the person is using the appropriate facility, the inquiry should end. Id., p. 4.

Improper or Unlawful Purpose

Gender identity cannot be asserted for an “improper or unlawful purpose.” G.L. c. 4, § 7, Fifty-ninth. Examples of such conduct include:

  • loitering in a facility for the purpose of observing other patrons;
  • harassment of employees or patrons;
  • threats or violence;
  • photographing or videotaping others without their permission; and
  • violation of the law.

AGO Guidance, p. 5.

If a place of public accommodation has reasonable grounds to believe that a person is using the facility for an improper or unlawful purpose, it may take action consistent with its usual policies regarding removing persons who engage in improper conduct, including contacting law enforcement if warranted. Id. 

Request for Proof of Gender Identity

Only in very limited circumstances is it permissible to request proof of gender identity. AGO Guidance, p. 4; MCAD Guidance, pp. 6-7. If a place of public accommodation, such as a health or sports club, regularly requires documentation of gender for all members, an individual’s gender identity may be documented by presenting “any one of the following:

  • (1) a driver’s license or any other government-issued identification;
  • (2) a letter from a doctor, therapist or other healthcare provider;
  • (3) a letter from a friend, clergy or family member regarding the individual’s routine conduct such as dress, grooming and the use of corresponding pronouns; or;
  • (4) any other evidence that the gender identity is sincerely held as a part of the person’s core identity.”

AGO Guidance, p. 4 (emphasis in original); MCAD Guidance, pp. 6-7 (providing additional examples). A place of public accommodation cannot use a request for documentation to harass, intimidate, embarrass or otherwise discriminate. AGO Guidance, p. 4; MCAD Guidance, p. 6. 

Best Practices

The Act’s major change is to ensure that places of public accommodations are accessible to all persons, consistent with their gender identity, and that employees of public facilities are properly trained in the Act’s provisions. Most businesses updated their anti-discrimination policies following enactment of the TERA; similar updates are warranted in light of the Act. The following adapts the best practice recommendations in the updated MCAD guidance for places of public accommodation:

  • Update employment policies and training materials to include a statement that discrimination and harassment based on gender identity is prohibited;
  • Prohibit derogatory comments or jokes about transgender people and promptly investigate and discipline persons who engage in prohibited conduct;
  • Update business and personnel records, payroll records, email systems and all other administrative records to reflect the stated name and gender identity of employees, clients and vendors;
  • Use appropriate names and pronouns corresponding to each person’s stated gender identification in communications;
  • Avoid gender-specific dress codes and permit attire that is consistent with each person’s stated gender identity;
  • Develop a written policy concerning procedures for when a person undergoes gender transition and which promotes the confidentiality of the person’s transition; and
  • Develop a policy that provides access to any sex-segregated facility consistent with a person’s gender identity and train all staff on the policy.

The Act is not expected to usher in a new round of litigation, in light of the TERA’s prior enactment and the public accommodation law’s liberal construction  by courts and the MCAD.  See e.g., Joyce v. Town of Dennis, 705 F. Supp. 2d 74, 83 (D. Mass. 2010).  But, all places of public accommodation should review their policies and procedures to ensure that they are in compliance with the new law.

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.


Department of Labor Rule Shakes Up Retirement Advice Industry

derbyshire_ralphhaines_jayby Ralph Derbyshire & Jay Haines

Heads Up

The Department of Labor is amending a longstanding Employee Retirement Income Security Act (ERISA) regulation that defines fiduciary “investment advice.”  Barring postponement by the new administration, the new rule will generally become effective on April 10, 2017, and will dramatically affect financial advisors and other service providers who provide assistance to ERISA plan sponsors, plan participants, and IRA customers with their investment decisions.

Expanding the Definition of “Investment Advice”

The rule, 29 C.F.R. § 2510.3-21, greatly expands the range of activities that constitute fiduciary investment advice under ERISA.  Today, fiduciary duties attach to investment advice if the advice provider and the advice recipient have a mutual understanding that the advice “will serve as a primary basis for investment decisions.”  The new rule eliminates this concept of “reliance” and instead treats as fiduciary investment advice any “communication that, based on its content, context, and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.”  In addition, the new rule covers not only recommendations to buy and sell, but also recommendations about whether to hold a security or other property, take a distribution or rollover, manage assets or select an investment manager, and use a brokerage or fee-based advisory account.

These changes are important for two reasons.  First, fiduciaries are subject to a “best interest of the investor” standard of care.  A fiduciary must therefore make recommendations with the care, skill, diligence and prudence that a person experienced in such matters would use taking into account the investment objectives, risk tolerance, financial circumstances and needs of the investor.  A fiduciary must also make recommendations without regard to the financial interests of the advice provider.  Because the new rule’s broad definition of a “recommendation” potentially encompasses routine sales activity, it creates a major disruption for traditional commission-based advisors such as broker-dealers and insurance agents.

Second, fiduciaries are subject to ERISA’s prohibited-transaction rules, which apply to both employee benefit plans and IRAs.  This means that a fiduciary may not provide investment advice if it would cause the fiduciary’s compensation to vary, unless a prohibited transaction exemption applies.  In other words, an advisor who receives commissions—as well as any other provider compensated through a plan’s investments who might provide advice under the new definition, such as plan recordkeepers or third-party administrators—must either comply with an exemption or avoid providing fiduciary advice in the first place.  Even an advisor who charges a flat fee must be careful when marketing its own advice services to a prospective customer, because its compensation will vary based on whether or not the customer hires it.

Dealing with the New Definition

The rule provides a few tools to navigate these new waters.  The most prominent of these is a new, broad-based prohibited transaction exemption called the “Best Interest Contract,” or “BIC,” exemption.  The BIC exemption is available for fiduciary advice to IRA customers, plan participants, and plan fiduciaries who hold, manage or control less than $50 million in plan and non-plan assets.  The BIC exemption’s conditions are extensive, but it principally requires that the advice be provided pursuant to an enforceable obligation to act in the retirement investor’s best interest, either under ERISA or under a private contract with an IRA owner.  Streamlined requirements apply where the advisor’s and its affiliates’ compensation is a fixed percentage of the advised assets or a set fee that does not vary with the investments recommended.

The rule also identifies a number of circumstances that, despite the rule’s otherwise broad scope, will not be considered fiduciary advice.  For example, the rule outlines specific types of investment education that are not considered advice.  Other carve-outs exist for marketing investment platforms, making general communications to the public, certain communications among employees of an employer sponsoring a plan, and recommendations to plan fiduciaries who hold, manage or control at least $50 million in plan and non-plan assets and who are capable of independently evaluating investment risks and recommendations.  All of these carve-outs are subject to certain conditions and, in many cases, subject to certain disclosures to the recipient.

Consequences to Investors, Plan Sponsors and the Industry

Although the rule is intended to benefit retirement investors, it is likely to prove disruptive to the retirement industry.  For example, the rule will now subject account rollover recommendations to a fiduciary standard, so many expect rollovers to IRAs to decline and the proportion of assets remaining in 401(k) and other employer plans to increase.

The rule will also likely increase the use of low-cost investments that have minimal or no 12b-1 fees or revenue-sharing associated with them.  Thus, an increasing proportion of retirement assets will likely be invested in collective investment trusts, index funds, and low- or no-revenue-sharing share classes of mutual funds.  By the same token, high-cost and high-revenue-sharing investments, as well as proprietary investments of an advice provider, will likely receive a smaller share of retirement assets.  Other products such as variable annuities may also diminish in popularity as the rule subjects them to increased requirements under the BIC exemption.

Pricing for advice services to retirement customers will also likely shift from variable or commission-based arrangements to fixed-fee-based arrangements.  This is because variable compensation would trigger the need to comply with the BIC or another prohibited-transaction exemption, or will limit the advice provider to communications that fit within a carve-out under the rule.  Registered investment advisors, who generally employ fixed-fee arrangements today, will likely be less affected than broker-dealers and other commission-based service providers.  Similarly, fee-based managed account products, including so-called “robo-advisors,” should see a boost in sales.

Plan sponsors will also need to consider how the new advice landscape may affect them.  Many plan sponsors will need to determine whether and how to prudently select and monitor an advice provider both for recommendations on the plan lineup and for recommendations to plan participants.  Sponsors may also need to evaluate the current plan lineups in light of the new rule and potentially change compensation arrangements with service providers.  IRA owners may be faced with similar issues.

Ralph C. Derbyshire is Senior Vice President and Deputy General Counsel for FMR LLC, the parent company of Fidelity Investments. Fidelity Investments is a leading provider of investment management, retirement planning, portfolio guidance, brokerage, benefits outsourcing, and other financial products and services to more than 20 million individuals, institutions, and financial intermediaries. From 2012 – 2014, he served as the investment management industry representative to the Department of Labor’s ERISA Advisory Council.

James Barr Haines is a Vice President and Associate General Counsel at Fidelity Investments, supporting Fidelity’s workplace plan administration business.  Jay is also co-chair of the Boston Bar Association’s ERISA Sub-Committee.