WOMEN’S BAR REVIEW

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Women’s Bar Associat ion

27 School Street, Suite 500 • Boston MA 02108 • (617)973 -6666

www.womensbar.org • wba@womensbar.org

Welcome to the Women’s Bar Association’s 40th anniversary Women’s Bar Review In this special year, we have much to celebrate. At present, we have close to 1600 members of our organization in a wide variety of practice areas and at all stages of their careers. Our legislative efforts have yielded laws that will continue to improve working conditions for individuals across the Commonwealth. Likewise, we

have worked to ensure access to contraceptives under state law and we continue to advocate for safeguards for reproductive rights. Our committees are holding innovative programs and we are helping women apply for judicial vacancies. We recently issued a report on workplace conduct at Massachusetts law firms with the Rikleen Institute for Strategic Leadership, which to date, has been covered by the Boston Globe, Massachusetts Lawyers Weekly, Law 360, Bloomberg, and other news outlets. In 2018, the WBA is doing everything but resting on its laurels. On a personal note, after being involved in this organization for more than a dec-ade, I could not be prouder to serve as President. I am amazed at the breadth of our reach and the support we get from public officials. Our mentors and role mod-els don’t hesitate to help us. They show up and they do it graciously. In turn, those of us in leadership now also hope to set the tone for member engagement. Whether we meet you at an event or visit your place of employment to discuss the organization, it is our goal to inspire you to be involved in the WBA in a meaningful way. This organization makes good on its claims to give women a boost in networking and career development, through both formal and informal mechanisms. I can also say firsthand that the lasting friendships that arise out of WBA involvement are second to none. Yet just as we celebrate our growth and the accomplishments of four decades of advocacy and leadership in the community, we take to heart the unpleasant real-ities of the world around us. In the past two years in particular, we’ve seen una-bashed, angry attacks on women’s rights and other civil liberties. On the one hand, we have great confidence in many of our outstanding elected officials and in the judicial system. On the other, however, we fear that the U.S. Supreme Court will fail to uphold precedent that protects women’s autonomy and marriage equality, and that new cases may be brought that will erode our society in ways we haven’t yet considered. While we are grateful for the bravery of the many women speak-ing out and jumpstarting movements such as #MeToo, we are frustrated that sexu-al assault and harassment are still facts of life.

President’s Message

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Women ’s Bar Association 105 Chauncy Street, 8th Floor • Boston MA 02111• (617)973 -6666

www.womensbar.org • wba@womensbar.org

2 President’s Message

F E A T U R E D

C O N T E N T

4

8

13

Reflections on the Past

Interviews with

Elaine Epstein

Jamie Sabino

Elisabeth Medvedow

A R T I C L E S

15 Women on the Bench

23 Survey on Workplace Conduct

W B A T I M E L I N E S

20

22

40 Years of WBA

Amicus Briefing

25 Legislative Issues

W B A E V E N T S

27 Appellate Advocacy

28 Signs of Change

30 Summer Associate Event

31 Thank you to

Pattye Comfort

32 Gala 2018

I N T H I S I S S U E

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In our profession, we also see that bullying, retaliation, and insidious discrimination impede our progress. Indeed, close to a third of respondents to Lauren Stiller Rikleen’s survey said that they had “felt threatened, em-barrassed or humiliated, or witnessed someone being threatened, embarrassed or humiliated, by someone in the workplace” and of those, 60% did not report it. Perhaps then, it shouldn’t be surprising that nearly 40% of survey respondents working in law firms now don’t even know if their firms have an internal process for re-porting behaviors of concern. We know well that there is a backlash against those who report misconduct. Where does this leave us? I think of the Miranda Warning, “you have the right to remain silent.” In 2018, as women lawyers, it’s quite the opposite. We have no business being silent. We should take every opportunity to counter harmful stereotypes of women in the workplace and in society. We should insist on systems and pro-cesses that hold people accountable for their behavior. Now more than ever, we need an organization to sup-port us in challenging the structures that determine the professional fate of those of us in practice and the many women graduating from law school. By continuing to support the WBA and making it the voice of women law-yers, we give ourselves strong networks, resources, career options, and power in the community. This year, we have ample opportunities for women to get involved. We will continue to talk about workplace conduct at events and in collaboration with community partners. Our other priorities also remain in full force. A few examples: • If you think that now or in the future, you’d like to be the person on the bench interpreting the law, contact

our Judicial Pipeline Committee. • If you are concerned about the lack of women in leadership positions in law firms, contact the Law Firm Ad-

vancement Committee. • If you are wondering how other women of color are coalescing around networking and community in the

profession, be a part of the Women of Color Committee. • If you want to have even the smallest role in promoting legislation that helps women and families in the

Commonwealth, join the Legislative Policy Committee.

Above: WBA Gala 2018

Upper Right: Supreme Mistrust? Looking at

the Judiciary Post-Kavanaugh Confirmation

Lower Right: Walking the Walk: A Candid

Discussionof the WBA’s Report on Work-

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particularly for a homemaker—were strengthened in the 70's and buttressed by some great case law in the follow-ing decades. The security of alimony took a hit with the impetus that led to the reform act in 2012, particularly for women in long-term marriages who had not worked. Cus-tody has certainly shifted to more gender neutral consid-erations, which cuts in many directions for women, but was certainly needed. Domestic violence protections waxed and then somewhat waned over the decades: judges (and attorneys) too often become jaded by couples jockeying for use of these allegations. The result is that sometimes serious cases can get lost in the process and the protective statutes have lost their sway—particularly in the presumption that domestic violence creates in the best interests of the children and the need for findings. Domestic violence is perhaps due for a #MeToo moment. Obviously things have changed quite a bit for women in all spheres over the past forty years. Within the legal profession, what are some of the more subtle changes that you’ve noticed? The most dramatic changes came in the atmosphere in courtrooms as more women attorneys began to appear, women judges were appointed and there were even wom-en court officers. I remember the first time I was defend-ing a woman, the prosecutor was a woman, so was the judge, and that was rounded out by a woman clerk and woman court officer. We all commented on it! The Gen-der Bias Study had a huge impact in changing people's awareness and redefining acceptable behavior in what sometimes felt like the Wild West. The more subtle changes took longer—the way women attorneys were treated in conferences, depositions, and the day-to-day dealings on any case. Respect, seeking out and listening to women’s opinions has taken a lot longer and sometimes is

As a partner at Todd & Weld with over forty years of experience liti-

gating divorce, custody, and parental rights cases, and having served as the first president of the Women’s Bar Association, as past president of the Massachusetts Bar Association, and as a member of the Board of Bar Overseers and the Judicial Nominating Commission, Elaine Epstein has carved an im-pressive path in the legal profession--and has seen a lot along the way. She is a role model for new generations of women lawyers who have come after her—and still advo-cates for their advancement in the field. The Women’s Bar Review asks her about what it was really like to practice law as a woman attorney in the 1970’s, what she and her co-founders envisioned when they established the Women’s Bar Association, and whether young women lawyers today have reason to be optimistic about their futures in the pro-fession. WBR: What was the law firm environment really like for women attorneys in the late 1970’s when you were at the beginning of your career? Do any particular moments stand out to you? Elaine Epstein: I started out at a three-attorney firm, doing mostly criminal defense, and then started a firm with a wom-an partner, so I really didn't have the experience of a mid or large firm. But wherever you were as a women attorney, you had to be prepared to meet the challenge and roll with the punches. My first court experiences were in Boston Munici-pal Court in 1975—every day felt like a fraternity initiation ritual—and a race to see if someone could make me cry. But I always believed the courtroom was my arena too and no one was going to drive me out. And for every judge or attor-ney who enjoyed tormenting you, there would be another who was respectful and encouraging. As a family law practitioner, have you seen women’s status and rights in divorce and custody cases change over the years? How so? Yes, these areas have changed tremendously, but the pen-dulum has swung in different directions over the decades. A woman's rights to a fair division of property and support—

Trailblazer: An Interview with WBA Founding Member and First President Elaine Epstein

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“...the push for diversity in all levels of the profession is not

just coming from women—it’s no longer an “us versus them”

atmosphere.”

GW

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Trailblazer, continued from page 4 still a factor, particularly for younger women attorneys. In terms of gender equality, in what areas of the legal profession do you feel that we still have a long way to go? There is still a lack of women sitting at firm tables as partners in equal numbers –and especially serving as equi-ty partners. And women are notoriously missing in action as first chairs in civil trials in the state superior and federal courts—more than one judge reports never having had a woman attorney try a case in the business litigation section. Do you think recent law school graduates take for granted the opportunities available to women in the legal profession today? Of course! As part of the “older” generation, we always feel our heroics are underappreciated! Do women attorneys have reason to continue to be optimistic about their opportunities for leadership in the legal profession (whether in law firms, government, in-house, or professional organizations)? Absolutely, but there is still work to be done. What has changed so much over the years is that the push for diversity in all levels of the profession is not just coming from women—it’s no longer an “us versus them” at-mosphere. So many men at all levels of the totem pole take leadership on these issues very seriously—it is heartwarming for me! The challenge now is how to make more women (and men) of color part of the progress and achieve greater diversity across all spectrums of the profession. That challenge begins in our high schools, colleges and law schools, and progress has been painfully slow. When the Women’s Bar Association was created, what was the vision that you and others saw for the organ-ization? Do you think the WBA has fulfilled (or is on its way to fulfilling) that vision? We envisioned much of what has come to pass: a more level playing field for women, not just for women attorneys’ professional advancement and change in the courts, but for our women clients and women who struggled under the burdens of discriminatory laws or unfair treatment because of their sex or sexual orienta-tion. It’s hard to describe how much has changed in four decades—it’s exciting and always gives me hope for more changes to come. I believe in change and our collective power to make things happen! Catherine Lizotte is a co-chair of the WBA’s Communications Committee. She is a Senior Assistant Corporation Counsel in the City of Boston’s Law Department.

WBA GALA 2018

Elaine Epstein and Jamie Sabino

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each individual state to decide. In Massachusetts, we have found abortion to be a constitutional right under our state constitution, and we also have a majority of legislators and a gov-ernor who support those rights, so really, the change won’t affect women here much, but it would in many other states. KM: That’s true. There are a lot of states that are trying to make it illegal in effect, if not in practice, states like Mississippi and Texas where there is one clinic for the entire state. JS: What they’ve done through a series of regulations on clinics, [through laws] known as TRAP laws (targeted restrictions on abortion providers), is that they’ve made it very difficult [to obtain an abortion]. They are chipping away at access by a huge number of laws that make it more difficult and more expen-sive [to obtain an abortion]. And who knows what will happen when they get to the Supreme Court. My secondary concern [is] that the federal Congress has passed abortion statutes, something that never happened prior to the mid-2000s; abortion statutes were always [passed] at the state level in the past. KM: What do you see as the most pressing issue at the state level, within Massachusetts? JS: Massachusetts has been at the forefront of pro-tecting women’s rights to choice, which is a huge change over the last forty years. Massachusetts was one of the most anti-choice states. As soon as Roe came down, [our legislature] passed a huge number of restrictions [on] abortion, some of which [were] overturned by courts, some of which, like parental consent and judicial bypass, have remained in effect.

Jamie Sabino is a long time member of the Women’s Bar Association who has worked with Planned Parenthood and practiced law in Cambridge with her husband at their firm Kilbaner and Sabino, though she currently works with the Trial Courts in their Massachu-setts Law Reform Institute (MLRI). She is a Board Mem-ber for the Women’s Bar Association and the Women’s Bar Foundation. She is an active member of the WBA’s pro bono committee, assisting in panels that organize assistance for various domestic violence and women’s health/rights issues. On a sunny afternoon in late April, I sat down with Ja-mie Sabino outside of Old City Hall in Boston to talk about the course of women’s rights and reproductive rights over the past forty years. Over coffee and amid the start of the evening rush home, our discussion ranged from the struggles over the past forty years to the struggles and opportunities to come. The interview has been edited and condensed for clarity. Note: this interview was conducted prior to develop-ments in some of the cases and legislative issues dis-cussed and the retirement of Justice Anthony Kennedy from the Supreme Court of the United States. KM: What do you see as the most pressing issue facing women’s health and reproductive issues at the federal level? JS: Clearly, the Supreme Court. At the moment, we are in a fight to preserve a five-four majority supporting the right to abortion as a constitutional right. A num-ber of the judges are fairly old. The change of one seat will make a huge difference in that [as we see with the retirement of Justice Kennedy and the nomination of Judge Brett Kavanagh]. It doesn’t mean that abortion would become illegal again, but that it would be up to

Reproductive Rights Retrospective: An Interview with Jamie Sabino

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Reproductive Rights, continued from page 8 However, it is still a state in which [we are] very hesitant to talk about [reproductive issues], particularly sex education and healthy relationships. We did very well in the legislature in passing the Access for Better Con-traception bill. We cannot get the most innocuous sex education bill through, [though]; we can’t get that bill even [on the floor for discussion]. It keeps getting held up [in committee] because, well, [sex education] is controversial. People don’t want to talk about sex education. KM: What do you consider the greatest achievement in women’s health and reproductive rights law at both the federal and state levels? JS: Clearly Roe v. Wade, which may have flaws, but it was the first case that acknowledges that there are these inchoate privacy rights that people have, that the government can’t reach. I mean, most people don’t even know that when the [United States] Constitution was written, abortion in the first trimester, or until what is called the quickening, when you can feel the child which for many people is even into the second tri-mester, was legal in all of the states, and that beyond that it was a misdemeanor. That changed in the mid-1800s, when the medical societies launched a nation-wide campaign and it went from being legal everywhere to being illegal everywhere. I would say the second biggest gain was in 1992 when the Supreme Court came down with Casey, which in many ways was problematic because it changed the standard, making it easier for states to put on regulations. There was some very moving language in that case about how the right to con-trol one’s fertility is integral to women being able to be full citizens in economic and civic life. JS: In Massachusetts, as I said, there were many restrictions passed immediately, one of which was that Medi-caid, which we now call MassHealth, could not cover abortion. And that’s still true at the federal level that Medicaid funds are not allowed to cover abortion. [But the Massachusetts Supreme Judicial Court] said we don’t have to [provide] healthcare to anybody, but once we do, we must proceed in a manner that treats all decisions equally. We can’t do with the carrot what we couldn’t do with the stick. Since then Massachusetts has covered, through Massachusetts funds, public funding for abortion. KM: There is a case before the Supreme Court right now out of California where the state is requiring crises pregnancy centers, and regulating them through speech restrictions, requiring them to post that they do not provide actual medical services or abortions there, and that legislation is being challenged. Do you see this as

a new and novel way to deal with the crisis pregnancy center issue? JS: People have been talking about it for a long time and the general consensus in the choice community was not to do this because we’ve spent a lot of time saying legislatures should not tell doctors what they should say to patients; they shouldn’t have scripts that doctors have to say. This is a little different because these aren’t medical providers, so I think there are some arguments. But I’m very concerned about how in front of this Court those arguments may [actually] lead to a free speech infringement, and then use of that case to impinge free speech on the other side.

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Reproductive Rights, continued from previous page KM: Isn’t there an argument that it is more commercial speech, and that the Court has been more willing to allow states in the past, with commercial speech, to require truth in advertising, where there are cases on point? JS: Right. But there are states that have passed laws saying you have to tell your patients that if you have an abortion you may get breast cancer, which is scientifically unfounded. That it’s a [relationship between] a doctor and a patient, but it’s also a relationship with the abortion clinic, and if you’re saying that clinic has to post things, I could see them saying that the clinic has to post in their waiting room [that they don’t provide abortion services or medical procedures]. I don’t know how I feel about this. I get the point. I think crises pregnancy centers are incredibly dangerous. But the focus now on this case is speech, and what’s commer-cial speech, and what’s individual speech, and what’s compelled speech? KM: [Focusing on] the language [certain individuals] use when describing their abortion stance: Representa-tive Connor Lamb [from Pennsylvania], Senator Tim Kaine [from Virginia] and former Vice President Joe Biden are all examples of individuals who personally do not believe in abortion, but who support a pro-choice stance. How do you see such voices impacting the choice/life debate? JS: Right. Well, it’s similar in a way, to what [President] Clinton said: “I would like to see abortions safe, legal, and rare.” Which, still, I think that was even worse because it encases the idea that having an abortion is wrong. Women have always had abortions, and women continue to have abortions. I have mixed feelings about these people. I think that it can be powerful to say your personal beliefs shouldn’t be the law of the land. And these are people who’ve also been very clear that they’re not shaming women about abortion. And abortion is probably not a decision they might make depending on their circumstances, which is why it is [a] sort of tacit [approval]. It demonstrates the fact that personal morals and state laws sometimes converge. I don’t buy that people say you can’t legislate morality. We do all the time. But there are areas where state law ought to respect individual decisions and I think it opens it up for that discussion. KM: The WBA was a big proponent of the recently signed bill concerning access to birth control and emergen-cy contraception. It was a huge legislative victory. What do you see as the next area of women’s health that the WBA should support? Or are there multiple areas that provide the WBA with opportunities? JS: Well, one of the things that the WBA is now supporting, that I’m very excited about, and that we just got a win on it today, is the lift the cap on kids. [It] is a welfare rule that if you get pregnant while you’re on welfare, or if you were recently on welfare, you cannot get welfare ben-efits for that child. [The cap] is a punishment, and it’s punishing the kids. When it was passed in the mid-1990s, [the reasoning behind it was that] if they’re [taking] state money they should take responsibility. Well, people on welfare have the same number of kids as people not on welfare. You should not make your decision about whether or not to

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Reproductive Rights, continued from previous page

have this child based on whether you’re going to get an extra hundred dollars a month. [The repeal furthers] the idea of reproductive justice, which is the right to have children, to be able to feed your children, and have them have health insurance, and to make those choices. The WBA has gotten more into that: the rights of pregnant women [with] The Pregnant Worker’s Fairness Act and the Lift the Cap bill which got passed today as an amendment to the House budget. KM: How do you see transgender rights intersecting with women’s health rights? JS: It’s the idea of your own personal identity. Where do you see yourself in your gender identi-ty? What makes your personal moral feelings tick? I think there is a similarity in the idea that people have a core of their being that should be respected. I think we should be supporting people’s core identities and the choices they make about their individual lives and not shaming them. I think that being active in supporting a broad agenda in the legislature and on the ballot is important. I also think that highlighting the stories of individuals [is a good idea]: the WBA should publish articles about the choices people made about their lives. I think [we should] monitor the media for positive visions, [stories] of transgender people, of women choosing abortion, of women choosing not to have [an] abortion. [I also think we should focus on] par-ticularly supporting young people in these choices. That’s what I’m hoping, for all these issues, around transgender issues, choice, sexual choices, that [the next generation will] not be so hung up about it. KM: The #MeToo Movement has swept the country. It has been dominating the news. How do you see this movement impacting the discussion of women’s health and women’s rights? JS: [The movement is] particularly discussing [issues of consent], but it’s impacting the discussion around sex education. A lot of what sex education is is not this is the penis, this is the vagina and it goes in each other. A lot of sex education is around healthy relationships: how to say yes, how to say no, how to have a healthy relationship. This is about teaching kids about healthy relationships and people are seeing that in a different way. I also think that it’s raising the idea of how wom-en are impacted just because of their gender. I’m hop-ing this shines more of a light on [the fact that] women are competent adults who can make their own deci-sions and should be left alone to make those decisions whether it’s sleeping with somebody or having an abortion or their gender identity. So I think there’s some overlap there, but particularly around the ideas of consent and healthy relationships.

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Reproductive Rights, continued from previous page

KM: Serena Williams spoke out about her post-birth complications, but commented that many wom-en, particularly women of color and those women experiencing and living in poverty face greater hurdles ob-taining quality maternal care. How do you see such issues progressing? JS: That is huge. When you look at the differences in the outcomes of women of color, their health outcomes from their pregnancies and afterwards, they are huge. You also see it in the difference in birth rates. I think it goes back to the reproductive justice and the health justice movement. We need to be focusing on health equalities, and the outcome of your pregnancy should not depend on your healthcare. That again is the sort of the reproductive justice that I know the WBA has been interested in, and supported many issues around that. But it’s [got to] really come at it full throttle, because it is disgraceful. KM: Does this dovetail in with the Pregnant Worker’s Fairness Act? JS: Yeah, it definitely does. It is about supporting women in all of their choices, but especially supporting sexu-al health choices. Sexual health should be as common and as mainstream as cardiac health and dental health, and yet it isn’t. The lack of women getting reproductive health, it’s huge. I think that they are all tied in to sup-porting the choices that women and families make. But it has to start with everybody’s health. Kimberly Mason is a Patent & Trademark Paralegal at Gesmer Updegrove in Boston. She has a passion for is-sues relating to technology and civil rights, especially privacy. She has a Masters from Villanova University and a JD from Suffolk University of Law School. She serves as a Member of the Communications ,Gala and New Lawyers Committees.

Over the years:

The WBA at the

State House

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judicial, business, non-profit and education. In 2003 you also assumed the role of Executive Di-rector of the WBA. What challenges did you face in overseeing both of those organizations? The most immediate need was to ensure the smooth transition from two separate organizations into two cohesive organizations under one leadership struc-ture. We re-tained two Boards with dis-tinct but con-nected missions and worked to create seamless programming, fundraising, and inspirational messaging and branding. We sought to reach a greater diversity of stakeholders, as well, en-gaging more members of the legal community -- practitioners, judges, law students, and law firms -- to become active in both the WBA and WBF. During your tenure from 2001 to 2008, what was accomplished in terms of expanding the role of the WBA/WBF in both the legal community and the Massachusetts community at large? We gained great respect and raised our visibility among the judiciary and legal community as a top notch advocacy organization for women lawyers and provider of pro bono legal services for low-income individuals. We doubled membership in the WBA and dramatically increased recruitment of attorneys who volunteered in the WBF’s pro bono legal pro-jects. We found and persuaded a law firm, Holland & Knight, to serve as primary legal counsel for the Women's Lunch Place Project. We established Men-toring Circles which continue to this day. New com-mittees were launched, including the Women of Col-or Committee, the Business Development Com-

On a beautiful spring day I had the opportunity to meet with Elis-abeth J. “Lissy” Medvedow in her office at the Rappaport Center for Law and Public Policy on the cam-pus of Boston College Law School

where she serves as the Executive Director of the Cen-ter. It was fascinating to hear her speak of the path she took following her graduation from the University of Pennsylvania and Northeastern Law School to her cur-rent position. Upon graduating from law school, Lissy taught at Suffolk University Law School, and then clerked for Judge Raya Dreben of the Massachusetts Appeals Court followed by a clerkship with Judge John J. McNaught of the US District Court for the District of Massachusetts. She then served for ten years as an Assistant Attorney General in the Criminal Bureau of the Massachusetts Attorney General's Office before becoming Executive Director of the WBF and then WBA. After leaving her position there she assumed the role of Executive Direc-tor of Discovering Justice, a civic education non-profit, before moving to her current position. I had the opportunity to speak with Lissy about her memories of her service at the helm of the WBF/WBA. Lissy, I know you assumed the role of Executive Direc-tor of the WBF in 2001. What led to the decision to leave your position with the Attorney General's Office and enter the world of non-profits? After teaching, clerking, and practicing law for more than 15 years, I wanted to have a more direct impact on society and thought that working in the non-profit sector would achieve that goal. Leading the Women’s Bar and later Discovering Justice was both exhilarating and exhausting. Challenges abounded. Both organiza-tions needed rebuilding of infrastructure, a significant infusion of funding, and support, recognition, and re-spect from the various constituent communities: legal,

Elisabeth J. Medvedow: A Visionary

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“...do not remain silent in the face of adversity, discrimination or harassment; always use your voice to advocate for yourself and others.”

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Elisabeth Medvedow, continued from page 13

mittee, and others. Significantly, we also deeply enhanced our training for the Family Law Project for Battered Women, including creating a comprehensive manual and providing strong mentors, which enabled us to re-cruit many more lawyers, and ultimately, more than double the number of cases we were able to take.

On the fundraising front, during my tenure, we created Comedy Night, the annual fundraiser for the WBF - a fun and funny event. We initially auditioned lawyers and then pleaded with them to “Stand Up for the WBF” as comedians. David Yas, then publisher of Massachusetts Lawyers Weekly, agreed to be our inaugural em-cee and stayed for many years thereafter. Two lawyers from Barrett & Singal had the audience in stitches: Michelle Peirce and Bruce Singal. Bruce began his stand-up routine in a suit which he proceeded to whip off to reveal a Superman costume. Many other notable lawyers braved the stage to raise funds for the WBF’s worthy causes including Georgia Katsoulomitis, now Executive Director at Mass Law Reform, and former Judge Suzanne Delvecchio.

What did you view as some of the most concerning issues facing female lawyers in the workplace?

Equal pay for women was - and sadly remains - a critical issue for women notwithstanding that I began at the Women’s Bar in 2001 and it’s now 2018. We needed to ensure that women were afforded greater opportuni-ties for advancement, and then as now, we still need to figure out how to balance work and families to en-sure that women are successful throughout their professional careers. The Women’s Bar Association contin-ues to be a strong and effective advocate to effect change on these vital issues.

What advice would you give to the younger members of the WBA in their role as attorneys whether it is in private practice, the public sector, in house counsel, etc.?

Lawyers should become involved in professional associations, as well as in community organizations, pay it forward, and reach out to new lawyers or law students to help advance their careers. Consider specializing in an area of law; job opportunities are often more available for lawyers who develop expertise in a particular subject area. Follow your passion, whether that means working in the non-profit or public sector or staying in the private sector. Most importantly, do not remain silent in the face of adversity, discrimination or harass-ment; always use your voice to advocate for yourself and others.

What would you say was the most rewarding aspect of your role as Executive Director of the WBA/WBF?

There were two parts of being the Executive Director of the WBA & WBF that were extraordinarily meaning-ful to me. We were able to raise the profile and visibility and gain significant respect for the Women’s Bar. We changed the face of the organization and really catapulted it into the next decade. Mentoring new law-yers has always been an important and meaningful part of my life personally and professionally. Watching the “newbies” gain experience and confidence and bearing witness as their careers and lives blossom has al-ways given me great joy and pride.

Brenda McNally is a founding partner of the firm Ready, Kiernan & McNally LLP. She focuses her practice on areas of

disability law including workers’ compensation, personal injury, Social Security disability and public employee disability

retirement. She is an active member of the WBA and sits on the Communications Committee.

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How the Judicial Application Process Works Massachusetts is one of less than a dozen states where judges are not elected. Instead, judges are appointed by the Governor with the assistance of the Judicial Nomi-nating Commission (“JNC”), a gubernatorial appointed commission of lawyers that helps governors select judicial candidates. Applicants for judgeships in Massachusetts state courts start the process by filling out a comprehen-sive application, which includes a resume and a writing sample. First, applications are reviewed “blindly” by JNC Commissioners, without identification of the applicant. If an applicant makes it to the next round, their identity be-comes known along with additional information about their qualifications. From this pool, applicants are selected for interviews with the JNC. Following interviews and due diligence, the JNC generally submits between three and six judicial candidates to the Governor for his or her consider-ation. Ultimately, the Governor nominates a candidate, who must then be approved by a majority of the Gover-nor’s Council pursuant to the Constitution. The Governor’s Council is composed of 8 elected Councilors and the Lieu-tenant Governor. Generally, the Governor’s Council will hold a public hearing to interview a judicial candidate prior to voting on the nomination. Gender Disparity in the Judicial Pipeline Today The percentage of women judges in Massachusetts state courts is higher than the national percentage of women judges in other states. According to the National Associa-tion of Women Judges, in 2018, women filled 32% of the judgeships in state general jurisdiction courts, 35% of the judgeships in state limited and special jurisdiction courts, and 33% and 37% of the judgeships in state final and inter-mediate appellate courts, respectively.3 In Massachusetts, women fill the following percentage of state court judge-ships: approximately 41% in the courts of limited jurisdic-tion (Juvenile, Probate and Family, Housing, District, Land, and Boston Municipal)4, 35% in the Superior Court, 40% in the Massachusetts Court of Appeals, and 43% in the Su-preme Judicial Court.5

While these percentages are encouraging, a review of the number of women judges in the Superior Court over the past 20 years tells a more nuanced story. According to Superior Court historical data, in 1998, there were 25

A Look Back Over the Past 40 Years at the Presence of Women Judges on the Bench in Massachusetts And An In-terview with the Honorable Judith Fabricant, Chief Justice of the Superior Court In 1978, Justice Ruth Abrams became the first female Justice on the Massachusetts Supreme Judicial Court. That same year, Massachusetts attorney Jamie Sabino started her ca-reer as a litigator in private practice, primarily appearing in the Superior and District courts throughout Norfolk, Suffolk, and Middlesex Counties. Ms. Sabino recalls that at that time, it was rare to appear in front of a female judge in the Superi-or Court for one of these counties. She observed further that the women judges before whom she did appear tended to be more experienced than many of their male counterparts, and conventional wisdom dictated that a female candidate needed to be more experienced than her male competitors to receive a judicial appointment. Today, women make up roughly 34% of the judges in the Massachusetts Superior, Appellate, and Supreme Judicial courts.1 While the gender disparity between male and female judges has narrowed in the past 40 years, there is much room for improvement, es-pecially considering that just over 50% of law school attendees are women and have been for the past two years.2 Why Gender Diversity Is Important As written in the brief supporting Lelia J. Robinson’s applica-tion to be the first woman admitted to the Bar and practice in the Massachusetts courts of law, “[t]he best administra-tion of justice may be most safely secured by allowing the representation of all classes of the people in courts of jus-tice.” The Honorable Judith Fabricant, Chief Justice of the Superior Court, echoes this sentiment. According to Chief Justice Fabricant, diversity among judges with regard to gen-der, race, and different ethnic, cultural, economic, and pro-fessional legal backgrounds is important to the administra-tion of justice because the public has greater confidence in the judiciary and the judicial system when judges reflect the diversity of the community they serve. The Chief Justice notes further that judges often work collaboratively by “informing, training, consulting, and sharing with each other the benefits of their personal judicial experience,” and that greater diversity among judges, including gender diversity, helps broaden the lens through which judges view their role in our courts.

Women on the Bench: Is the Pipeline Working? Alexandra Pichette

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Women on the Bench, continued from page 15 women judges on the Superior Court, which comprises approximately 30% of the judicial positions in that court. In 2003, the number of women judges climbed to 30, which constituted 36.5% of the judges on the Superior Court. The number of women judges on the Superior Court stayed relatively steady until 2015, when it dropped to 24. In 2016, there were only 22 women judges on the Superior Court, or 26%, the lowest number in the past 20 years. Today, the number of women judges on the Superior Court is back to 28 after the recent retirements of Justices Tina S. Page and Mary-Lou Rup.6 Ultimately, while the percentage of women judges has improved since 1978, the percentage is only slightly higher than it was 20 years ago in 1998, and is not higher than it was 15 years ago in 2003. Ways to Improve the Disparity in the Judicial Pipeline One reason for the gender disparity in state court judgeships is that there are fewer female candidates entering the judi-cial pipeline. A potential explanation for the disparity in the pipeline is that today, civil cases go to trial less often than they did in previous years. For this reason, junior attorneys in civil practice are less likely to gain trial experience, which is a requirement for a successful judicial candidate. While this shift in practice affects attorneys of both genders in their earlier years of practice, studies have indicated that the overall percentage of practicing women attorneys, particularly in private civil practice, decreases over time. For this reason, male attorneys may be more likely to gain the necessary trial experience later in their careers after a greater number of women have left the practice of law or accepted legal posi-tions that do not provide an opportunity for trial experience. Chief Justice Fabricant shares the concern that junior litigators are not receiving enough trial experience, and in re-sponse, directs litigants to the Superior Court’s Policy Statement, which notes that, “in our current Superior Court dock-et, fewer cases go to trial than in the past, thereby reducing the opportunities for less experienced counsel to have an active role in a courtroom.” The Superior Court therefore encourages lawyers with cases filed in the Court’s civil docket to promote the participation of less experienced lawyers in courtroom proceedings, including by allowing these attor-neys to participate meaningfully at trial. At a recent presentation titled, “a View from the Bench,” the Superior Court’s Justice Douglas Wilkins made a strong argument in favor of including junior attorneys at trial, noting that juries are often diverse, and that the material inclusion of a more diverse set of attorneys at trial—including with regard to age, gender, and race—is likely to resonate with these important individuals. Notably, several federal court judges in Massachusetts explicitly encourage the participation of junior attorneys in court in their standing orders. Another potential reason for the gender disparity in the judicial pipeline is that there are fewer women than men on the bench available to serve as role models in the Court or to encourage women candidates to enter the pipeline, either directly or indirectly. The role a mentor or role model plays can be significant; for example, Justice Abrams was known for encouraging and mentoring women attorneys, and it has been said that several of these women followed her on to the bench. The Women’s Bar Association has long been committed to increasing the number of women on the bench. Originally this work was conducted under the purview of the Awards, Appointments, and Endorsements Committee, harkening back to the days when bar associations endorsed particular candidates. Historically, the WBA has actively participated in various aspects of the judicial nomination process. For example, in the early and mid-2000s, the WBA called former Gov-ernor Mitt Romney to task for appointing relatively few women to the bench. Although Governor Romney and his camp contested the WBA’s charge that his judicial nominations lacked diversity, he ultimately increased the number of female judicial appointments. Today, the WBA’s work supporting and cultivating qualified women candidates to the bench has its own committee: the Judicial Pipeline Committee (“JPC”). The JPC continues to work with women at every stage of the

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application process, from the written application, selection of references, mock interviews, and preparation for the Gov-ernor’s Council. Critically, the JPC makes a point to encourage women to think about a judgeship starting earlier on in their careers, strategizing with them about gaining the professional development and trial experience necessary for a judgeship. Additionally, the JPC identifies qualified women candidates and puts them in touch with sitting judges to gain a practical sense of serving as a judge and to inspire them to consider seriously applying. For her part, Chief Justice Fabricant advises attorneys interested in becoming a judge to be strategic about ensuring they receive substantive trial experience as early as possible in their career. She also offers the following advice: “Be for-ward.” She recalls that when she began her professional career, the word “forward” often had a negative connotation when used to describe a woman’s conduct. But she hopes female attorneys today are receiving different advice, be-cause “an attorney needs to be forward to become a judge.” Like-minded, forward-thinking candidates can access information regarding the JPC here: https://wbawbf.org/content/committee/judicial-pipeline; and https://wbawbf.org/content/judicial-nomination-commission-information-and-resources. Alexandra Pichette is an Associate at Morgan, Brown & Joy, LLP, where she counsels and represents employers on a wide variety of labor and employment law issues, including prevention of unlawful discrimination and harassment, defensible discipline and performance management, and wage and hour issues. She is a member of the WBA Communications Com-mittee. ________________________________________ 1. 2018 US State Court Women Judges, National Association of Women Judges, https://www.nawj.org/statistics/2018-us-state-court-women-judges, citing The American Bench 2018, Forster-Long, LLC (totals do not include women judges in the state limited and special jurisdiction courts). 2. See A Current Glance at Women in the Law, American Bar Association – Commission on Women In the Profession (January 2018), https://www.americanbar.org/content/dam/aba/administrative/women/a-current-glance-at-women-in-the-law-jan-2018.authcheckdam.pdf. 3. 2018 US State Court Women Judges, National Association of Women Judges, https://www.nawj.org/statistics/2018-us-state-court-women-judges, citing The American Bench 2018, Forster-Long, LLC. 4. See Juvenile Court Justices, Mass.Gov (2018), https://www.mass.gov/info-details/juvenile-court-justices; Probate and Family Court Justices, Mass.Gov (2018), https://www.mass.gov/service-details/probate-and-family-court-justices; Housing Court Justices, Mass.Gov (2018), https://www.mass.gov/info-details/housing-court-

justices#judges-; District Court Justices, Mass.Gov (2018), https://www.mass.gov/info-details/district-court-justices; Land Court Justices, Mass.Gov (2018), https://

www.mass.gov/info-details/land-court-justices; Boston Municipal Court Justices, Mass.Gov (2018), https://www.mass.gov/service-details/boston-municipal-court-justices. 5. See Superior Court Justices, Mass.Gov (2018), https://www.mass.gov/info-details/superior-court-justices#superior-court-justices-; Appeals Court Justices, MASS.GOV (2018), https://www.mass.gov/lists/appeals-court-justices; Supreme Judicial Court Justices, Mass.Gov (2018), https://www.mass.gov/service-details/supreme-judicial-court-justices.

6. See Superior Court Justices, Mass.Gov (2018), https://www.mass.gov/info-details/superior-court-justices#superior-court-justices-.

Women of Color Committee: All Rise! Western MA Committee: Encouraging Judgeships

Boston 2011 Springfield 2018

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report provides 17 constructive recommendations to help law firms – and other organizations - develop and implement positive changes that promote a diverse, respectful, and inclusive workplace culture.

The survey was open to anyone who works or has worked in a law firm in Massachusetts, whether or not the firm has offices outside the Commonwealth. Re-spondents were not only asked about their experiences, but about whether they reported incidents described and if they did not, to share their reasons for not doing so.

The WBA appreciated the opportunity to collaborate with Lauren Stiller Rikleen on this critical initiative. The WBA’s Law Firm Advancement Committee chairs Jody Newman of Hogan Lovells US LLP; Sarah Gagan of Lat-ham & Watkins LLP; and Heather Gamache of Prince Lobel Tye LLP contributed greatly to this effort and pre-sented an all-star panel discussion on September 13th, Walking the Walk: A Candid Discussion of the WBA’s Report on Workplace Conduct. They continue to plan programs and initiatives to support this work. The WBA is also grateful to the following organizations, which provided the funding that made this study possi-ble: Burns & Levinson LLP; Eos Foundation; Foley Hoag LLP; Foley & Lardner LLP; Lawyers Weekly; Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.; Latham & Wat-kins LLP; Prince Lobel Tye LLP; Sherin and Lodgen LLP; and Wilmer Cutler Pickering Hale and Dorr LLP.

In June 2018, in the wake of #MeToo and the enormous focus on workplace behaviors that profoundly impact ca-reers, the Women’s Bar Association of Massachusetts, in partnership with the Rikleen Institute for Strategic Lead-ership, announced the results of its groundbreaking sur-vey: Survey of Workplace Conduct and Behaviors in Law Firms.

The survey was created to: provide a better understand-ing of behaviors taking place in the law firm work environ-ment; identify steps that have been taken to address be-haviors of concern; and offer recommendations that lead-ers can implement to ensure they are providing a work-place that feels safe, respectful, and inclusive. The lessons learned from this survey have broad-based applicability across all sectors.

One key finding of the survey is that unchecked power imbalance serves as the foundation for and perpetuates negative and inappropriate behaviors in the workplace. In the vast majority of responses, the incidents described happened to individuals who were at early stages of their career, or to those who were otherwise in a subordinate role that left them particularly vulnerable to unchecked behaviors.

Power imbalances also emerged in the ways in which these incidents were handled. Many of the experiences described by the respondents were perpetrated by indi-viduals with important roles within their firms. As a re-sult, the majority of respondents did not report negative behaviors because they feared retribution or because the people they would report to were involved in the inci-dents described.

“By undertaking this study, the WBA has taken an im-portant step to constructively address difficult workplace challenges that continue to thwart careers,” stated Lauren Stiller Rikleen, president of the Rikleen Institute for Stra-tegic Leadership. “As these challenges continue to sur-face, every sector has an obligation to develop infor-mation specifically analyzing the existence and prevalence of behaviors that create work environments that feel un-safe or inhospitable to those who work there.”

In addition to a detailed analysis of the survey results, the

Women’s Bar Association, in Partnership with the Rikleen Institute for Strategic Leadership, Announces Results of its Groundbreaking Survey on Workplace Conduct and Behaviors in Law Firms

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Deborah J. Peckham, Burns & Levinson; Meredith Ainbinder, WBA President, Emerson College; Carmen Ortiz, Anderson & Kreiger LLP; Beth I.Z. Boland, Foley & Lardner LLP

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husband to stay 500 yards away from plaintiff and one mile from her home were justified Fabre v. Walton, 436 Mass. 517 (2002) - plaintiff, who had obtained a 209A abuse prevention order against defend-ant, her former boyfriend, could seek to dismiss an abuse of process claim filed by former boyfriend as a result of the 209A. 2003 Goodridge v. Department of Public Health, 440 Mass. 309 (2003) - limiting benefits of civil marriage to opposite-sex couples violates equal protection under Massachusetts Constitution Bongaards v. Millen, 440 Mass. 10 (2003) – real property owned by decedent was not part of estate to which surviv-ing spouse could elect share 2004 T.F. v. B.L., 442 Mass. 522 (2004) – former same-sex part-ner of biological mother of child was not required to pay child support, because only an implied contract existed between the parties regarding the former partner’s prom-ise to co-parent, which was unenforceable Cohan v. Feuer, 442 Mass. 151 (2004) – death of spouse terminates alimony obligation unless original decree, agreement, or order of court provides otherwise 2006 Smith v. Winter Place LLC, 447 Mass. 363 (2006) - employ-ees are protected against retaliation for complaining inter-nally to their employer about wage act violations 2007 Dupont v. Commissioner of Correction, 448 Mass. 389 (2007) – male prisoners were not similarly situated to fe-male prisoners, especially in terms of prison safety and security, and thus prison’s decision to house only male inmates in departmental disciplinary unit did not violate equal protection 2009 Pierce v. Pierce, 455 Mass. 286 (2009) – voluntary retire-ment by one divorced spouse does not terminate the oth-er spouse’s entitlement to alimony absent a change in circumstances of the parties

Under the leadership of its Amicus Committee, the WBA regu-larly participates as amici in cases in the Massachusetts and federal courts, supporting positions that are consistent with its mission of championing the legal rights of women in all spheres, including those related to domestic relations, repro-ductive rights, workplace discrimination, domestic violence, wills and estates, and criminal law. As we celebrate the WBA’s 40th anniversary, we look back at some of the pivotal cases which have benefited from the WBA’s tremendous ad-vocacy. 1986 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) - a sex-ually harassing work environment may constitute discrimina-tion of the basis of sex thus violating Title VII 1989 Rust v. Sullivan, 889 F.2d 401 (2d Cir. 1989); 500 U.S. 173 (1991) – regulations interpreting Title X gag rule that pre-vented family planning clinics with federal funding from re-ferring, advising or counseling about abortion upheld Price Waterhouse v. Hopkins, 490 U.S. 208 (1989) - female who was refused partnership could sue for sexual harass-ment, and evidence showed that sexual stereotyping played a part in employment decision 1999 Rosenberg v. Merrill Lynch, et al., 170 F.3d 1 (1st Cir. 1999) - sexual harassment claims may be arbitrated if, as condition of employment, employees sign a form compelling arbitra-tion, but arbitration agreement at issue did not meet the standard for upholding such agreements 2001 Pearson v. Person, 52 Mass. App. Ct. 156 (2001) - upholding the trial court’s calculation of child support modification, which did not account for total amount father could pay 2002 Richards v. Mason, 54 Mass. App. Ct. 568 (2002) - trial court erred in not considering whether requiring twelve-year-old child to be known by his father’s surname was in child’s best interests Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002) - modifi-cations in 209A abuse prevention order that required former

WBA Amicus Briefing Highlights Compiled by the WBA Amicus Committee

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Amicus Briefing, continued from page 22 2011 Commonwealth v. Aviles, 461 Mass. 60 (2011) - while sexual assault victim’s testimony to her grandmother about the assault was not admissible under the first complaint doctrine, the admission did not prejudice defendant, and court modified first complaint doctrine to allow more flexibility for judge determining admissibility 2012 Gill v. Office of Personnel Management and Massachusetts v. U.S., 699 F. Supp. 2d 374 (D. Mass. 2010, affirmed by Com-monwealth v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012) - finding DOMA did not survive rational basis review for purposes of equal protection analysis Fisher v. University of Texas, 570 U.S. 297 (2012) - strict scrutiny must be applied to racial classifications in university admissions programs, and classification must be narrowly tailored to obtain the educational benefits of diversity Commonwealth v. Pugh, 462 Mass. 482 (2012) - woman could not be found guilty of involuntary manslaughter for the death of her fetus resulting from an unassisted home birth 2013 Flagg v. Ali-Med, 466 Mass. 23 (2013) – plaintiff could maintain claim of associational discrimination based on termina-tion because plaintiff’s wife developed disabling medical condition Hollingsworth v. Perry, 570 U.S. 693 (2013) - petitioners did not have standing to appeal federal district court’s ruling holding California’s Proposition 8 (defining marriage as between a man and a woman) unconstitutional, where petition-ers had no role in law’s enforcement 2014 Singh v. Capuano, 468 Mass. 328 (2014) – holding that neither defendant’s visitation rights imposed by probate court nor the pendency of any criminal proceeding should affect a judge’s consideration of the duration of a 209A abuse pre-vention order 2015 Chin v. Merriot, 470 Mass. 527 (2015) – holding that provisions in alimony reform act applied prospectively, such that former husband could not seek extinguishment of alimony obligations that existed prior to act’s effective date Blouin v. Chief Justice of the Probate and Family Court Department, 474 Mass. 231 (2015) - indigent parent has right to counsel when petitioning to remove or modify guardianship order if parent has meritorious claim Commonwealth v. Walters, 472 Mass. 680 (2015) - although a Facebook post can constitute a threat for purposes of the stalking statute, jury could not have found defendant’s actions rose to such a threat for purposes of stalking conviction, although evidence was sufficient for convictions of criminal harassment, criminal violation of a restraining order, and perjury 2016 Gyulakian v. Lexus of Watertown, 475 Mass. 290 (2016) - evidence was sufficient to find sexual harassment based on a hostile work environment, supporting compensatory damages, and jury could have found that employer failed to take adequate remedial measures, and that failure was egregious, supporting award of punitive damages Partenan v. Gallagher, 475 Mass. 632 (2016) – former female partner of mother could bring a claim of parentage under statute presuming man to be child’s father if he received child into home and held himself out as child’s parent

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2017 Beacon Residential Management, L.P. v. R.P., 477 Mass. 749 (2017) - mother could participate in an eviction pro-ceeding seeking the protections of the Violence Against Women Act even though she was not named on lease, where evidence showed abuser prevented her from being added to the lease as a way of controlling her California et al. v U.S. Health and Human Services, 281 F.Supp.3d 806 (N.D. Cal.) – granting motion for preliminary injunction enjoining Department of Health and Human Services from implementing two interim final rules allowing employers to opt out of providing contraceptive coverage due to religious beliefs Pennsylvania v. Trump, 281 F. Supp. 3d 553 (2017) - granting motion for preliminary injunction enjoining Depart-ment of Health and Human Services from implementing two interim final rules allowing employers to opt out of providing contraceptive coverage due to religious beliefs 2018 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 138 S. Ct. 1719 (2018) – reversing Colorado Court of Appeals’ decision finding that Colorado Civil Rights Commission could issue cease and desist order to bakery refusing to bake cakes for LGBTQI couples, because Commission did not comply with the Free Exercise Clause’s requirement of religious neutrality in making its decision

OVER THE YEARS

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Spotlight on Legislative Issues

Female Genital Mutilation Mariya Taher I was born in the United States, but when I was seven years old, I underwent female genital cutting/mutilation (FGM/C) in India. At the time there were no laws in the United States that could have prevented the situation from occurring. Today, FGM/C is banned under under federal law, yet, only 26 states have laws against it. Mas-sachusetts is not one of them. According to the Center for Disease Control and Preven-tion, it is estimated that over half a million girls and wom-en in the United States are at risk. Massachusetts ranks 12th in the nation for at-risk populations with an estimat-ed 14,591 women and girls. FGM/C involves removing and damaging healthy and nor-mal female genital tissue on girls, and can cause physical harm including pain, bleeding, shock, tetanus, genital sores, and cause long-lasting psychological harm includ-ing sexual disorders, fear of sexual intimacy, nightmares and post-traumatic stress disorder. Since 2012, the Massachusetts Women’s Bar Association has advocated for a state law criminalizing FGM/C. Yet, still to this day, no law has been put into place. The cur-rent bills, S.788, and H.2333, have been sent to com-mittee for study and most likely will not move forward either. In an effort to raise more awareness on the issue and to prompt community action to encourage MA state legisla-tures to pass such a law, I, along with two other women, Aisha Yusuf (also a survivor of FGM/C) and Hanna Stern (an advocate against FGM/C), started a change.org peti-tion calling on Governor Charlie Baker, Speaker of the House Robert DeLeo, and Senate President Karen Spilka, to take action and protect all girl in Massachusetts as FGM/C is nearly always carried out on minors, is a viola-tion of the rights of children, and reflects deep-rooted inequality between the sexes that constitutes an extreme form of discrimination against women. We need a bill in Massachusetts that unequivocally reiter-ates that female genital mutilation/cutting is a form of violence. There are laws against domestic violence and sexual assault. We need a law against FGM/C as well.

By Mariya Taher, MSW, MFA

Campaign to Lift the Cap on Kids Naomi Meyer The Women’s Bar Association played an im-portant part in the Campaign to Lift the Cap on Kids, a statewide coalition of 122 organizations that successfully sought repeal of the welfare family cap. Enacted in Massachusetts in 1995, the family cap rule denies cash benefits to children conceived after their families have received bene-fits. Legislators adopted the family cap in the belief that denying the $100-per-month increase in ben-efits that families would otherwise receive for another child would deter poor mothers from having babies. They did so even though there was no evidence at the time that the availability of benefits affected women’s decisions about childbearing. In fact, families receiving cash bene-fits have the same average number of children (1.8) as other Massachusetts families. Welfare benefits are already extremely low, even when all the children in a family are included: the maximum monthly grant for a mother and two children is $578. However, if one of the children is excluded by the family cap, then the maximum grant is only $478. Children excluded under the family cap also do not receive the annual clothing allowance (increased to $350 per child for FY 19) provided to children on welfare each September to help pay for new clothes for the coming school year and winter. The family cap has not reduced childbearing. There are about 8,700 children in Massachusetts excluded from their families’ welfare grants in 2018 due to the family cap. Instead of preventing births, the family cap has prevented children from getting the basic supports they need to thrive. Their families struggle to provide them with ne-cessities such as clean diapers, warm clothing, and healthy food. Their older siblings suffer as well, as parents must to stretch the older child’s meager benefits to provide for the whole family.

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Twenty-four states adopted a family cap or similar welfare policy as part of “welfare reform” in the 1990s. Since then, seven states have repealed their family caps – including Oklahoma, Nebraska and, most recently, California in 2016. This leaves Massachusetts as one of only seventeen states with such a law. A group of advocates in Massachusetts, led by the Massachusetts Law Reform Institute and Greater Boston Legal Services, launched the Campaign to Lift the Cap on Kids in the fall of 2016. Consistent with its longstanding commitment to defending the rights of low-income women and chil-dren, the WBA was quick to join the campaign coalition and adopt family cap repeal as one of its legisla-tive priorities. It helped introduce the issue to legislators by featuring two speakers, pediatrician Dr. Deborah Frank and House bill sponsor Rep. Marjorie Decker, on the importance of family cap repeal at its 2017 Legislature Breakfast at the State House. Throughout the 2017-2018 legislative session, the WBA advocated to Lift the Cap on Kids, both weighing in as an organization and sending action alerts asking its members to contact their state legislators at critical moments. Along with other coalition members, WBA President Michele Liu Baillie testified in support of the bill before the Committee on Children, Families, and Persons with Disabilities, which re-ported the bill out favorably. Ms. Baillie also emceed the campaign’s Caps and Mittens Event at the State House, which highlighted the difficulty families face buying warm winter clothes when a child is denied benefits. In addition to filing bills in the House and Senate – sponsored by Rep. Decker and Sen. Sal DiDomenico, respectively -- the campaign coalition also pursued repeal of the family cap through the state budget for Fiscal Year 2019. Repeal was included in the House budget effective July 1, 2019, and in the Senate budget effective January 1, 2019. The coalition advocated for the earlier effective date, which was ulti-mately adopted by the Budget Conference Committee. Despite overwhelming support for family cap repeal from the Legislature and the coalition’s supporting organizations, Governor Baker vetoed it. He sent the budget provision back to the Legislature with an amendment that would have repealed the family cap only if the Legislature also agreed to cut welfare benefits to over 7,000 children whose parents are so severely disabled that they receive federal Supple-mental Security Income (SSI) benefits -- an unacceptable attempt to pit one group of impoverished children against another. The Legislature had already rejected his proposal to cut welfare to the children of SSI recipients in each of the prior two fiscal years. To preserve the family cap repeal, the Legislature had to reenact it as a new bill, without the Governor’s amendment. It did so on July 31, 2018, the last day of formal session in the 2-year legislative session. The Governor then had 10 days to veto the new bill, which he did on August 3, 2018. With no more formal sessions scheduled, the Leg-islature cannot override this second veto. Legislative leaders have said they will repeal the family cap early in the new session that begins in Janu-ary 2019. Despite this frustrating delay caused by the Governor, the coalition is confident that Massa-chusetts will indeed Lift the Cap on Kids. Naomi Meyer is a Senior Attorney in the Welfare Law Unit at Greater Boston Legal Services and one of the leaders of the Campaign to Lift the Cap on Kids. She is a member of the WBA’s Legislative Policy Committee.

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Sponsored by the Amicus Committee Social Law Library in the John Adams Courthouse On May 30, 2018, the WBA’s Amicus Committee spon-sored an event titled “Appellate Advocacy in the E-Filing Age” which brought together appellate practi-tioners and interested WBA members with members of court staff and the judiciary to discuss e-filing in Massa-chusetts courts and to celebrate the WBA’s successes in its amicus practice over the past forty years. The first panel, moderated by former Amicus Com-mittee Co-Chair Afton Templin and consisting of Clerk of the Appeals Court Joseph Stanton, Justice Elspeth Cypher, First Assistant Clerk of the Supreme Judicial Court Maura Looney, and Clerk of the Supreme Judicial Court Francis Kenneally, addressed e-filing practice and procedure in both the Appeals and Supreme Judicial Courts. Clerk Stanton discussed a proposed standing order that would increase the scope of e-filing in both courts, as well as proposed amendments to the Rules of Appellate Procedure that would encourage paper-less practice. Clerk Kenneally and First Assistant Clerk Looney also spoke about the process for accepting ami-cus briefs in the SJC, and emphasized that the goal of amicus briefs is to add value or to fill gaps in parties’ briefs, rather than to restate arguments already made by the parties. Justice Cypher then offered tips for attorneys sub-mitting amicus briefs. She noted that amicus briefs are a useful tool to point out the practical consequences of the judge’s decision, to provide a survey of how other jurisdictions have dealt with an issue, or to explain a highly technical point that might be outside of the judges’ areas of expertise. She also provided a few practical tips for e-filing briefs, noting that because many of the judges now read briefs electronically on mobile devices, it is helpful if attorneys include internal hyperlinks in PDF documents, including a hyperlink to the table of contents. This helps justices to more easily navigate through an attorney’s brief.

Appellate Advocacy

in the E-Filing Age The second panel included a review of amicus briefs filed on behalf of the WBA in significant cases in state and federal court. WBA Deputy Director Rachel Bis-cardi, Amicus Committee Co-Chair Elizabeth Brusie, former Amicus Committee Co-Chair Afton Templin, and attorneys Dorothy Bourassa and Eileen Fava dis-cussed the history of WBA amicus advocacy by high-lighting several cases that had significant conse-quences for women. Rachel Biscardi discussed her brief in Pierce v. Pierce, 455 Mass. 286 (2009), in which the SJC determined that voluntary retirement by one divorced spouse did not terminate the other spouse’s entitlement to alimony absent a change in circumstances of the parties. Eileen Fava and Doro-thy Bourassa spoke about the brief they authored in Beacon Residential Management, L.P. v. R.P., 477 Mass. 749 (2017), arguing that a federal law pro-tecting domestic violence victims from eviction in public housing extended to those not on the lease, including a mother who sought to be added to the lease and her children. Elizabeth Bruise spoke about Mary Moe v. Secretary of Administration & Finance, 382 Mass. 629 (1981), a seminal reproductive rights decision compelling Massachusetts Medicaid to cov-er abortion services for low-income women, and Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), requiring protections against workplace sexual har-assment. Finally, Afton Templin discussed Common-wealth v. Finase, 435 Mass. 310 (2001), in which the SJC held that a violation of a “stay away” order in a 209A abuse prevention order can be prosecuted as a violation of a “no contact” order. What this event demonstrated is that the most prac-tical parts of our work relate to the issues about which we are most passionate. The WBA is proud of its rich history of speaking out in cases that have an impact on the rights of women and families in the Commonwealth. There are many opportunities for members to get involved, whether they are seasoned brief-writers or eager to participate and learn a new skill. To find out more about the committee, contact Amicus Committee Chair Elizabeth Brusie at ebrusie@clsacc.org.

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Moakley Courthouse, Boston On June 14, 2018, the WBA held a litigation conference at the federal courthouse in Boston that featured a diverse and dynamic slate of panelists discussing both improvements and setbacks in the law and legal issues affecting women, and the ways in which women today are effecting change in the legal profession and be-yond. After WBA President Meredith Ainbinder welcomed conference participants, Judge Nancy Gertner (ret.), former United States District Judge for the District of Massachusetts, opened the conference with keynote remarks. Sharing personal stories from her years as a practicing attorney and judge, Judge Gertner remarked that while movements such as #MeToo have helped women to feel more empowered about reporting cer-tain kinds of workplace behavior, stereotypes about women continue to be institutionalized. She explained how even the words used to refer to women in judicial decisions can normalize discriminatory conduct. She stressed the importance of systematic improvements in all fields and meaningful training on workplace be-havior in order for real change to occur. The first panel featured trailblazers in the fields of LGBTQ rights and family law: Mary Bonauto, Civil Rights Project Director for GLAD, Jennifer Levi, Transgender Rights Project Director for GLAD, and Joyce Kauffman, of Kauffman Law & Mediation. Attor-ney Bonauto, one of the attorneys who successfully argued before the Supreme Court in Obergefell v. Hodges, which recognized the fundamental right to marry for same-sex couples, spoke about the many looming legal challenges to mar-riage equality. She also provided her opinion on the recent Master-piece Cakeshop decision, which she noted actually affirmed the general validity of anti-discrimination laws and acknowledged stigma as a real harm to persons who experience

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discrimination. Attorney Kauffman spoke about current trends in parentage, divorce, and custody cases, and explained how the Goodridge and Windsor decisions were instrumental in providing certainty regarding the financial and parental rights of same sex couples. Attorney Levi spoke about recent Trump administration reversals of progressive transgender policies such as the transgender ban in the military, and the upcoming Massachusetts ballot question that will ask voters whether to preserve the law banning discrimina-tion based on gender identity in public places. The second panel, titled “Women Leading Big Law,” featured a panel of attorneys who discussed the rewards and challenges for women in big firm positions. Attorneys Lindsay M. Burke, of Kenny & Sams, P.C., Jennifer Furey, of Goulston & Storrs, Marc J. Goldstein, of Beveridge & Diamond, P.C., Susan Seibert, of Jones Day, and Gwyn Williams, of Latham & Watkins, LLP stressed the need for women to be included on client pitch teams, and to be involved early on in the process when a firm passes institutional clients between attorneys. They also spoke about the differences in how men and women “sell themselves” to firm leadership, and how culturally, women find it more difficult to “toot their own horns.” They stressed the im-portance of women advocating for themselves in order to achieve advancement within the firm. This conference included a poignant session fea-turing a panel of advocates from the non-profit and sports worlds who shared how they use their work and their personal stories to spread their mes-sages of empowerment and to effect change. Attorney Kim Dougherty of Andrus Wagstaff, P.C. mod-erated the panel titled “Empowering Women to Effect Change: #MeToo &

Signs of Change: A 40 Year Perspective

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The afternoon sessions began with a panel moderated by Monica R. Shah, of Zalkind Dun-can & Bernstein, LLP, on the challenges facing women litigators. Panelists were Miriam Conrad, Federal Public Defender; Jennifer Sabatini, Director of Partnerships, Boston Col-lege Center for Work & Family; and S. Elaine McChesney, Morgan Lewis & Bockius LLP. They shared personal strategies for success in very different work environments, dis-cussed the importance of shared responsibilities at home, and had useful historical per-spectives of the perceptions of women attorneys balancing work and family. One theme that certainly emerged was that supervising attorneys have a huge impact in setting the

tone for their colleagues and ensuring a culture that promotes excellent work from a diverse group of attorneys.

The final panel, titled “How Judges and Others Can Increase Women’s Court-room Participation” and moderated by Rebecca G. Pontikes of Pontikes Law, LLC, featured Judge Shannon Frison and Judge William Ritter, associate justices of the Massachusetts Superior Court, and panelist Jessica Hedges of Hedges & Tumposky, LLP and Chair of the Criminal Justice Act Board. They discussed how judges can take an active role in ensuring that women litigators obtain the courtroom experience necessary to advance within their firms and organiza-tions and to qualify for other positions including judgeships. This panel drove home the importance of support for women attorneys in the highest levels of the judicial system.

Pamela Berman of Robins Kaplan LLP provided closing remarks. The WBA contin-ues to be grateful to Pam for her leadership in the organization over many years, and her contributions as chair of this event.

#TimesUp,” which explored how those movements have affected women of different ages. Sunila Thomas George, Chairwoman of the Massachusetts Commission Against Discrimination, described how her agency has seen a 400% increase in sexual har-assment filings, which she opined might stem from women feeling more empowered to report incidents of abuse. She also described how MCAD has received an increase in re-quests for sexual harassment trainings, which has led to the legislature increasing funding for the agency. However, Lisa Goldblatt Grace, founder of the nonprofit My Life My Choice, which works with young girls ages 13-15 who have been victims of sexual exploita-tion and human trafficking, spoke about how the #MeToo movement hasn’t yet reached young victims of abuse, largely because they have become victims at such a young age.

Birdie Farrell, former Olympic speed skater and founder of New York Loves Kids, and Marcia Frederick, former Olympic gymnast, both child victims of sexual assault by older males in their fields, similarly explained that while the #MeToo movement is a positive step for women, child victims still feel they can’t speak out. They stressed the importance of laws that encourage reaching out to child victims, referencing as an example the Safe Sport Act, a newly enacted law that mandates certain reporting requirements for adults who suspect abuse of child athletes.

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WBA Summer Associate, Intern and Law Clerk Reception

On Tuesday, July 10, 2018, the WBA held its annual Summer Associate, Intern and Law Clerk reception. The event, generously hosted by WBA firm member Duane Morris LLP, was a chance for summer associates, in-terns and law clerks to become acquainted with one another in a more informal setting and to learn about the WBA and the support and networking opportunities it provides to new attorneys. Duane Morris Partner and former WBA Vice President Bronwyn Roberts welcomed the group and talked about her fondness for the event. WBA President Meredith Ainbinder welcomed attendees, noting that she first attended this event as a sum-mer associate herself. She shared some advice with the law students, encouraging them to believe in their abilities. She then introduced Boston City Council President Andrea Campbell, who was an engaging, riveting, and heartwarming speaker. She shared with the group her personal journey into law as a profession and with-in different areas of law. She talked about the impact of her family and the strength she drew from the posi-tive relationships and networks in the local community. Without question, City Council President Campbell motivated and inspired attendees to forge a path that was true to their talents, abilities, and passions. She embodies exactly what the WBA hopes to present to women lawyers in our community: leadership without compromise. The WBA was honored to have her speak at this event and looks forward to seeing these very law students among its membership for many years to come!

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The WBA Thanks Former WBA Executive Director Pattye Comfort for her Years of Service

The WBA wishes to warmly thank Patricia (“Pattye”) Comfort for her service as Executive Director of the WBA from 2011 until this spring. Pattye served under six different WBA presidents and facilitated excellent programming dur-ing her tenure, including a 2011 screening of the film Misrepresentation, which chronicled the portrayal of women in the media, last year’s Women’s Advocacy Summit and last year’s Women Leading Cases in Civil Trials event at the Federal Courthouse.

Pattye was instrumental in the WBA’s participation in the Rikleen Institute for Strategic Leadership’s workplace be-havior study, which surveyed lawyers in Massachusetts law firms about sexual harassment. Results of that survey were published in Lawyers Weekly and on September 13, 2018 the WBA held a complimentary event with the sur-vey author Lauren Stiller Rikleen, entitled “Walking the Walk: A Candid Discussion of the WBA’s Report on Work-place Conduct.”

One thing Pattye loves about the WBA is that instead of simply complaining about the state of affairs in the world, the WBA is an organization that identifies problems and works to find solutions. And, that might include writing a law ourselves! Pattye plans to take some time off, but will remain a WBA member and hopes to participate in a WBA committee.

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WBR CO-EDITORS IN CHIEF

Kate Isley is an Assistant Attorney General in the trial

division of the Massachusetts Attorney General’s Office. Kate worked in private practice for nine years at two law firms and focused her practice on civil litiga-tion. Kate is on the Board of the Women’s Bar Associa-tion, s Co-chair of the Communication Committee and is active on the WBA’s Legislative Policy Committee. She can be reached at kate.isley@gmail.com.

WBA Officers

President

Meredith Ainbinder

President-Elect

Jennifer Saumbermann

Vice President, Operations

Sandy Lundy

Vice President, Membership

& Statewide Outreach

Nicole Forbes

Treasurer

Kristy Lavigne

Secretary

Krina Patel

Michelle Liu Baillie Kristin Shirahama

Margaret Caulfield Victoria Spetter Nancy Cremins Brianna Sullivan

Kim Donlon Raquel Webster Kimberly Dougherty Sarah Gagan Laura Gal Heather Gamache Kate Isley Gwen Nolan King Jody Newman Patricia Rich Camala Richardson Jamie Sabino

Board of Directors WBA Staff

Margaret Talmers, Executive

Director

Rachel Biscardi, Deputy Director Lara Tennyson, Membership &

Programs Manager

Elizabeth Yows-Johnson,

Administrative Assistant

Special Thanks to

Bridget Schulz

Communications Committee

Carolyn Alenci Malwina Burzec Safira Castro Ellen Curran Kimberly Donlon Denise Donovan Jill Valdes Horwood Kathleen Kearney-Berney Ellen Kief Jessica Mahon Scoles Kimberly Mason Mara O’Malley Brenda McNally Krina Patel Alexandra Pichette Brianna Sullivan

Cathy Lizotte is a Co-Chair of the WBA’s

Communications Committee. She is a Senior Assistant Corporation Counsel in the City of Boston’s Law Department, where she advises city officials on a wide range of matters including legislation, election law, land use, and the sharing economy. She can be reached at cath2007@gmail.com.