by Christine M. Netski
As new and unprecedented personal and professional challenges continue to unfold amid the COVID-19 pandemic, I continue to be inspired by the way our legal community has come together to respond quickly, effectively and compassionately to so many impacts the crisis is having on access to justice and our profession. I have also been humbled by our members’ unwavering support and deep engagement during such difficult and uncertain times. Your dedication has allowed the BBA to continue to fulfill its mission to advance the highest standards of excellence for the legal profession, facilitate access to justice, foster a diverse and inclusive professional community, and serve the community at large in a virtual environment.
As we look ahead, although we don’t know when we’ll be able to gather again at 16 Beacon Street, we do know that we’ll continue to serve our members’ needs and support our profession as we move through new phases of this crisis. I want to share some of our efforts that are currently underway.
Expansion of Virtual Education Resources
Educational programs are our most significant member benefit. Our members rely on our programs to help them adjust to changes in our profession, learn new skills, and enhance their practices.
We launched our first webinar on March 25 and, since then, we have hosted 50 webinars viewed live by over 2,000 attendees.
Soon after the crisis began to escalate in the Commonwealth and rapid changes in the law began to accumulate, a number of Sections, including Labor and Employment, Criminal Law, and Trust and Estates, sprang into action to host programs addressing the latest legal developments in their practice areas. Others, including the Life Sciences Industry Group and the Privacy, Cybersecurity, and Digital Law Section, convened roundtable discussions where experts shared insights into the current and anticipated impacts of the crisis.
In addition to covering the rapidly-developing changes in the law, our webinars have also provided members with critical information and advice about how best to practice remotely. These programs have offered guidance on topics like handling remote proceedings, conducting virtual depositions, and practicing ethically under these unusual circumstances. Some have offered our members the chance to hear directly from our courts, including through a virtual version of the annual Bankruptcy Bench Meets Bar program and a webinar on the current state of civil litigation in Superior Court during the pandemic.
This summer we will continue to build on the foundation of our successful virtual programming. We plan to take steps to improve the virtual member experience by refining and expanding our educational offerings to include CLE-accredited programs and virtual conferences. Looking ahead to the fall, we are asking our Sections, Forums, and Industry Groups to keep up their excellent work and plan for a robust slate of educational programs, with the hope that we can again convene in-person, but with the agility to proceed virtually if necessary.
Supporting the Profession
In addition to supporting continuing legal education for our members, we’re proud to be able to offer opportunities to help attorneys stay connected and well. Earlier this month, we participated in Lawyer Well-Being Week, which included a program on practical mindfulness for attorneys and a series of round tables – one targeted to legal aid attorneys and another to solo and small firm practitioners – where attendees could share their current challenges and learn about effective self-care strategies.
We’ve also been pleased to be able to assist our affinity bar partners in staying connected and reaching their membership by hosting a series of virtual roundtables and happy hours over the last few months. We look forward to continuing to offer these types of opportunities and to continuing to explore new ways of supporting wellness in the months ahead.
Graduating law students and new lawyers are entering the profession at an especially challenging time, and we are and will continue to take steps to bolster their professional growth. Our popular Friday Fundamentals series has moved on-line, and our members are continually adding more offerings to help law students and new lawyers gain the basic legal skills necessary to succeed in their practice areas.
We are also looking to meet the unique needs of graduating law students, as well as those new to practice, by expanding our Bar Coaching Program. The expanded program will offer mentorship and study support for both first time and repeat test takers as they prepare to sit for the bar exam during this time of heightened stress. The program will also now offer mentorship and guidance for new attorneys who are adjusting to the intricacies of practice from home, in an uncertain economy and without the typical in-person mentorship they would receive in their workplaces.
Finally, we know the profession will evolve and our members’ needs will change over the coming weeks and months. We remain committed to responding to those needs and helping our members adapt their practices to continue to best serve the evolving needs of their clients.
Thank you for your commitment to our mission and we look forward to continuing to serve you and all our members as we work together to meet the challenges that lie ahead.
Christine M. Netski is the President of the Boston Bar Association. She is also a managing partner and a member of the executive committee at Sugarman, Rogers, Barshak & Cohen, P.C.
by Laticia Walker-Simpson
Homelessness in Greater Boston was rising even before the economic fallout from the COVID-19 pandemic. From 2008 to 2018, the region experienced a 26.7% increase in homeless families and a 42.5% increase in homeless individuals. As rents skyrocketed and the shortage of affordable housing worsened, the state’s Emergency Assistance (“EA”) shelter program has strained to meet the need of the growing number of eligible households. The public health emergency has laid bare the structural problems with the state’s housing safety net program all too familiar to those working directly with the vulnerable population.
To meet the statutory mandate to provide Shelter to impoverished households, the Commonwealth must substantially increase funding for the EA program, implement measures to create more housing affordable for extremely low income residents, and adopt initiatives to address the displacement crisis, such as right to counsel in eviction cases and rent control.
“Right to Shelter”
In 1983, Massachusetts enacted a “Right to Shelter” law, Chapter 450 of the Acts of 1983, and established the state’s first publicly-funded homeless Shelter for families while they search for more stable housing. Although referred to as a “right to Shelter” jurisdiction, the Commonwealth imposes strict threshold eligibility requirements for applicants to be eligible for EA Shelter: families must be Massachusetts residents; at least one person must have qualifying immigration status; the family must have a qualifying child under age 21, and the overall household income must be at or below 115% of the federal poverty level.
Additionally, the family’s homelessness must have been caused by one of four qualifying reasons: (1) domestic violence; (2) fire, flood, or natural disaster not caused by a household member; (3) a health and safety risk that is likely to result in harm; or, (4) eviction due to certain circumstances that are generally beyond the control of the tenant household, such as medical situations.
A household will be barred from EA Shelter for a variety of reasons, including “intentionally reducing” income to become eligible for benefits (i.e., EA shelter or a housing subsidy); receiving EA Shelter benefits in the last year; abandoning public or subsidized housing without good cause; or being evicted due to criminal activity, destruction of property, or non-payment of rent for public/subsidized housing.
Once admitted to an EA Shelter, the household must meet certain mandatory participation requirements, such as saving 30% of their income, spending 20 hours per week in housing search, job search, or in education or training programs like financial literacy classes. Participants are also required to complete chores in the Shelter, including cleaning the facilities’ kitchens and bathrooms.
A Perverse Cycle
The Commonwealth’s shortage of affordable housing for low and extremely low income families is driving the need for EA Shelter. At least three in ten low-income people in Massachusetts are either homeless or must pay over half of their income in rent.
Since 2013, the average length of stay in EA Shelters across the state is 267 days. Only 12% of families exit the EA program within one month, 28% exit within three months, and 27% stay for more than a year and up to 5.6 years. Compared to an average of 247 days in 2008, in 2013 homeless families spent an average of 300 days in EA Shelters. The duration has been about 150 days longer in the Boston and Central regions than in the Southern and Western regions. This disparity is not surprising given the higher cost of housing in Boston where, for example, the rent for a two-bedroom leapt from $1,237 in 2010 to $1,758 in 2019.
With the lengthening duration of stay in EA Shelters due to lack of permanent affordable alternatives, more families are placed farther away from their home communities and face limited transportation options to their original places of employment, child care, medical care, education, and important networks of support. And case workers assigned to each EA family face increased caseloads, reducing the time they can spend assisting each family with housing search and accessing other resources necessary to transition out of homelessness.
The budget for the EA program has not kept pace with the expanded need for EA Shelter and increased cost of temporary EA housing. In fiscal year 2013, 39,436 homeless families were served by the EA budget of roughly $156.5M (adjusted for inflation). In fiscal year 2019, 43,392 families were served by the allocated EA budget of roughly $179.8M (exclusive of any supplemental budget).
To meet the increased demand, the EA program has placed many families in inexpensive private apartments. These private market EA placements have resulted in the unintended, albeit foreseeable, consequence of further shrinking the supply of “naturally occurring affordable housing” (“NOAH”) available as permanent housing options, including for EA participants. That is, by competing in the private rental market for EA temporary placements, the state’s efforts have had the perverse effect of further decreasing the supply of NOAHs available to low-income families, thereby pushing more vulnerable households into homelessness, and exacerbating the supply barriers to permanent housing for EA participants, thereby extending their time until exit from the EA program. It is a pernicious and inefficient cycle.
The related trends of longer EA stays and shrinking permanent affordable options has transformed the EA program from its original purpose as a short-term measure to help families get on their feet into a long-term housing placement system for those with limited prospects for transitioning to stable, affordable housing. This dynamic is unsustainable at current levels of EA appropriations.
The COVID-19 pandemic has also underscored the public health costs of a system operating beyond capacity. EA Shelters are primarily comprised of congregate housing, where each family has a private room but shares a kitchen, bathroom, and living space with other families. Congregate physical facilities make social distancing impossible and contributes to the spread of the virus. The reduction in on-site staffing due to the public health emergency also means cleaning and maintenance also has come under increased strain.
Creativity and determination are necessary, but not sufficient, to disrupt the current inefficient patterns and cycles in the operation of the EA Shelter system. A substantial increase in EA Shelter appropriations will also be necessary, along with expansion of staff trained to develop resources, capacity, and resilience within homeless families, and more systemic efforts to preserve NOAHs as permanent affordable housing options.
The most effective, preventative response to the homelessness crisis would be a form of rent control. A more immediately needed response in the face of the tsunami of evictions expected at the end of the temporary eviction and foreclosure moratorium, Chapter 65 of the Acts of 2020, is a Right to Counsel legislation that would reduce the number of low-income residents who are evicted and need EA shelter by providing attorneys to low-income tenants, the majority of whom presently go unrepresented.
The pandemic has exposed the need for systemic reform for the EA program to operate effectively to mitigate the traumatic human, medical, and social costs associated with homelessness and to transform the “Right to Shelter” from a paper promise into a sustainable reality for our Commonwealth’s neediest families.
Laticia Walker-Simpson is a Staff Attorney focusing on EA Family Shelter in the Housing Unit at Greater Boston Legal Services. She co-chairs the Mentor project at GBLS and is part of the Massachusetts Right to Counsel Coalition. She is an avid baker.
by Rebecca Tunney, Kerry E. Spindler, and Sara Goldman Curley
On April 27, 2020, Massachusetts became the latest state to enact remote notarization and witnessing through “an Act providing for virtual notarization to address the circumstances related to COVID-19” (the “Act”). The Act temporarily authorizes the affirmation, acknowledgment or other notarial acts of documents utilizing electronic video conferencing in real time. The Act will be in effect until 3 business days after the termination of Governor Baker’s declared state of emergency. See Executive Order 591.
Under M.G.L. c 222 §16, “a notary public shall not perform a notarial act if… the principal is not in the notary public’s presence at the time of notarization.” The outbreak of the novel coronavirus (also known as COVID-19), and Governor Baker’s resulting declaration of a state of emergency in Massachusetts on March 10, 2020, have made it difficult to execute documents “in the presence of” a notary public (“notary”). This has caused problems for those who need to sign documents that require notarization, either by statute or pursuant to best practice, including many estate planning and real estate documents.
Requirements for Remote Notarizations
The Act provides a critical alternative to in-person notarizations during this period of required physical distancing. The Act also permits remote witnessing if the witness’s signature is notarized, noting that the signature of any witness who participates in the remote notarization will be valid as if the witness had been present to sign in person (i.e., witnesses under a will must still qualify under M.G.L. c 190B § 2-505). The Act still requires “wet” signatures and does not authorize electronic signatures.
Under Section 3(a) of the Act, any notarial act performed by a notary appointed pursuant to M.G.L. c 222 § 1A utilizing electronic video conferencing (“remote notarization”) will be valid and effective if:
(i) The notary and each principal are physically located within Massachusetts. “Principal” is defined as any person whose signature is being notarized, including witnesses;
(ii) The notary creates an audio and video recording of the notarial act and obtains the verbal assent of each principal to do so;
(iii) The notary observes each principal’s execution of a document;
(iv) Each principal who is not personally known to the notary visually displays federal or state issued identification bearing a photograph and signature of the principal (or a passport or other government-issued identification that evidences the principal’s nationality or residence if the principal is not a US citizen) during the electronic videoconference, and transmits a copy of the identification to the notary. With respect to any document requiring notarization and executed in the course of closing a transaction involving a mortgage or other conveyance of title to real estate (hereinafter, “Closing Documents”), Section 6(b) provides that any principal who is not personally known to the notary must also display a second form of identification containing the principal’s name (specific examples of forms of identification are set forth in Section 6(b));
(v) Each principal makes the necessary acknowledgment, affirmation or other act to the notary. In addition, each principal (a) swears or affirms under the penalties of perjury that the principal is physically located in Massachusetts, (b) discloses any other person present in the room, and (c) makes such person viewable to the notary; and
(vi) Each principal causes the original executed document to be physically delivered to the notary in accordance with the notary’s instructions.
Except for Closing Documents, the notary may sign and stamp the document upon satisfaction of the preceding (i) through (vi), at which point Section 3(b) of the Act provides that the notarial act shall be complete. Since one of the requirements for completion is the delivery of the executed document to the notary, some practitioners recommend that the notary sign the document twice: first during the videoconference after the principal signs, and again when the notary receives and collates the original documents. The notary should affix his or her seal only once, on receipt of the original documents.
Upon receipt of executed Closing Documents, the notary and each principal must engage in a second recorded video conference during which each principal verifies that the document received by the notary is the same document executed during the first video conference. See Section 3(a)(vi). The principal must again affirm to being physically located in Massachusetts, disclose any person also present in the room, and make such persons viewable to the notary. Id. Having all the originals in hand, the notary signs and stamps the Closing Document during this second video conference. Id.
In each case, the notary block must recite (i) that the document was notarized remotely pursuant to the Act, (ii) the county in which the notary was located when the notarial act was completed, and (iii) the date the notarial act was completed. See Section 3(c). To avoid confusion, the notary block may include both the date and county in which the notary was located when the principal was remotely before the notary, and the date and county in which the notary was located when the notary signed and stamped the executed originals. Id.
The notary must also execute an affidavit confirming that the notary (i) visually inspected each principal’s identification during the video conference and received a copy thereof (if a principal is not personally known to the notary), (ii) obtained consent from each principal to record the proceeding, (iii) received affirmation that each principal is physically in Massachusetts; and (iv) was informed of any person present in the room, and such person’s relationship to each principal is listed on the affidavit. See Section 3(d). With respect to Closing Documents, the affidavit must address both video conferences.
Any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or other authorization under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (hereinafter, collectively “Estate Planning Documents”) is considered complete when all original counterparts and the notary’s affidavit are compiled. See Section 3(e).
The notary must retain for 10 years a copy of (i) each principal’s evidence of identity (although there is no requirement to retain a copy of a second form of identification with respect to Closing Documents), (ii) the affidavit executed by the notary, and (iii) the audio and video recording of the remote notarization. See Sections 3(a)(iii), 3(d), 3(f).
Restrictions on Who Can Notarize
Only notaries who are licensed to practice law in Massachusetts or a paralegal under the direct supervision of such an attorney may use remote notarization for Estate Planning Documents and Closing Documents. If the notary is a paralegal (which is not a defined term in the Act), the supervising attorney must retain the required documents and recordings for 10 years. Other documents may be notarized by any Massachusetts notary. See Section 6(a).
The Act is the product of several weeks of analysis and negotiation, beginning almost immediately after the state of emergency was declared, among representatives from a number of bar organizations, attorneys from multiple practice areas, private industry, government agencies and Massachusetts legislators. While there was ultimately broad support for the Act in the face of the current public health crisis, many practitioners remain wary of making such a procedure permanent given the potential for abuse.
Rebecca Tunney is an associate at Goulston & Storrs, P.C. She assists individuals and families with complex estate plans involving estate, gift and generation-skipping transfer tax planning, estate and trust administration, international tax planning, charitable giving and business succession planning.
Kerry L. Spindler is a Director in the Private Client & Trust practice group at Goulston & Storrs PC, where she focuses on estate, tax, wealth transfer and charitable planning, as well as estate and trust administration. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.
Sara Goldman Curley is a partner and deputy chair of the Private Client Department at Nutter McClennen & Fish, LLP, where she assists clients on a broad range of estate planning, estate administration and trust administration matters. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.