Comments Update: SJC Adopts Final Versions of Court Rules

It’s been a busy rules season for the Courts and over the past few months they’ve issued final versions on a number of rules, including those related to electronic filing, client file retention, and credit card debt collection. You can see a list of recent rule changes and opportunities to comment here, and keep reading for a quick recap of those on which BBA Sections and Committees submitted comments.

Proposed Uniform Practice XXXV for Change of Name Action

In October 2017, the BBA submitted comments on behalf of the Family Law Section on the proposed practice, which was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults. The comments commended the court for offering guidance and consistency in this often-complex matter and pointed out a few ambiguities in the proposal. The final practice became effective in August 2018 and was responsive to one of the ambiguities raised by the Family Law Section, clarifying the ability of an applicant to return to their surname given at birth following a divorce proceeding, even if one has a prior spouse.

Proposed District Court Voir Dire Standing Order

In November 2017, the BBA submitted comments on behalf of the Criminal Law Section Steering Committee on the proposed Standing Order, which was meant to establish a procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity in voir dire to identify inappropriate bias. The final rule was promulgated in the Spring of 2018, and though it did not adopt any of the Section’s specific comments on the language, the later proposed BMC Standing Order was identical in substance to the District Court’s, which the comments did encourage.

Superior Court Rule 9A, Civil Motions, and Rule 9C, Settlement of Discovery Disputes

In February 2018, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on the proposed amendments, which were meant to simplify and reorganize the rules on civil motion and require the parties to confer before filing dispositive motions to narrow areas of disagreement. The comments submitted on behalf of the section were quite specific and detailed in nature, highlighting a few areas the Section felt could use some clarification, at least one of which appears to be addressed in the final rule, which becomes effective November 1, 2018.

Proposed Best Practices for Use by Prosecutors Making Presentments to the Grand Jury

In March 2018, the BBA submitted comments on behalf of the Ethics Committee and Criminal Law Section Steering Committee. The comments raised a number of technical questions, but in general many members agreed that any proposals which would encourage uniformity and consistency across a range of highly varied practices are welcome. In late June, the Committee on Grand Jury Proceedings submitted its final report to the Justices. The final report was responsive to a few points raised by the Committee, including revising one best practice to clarify that while the general best practice is to present all documents and evidence obtained through a grand jury subpoena to the grand jury, this is not so if “the presentation of such evidence would impair the integrity of the proceeding” (emphasis added).

MRCP Rules 8.1 and 55.1

In February 2017, the BBA submitted comments on behalf of the Bankruptcy Law Section on the Massachusetts Rules of Civil Procedure proposed new Rule 8.1 and Rule 55.1. These rules relate to actions for money damages against individuals arising from credit card debt and were drafted specifically to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Rule 8.1 requires plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1. The Bankruptcy Law Section was generally supportive of the rules and felt they would help address abuses that are common to the collection of credit card debts. Over the summer the SJC approved the amendments, and the final new rules will become effective on January 1, 2019.

New Rule 1.16A of the Massachusetts Rules of Professional Conduct

In April 2017, the BBA submitted comments on behalf of the Ethics Committee, the Criminal Law Section, the Family Law Section, and the Health Law Section on proposed new Rule 1.16A related to Client Files. The final rule, which became effective in September 2018, remains largely the same as the proposed version but is responsive to at least one comment submitted by the Ethics Committee.

Rule 1:25, Massachusetts Electronic Filing Rules

In May 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to the Interim E-Filing Rules. The comments submitted by the Section raised a few points of ambiguities in the proposed interim rules. One subsection of the rule was clarified in line with the comments suggestion. New Rule 1:25, Massachusetts Electronic Filing Rules, is largely the same as the interim rules proposed, and became effective September 2018, replacing the interim rules.

Appeals Court Standing Order Concerning Electronic Filing

In December 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section and the Civil Rights and Civil Liberties Section on the proposed order, which would expand and make e-filing mandatory for most civil and criminal matters, with exceptions for impounded cases and other circumstances like undue hardship or exigency. The Business and Commercial Litigation comments were quite specific, but not overly substantive in nature, while the Civil Rights and Civil Liberties comments praised the court for taking into account access-to-justice concerns when considering how to expand and require e-filing. The final order, which became effective in September 2018, was responsive to an ambiguity raised by the Business and Commercial Litigation section.

SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records

In June 2017, the BBA submitted comments on behalf of the Business and Commercial Litigation Section on SJC Rule 1.11, Rule Relative to the Disposal of Old Court Papers and Records. This comment also included a note from the Association, urging that the rule drafters keep in mind the importance of conserving the legal history of the Commonwealth, including those more recent records which may only be revealed to be historically important years in the future. A few of the concerns raised by the Section were addressed, at least in part, by the final rule, which becomes effective in October 2018.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association