Courthouse News

Golf at Plymouth Country Club.

Please join us on May 8, 2017 for the 16th Annual PCBA Golf Tournament.  Bring colleagues, clients or friends.  Tee up for a great time at the Plymouth Country Club.  To learn more about the event, visit our events page.  To register to play clink the link below.

2017 PCBA GOLF TOURNAMENT REGISTRATION FORM

 

Update on new process for Category E and F GAL lists

Click on this link for the memorandum regarding an update on the new process for Category E and F lists for guardian ad litems:

update-on-new-process-for-category-e-and-f-gal-list.

Mass.gov/courts website updates

Please be advised that the Probate & Family Court updated sections of the Judicial Branch website on mass.gov/courts.

Content areas with recent updates:

  • Public Remote Access to more case types available as a result of the new Public Access Trial Court Uniform Rules on Court Records effective November 1, 2016:

https://www.masscourts.org

http://www.mass.gov/courts/case-legal-res/rules-of-court/trial-court/tc-rule-14-records/
 http://www.mass.gov/courts/case-legal-res/rules-of-court/sjc/sjc310.html

  • New Answer and Counter Claim forms in Domestic Relation Cases:

http://www.mass.gov/courts/forms/pfc/pfc-forms-gen.html#4 

  • Probate and Family Court Judicial Calendars

http://www.mass.gov/courts/court-info/trial-court/pfc/pfc-cal-gen.html

  • Link to all Court Service Centers Locations

http://www.mass.gov/courts/court-info/court-management/plan-initiatives/court-service-centers.html

Amendments to Supreme Judicial Court Rule 3:10: Assignment of Counsel effective November 1, 2016

BROCKTON DISTRICT COURT CONCILIATION PROGRAM

Brockton District Court will begin to distribute the attached Conciliation documents at case management conferences and pretrial conferences in November:

brockton-district-court-summary-of-civil-conciliation-program

brockton-district-court-notice-of-final-ptc-civil-conciliation-program-1

notice-of-jury-trial-documents-civil-concilation-program

VIDEO-CONFERENCES FOR CRIMINAL CASES TO BEGIN IN BROCKTON

Brockton District Court will begin video-conferencing for criminal cases on Friday, September 9th, 2016 at 11:00 a.m.. Video conferences will take place in Courtroom 10. There is a dedicated phone line in the conference room outside Courtroom 10 for confidential client communications.

On September 9th, 2016, we will be addressing defendants requests for speedy trials.

Beginning October 2016 the following cases will presumptively be scheduled for pretrial by video-conference:

Speedy trial requests first appearance date and all other dates unless there is a request for an appearance

Probable cause hearings (first date)

Custody pre-trials (first date) unless there is a request 48 hours prior for an appearance. The mittimus will be amended at arraignment to reflect video conference.

Discovery motions and compliance dates will be presumptively video conference dates unless there is a request 48 hours prior for an appearance of defendants

At this time we are scheduling Video conferences for Fridays at 11:00 a.m. and, if needed, Wednesdays at 11:00 a.m.. These dates may need to change subject to both the needs of the Court and the jails. The following dates have been set aside as video conference dates:

September 9th

September 23rd

October 5th

October 13th

October 21st

October 26th; and

October 28th.

CERTIFICATION TRAINING BY CPCS MENTAL HEALTH LITIGATION DIVISION

The CPCS Mental Health Litigation Division will be conducting a certification training for attorneys wishing to be certified to represent persons in Probate and Family Court guardianship and other probate matters for which MHLD attorneys are appointed.

The link below is to the training announcement which contains a link to the application form.

https://www.publiccounsel.net/mh/trial-certification-announcement/

The dates of this training are November 7-9 and 17 & 18, 2016.  The application is due by September 15, 2016.

THE SECOND EDITION OF THE MUPC ESTATE ADMINISTRATION PROCEDURAL GUIDE NOW AVAILABLE

The Probate and Family Court and its Massachusetts Uniform Probate Code (“MUPC”) Procedures Committee today announced the release of the second edition of the MUPC Estate Administration Procedural Guide: A Guide to Estate Administration Practices & Procedures in the Probate and Family Court. The second edition reflects developments in procedure since the first edition was released in 2012. Several changes are due to legislative amendments, while others are additions or clarifications. The Guide is available without charge on the court’s website here, where it can be searched and downloaded.

“The second edition of the MUPC Estate Administration Procedural Guide is the result of the hard work of dedicated Probate and Family Court judges, staff, and practitioners. During the course of this work, the MUPC Procedures Committee devoted countless hours in reviewing the first edition and suggesting recommendations for improvement. These recommendations were analyzed, vetted, and often analyzed again to ensure consistent application”, Probate and Family Court Chief Justice, Angela M. Ordonez, said. “I am grateful for the dedication of those involved and their determination to produce an updated manual that will benefit the staff and judges of the Probate and Family Court, estate practitioners and members of the public.”

In 2011, the Probate and Family Court established the MUPC Procedures Committee to develop practices and procedures necessary to implement the estate sections of the MUPC, G. L. c. 190B. Members of the Committee are: Hon. Elaine M. Moriarty, Hon. Anthony R. Nesi, Hon. Lisa A. Roberts, and Attorney Evelyn J. Patsos of the Probate and Family Court, Thomas P. Jalkut of Nutter, McClennen & Fish, LLP, and Christopher G. Mehne of Bowditch & Dewey, LLP.


MESSAGE FROM CHIEF ORDOÑEZ

To All PCBA Members, Friends, and Colleagues:

As you may be aware, Chief Justice Ordoñez meets with the Bar Liaisons at least twice per year.  As the bar liaison for Plymouth County, I attended the recent meeting May 19, 2016 .  At that meeting Chief Ordoñez presented several areas of focus, including the following:

  1. The last review of the Child Support Guidelines was completed August 1, 2013.  These guidelines are required to be reviewed every four (4)) years.  The Child Support Guidelines Task Force which is seeking public comment and suggestions, whether new language should be proposed, and the reasons for such changes.  There are several public forums where attendees may make brief oral statements.  The public forums will be on various dates throughout June 2016 in Boston, Worcester, Lawrence, Springfield, and Plymouth.  Please note that there will be a public forum/discussion in Plymouth, June 23, 2016 from 4:00 PM to 6:00 PM at the Plymouth Courthouse at 52 Obery Street, Plymouth.  Note that the task force welcomes your input at any forum or though written comments submitted to childsupport@jud.state.ma.us.   Please see the Notice regarding the Child Support Task Force for additional information. Attachment A.
  1. There have been significant changes regarding the appointment of guardians ad litem under Category E and F, investigators and evaluators.  the Administrative Office of the Probate and Family Court, along with the Hon. Randy J. Kaplan, have begun to revamp the process for appointment of guardians ad litem, under Category E and F. One of the most significant changes is the requirement that all GALs have Domestic Violence training to be on the lists. There will likely be some significant changes as to the names on either list, as GALs who are interested in being on said lists, must submit writing samples and interview with Chief Ordonez’ office. According to the Chief, only a portion of the recent candidates were invited to move forward with the application process.  Members of the legal community are invited to submit comments about their experiences with guardians ad litem who have been appointed by the court.  Your comments may be submitted to  GALcomments@jud.state.ma.us.  NB:  All trial court personnel, about 6,500 individuals, will also be required to take domestic violence training. Attachment B.
  1. The Massachusetts Trial Court has worked with CourtView Justice Solutions to provide real-time notifications of docketing in your court cases and updates to your court schedules through the CV@Go notification service.  There is a $300.00 per annum fee for the subscription and it received two thumbs up from bar liaisons that trialed the software.  If you would like more detailed information, please see Attachment C. NB:  Note that this is different from the Public Access to docket sheets in the Probate & Family Court, Land Court, Superior Court.  If you have not investigated and/or used this valuable resource, you are encouraged to do so.
  1. Chief Justice Ordoñez reviewed Standing Order 2-16 which mandates divorcing parties with minor children must attend and participate in an approved Parent Education Program.  The court finds the best interests of minor children would be well served by educating their parents about children’s emotional needs and the effects of divorce on child behavior and development.  Attachment D.
  1. ARC program.  The Chief discussed the ARC program and the need for guidelines and requirements, as there has been disagreement as to ages of the children and training for the RC attorneys.  The court seeks to establish uniformity among the attorneys, and also to insure that all attorneys have training in Early Childhood Development, etc. Robin Deutch, well known in the Probate & Family Court, is in the process of developing a video and training for attorneys.

Please feel free to forward this to other members of the legal community who may be interested in these updates. Additional information is available at the court’s website, mass.gov/courts.

Bar Liaison Meeting with Chief Justice Angela Ordeñez

Susan C. Ryan, Esq.
Law Office of Susan Castleton Ryan, P.C.
676 Bedford Street
Abington, MA 02351
(781) 982-8850
Fax:  (781) 982-8872


MASSACHUSETTS RULES OF CIVIL PROCEDURE
RULE 26. GENERAL PROVISIONS
GOVERNING DISCOVERY
Reporter’s Notes–2016

At the request of the Rules Committee of the Supreme Judicial Court, the Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure (“Standing Advisory Committee”) considered possible changes to the Massachusetts discovery rules that were based on amendments to the federal discovery rules. The proposed amendments to the Massachusetts discovery rules were intended to address the burdens of discovery that have been the subject of significant debate across the country over the past few years.

There were three proposed changes involving the Massachusetts discovery rules, all taken from amendments to the federal discovery rules.

The first proposed change to Rule 26(b) would have involved the scope of discovery by deleting the language that discovery must be “relevant to the subject matter involved” in the action. The proposal would have added in place of the deleted language that discovery must be relevant to a party’s claim or defense. This language was drawn from a 2000 amendment to Rule 26 of the Federal Rules of Civil Procedure refining the scope of discovery.

The second proposed change to Rule 26(b) would have adopted the principle of proportionality for discovery requests–i.e., discovery should be “proportional to the needs of the case.” This proposed amendment would have adopted the principle of proportionality as set forth in amendments to the Federal Rules of Civil Procedure that were effective in 2015. The proposed rule listed the factors that were to be taken into account in determining whether a discovery request was proportional to the needs of a case: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The third proposed change would have deleted the language in Rule 26(b)(1) that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” In its place, the proposal would have added language that information “need not be admissible in evidence to be discoverable.”

The Standing Advisory Committee reviewed the many comments submitted by both lawyers and judges after the proposal was published for public comment and voted not to recommend to the Supreme Judicial Court adoption of the three changes to the discovery rules. The comments reflected significant opposition to the proposed changes and described them as unnecessary and inadvisable at the present time. The principal objection to the amendments by the Standing Advisory Committee was based on the perception by many Committee members of drawbacks and unintended consequences of imposing the federal changes on the Massachusetts trial courts, as well as the newness of the federal changes. Most Committee members were in favor of a “wait and see” approach that would allow review of how the federal amendments affect litigants and civil litigation prior to considering whether similar amendments should be adopted in Massachusetts.

The Standing Advisory Committee also prepared draft language for consideration by the Supreme Judicial Court that alluded to proportionality in discovery, not in the context of the scope of discovery, but in the context of a court’s decision to grant a protective order involving discovery under Rule 26(c). The Standing Advisory Committee referred to this as “compromise” language in the event that the Supreme Judicial Court did not accept the Standing Advisory Committee’s recommendation not to change the Massachusetts discovery rules, at least until there is sufficient experience under the federal amendments. It is this compromise language that the Supreme Judicial Court adopted in 2016.

The amendment to the protective order language of Rule 26(c) lists factors similar tothose that are relevant to a court’s decision to limit the discovery of electronically stored information under Rule 26(f)(4)(E). These factors are:

(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(2) whether the discovery sought is unreasonably cumulative or duplicative; and
(3) whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.

Under Rule 26(f)(4)(E)(iii), a relevant factor in limiting electronic discovery is “whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought.” This factor has been omitted from the listing of factors in the 2016 amendment to Rule 26(c).

The addition of these factors to Rule 26(c) should not result in any significant change to Massachusetts practice. The amendment confirms the existing authority of a trial judge in determining whether to grant a protective order.


COMMONWEALTH OF MASSACHUSETTS

At the Supreme Judicial Court holding at Boston within and for said Commonwealth on the thirty first day of May, in the year two thousand and sixteen:

     present,

Chief Justice

HON. RALPH D. GANTS

Justices
HON. FRANCIS X. SPINA
HON. ROBERT J. CORDY
HON. MARGOT BOTSFORD
HON. FERNANDE R.V. DUFFLY
HON. BARBARA A. LENK

ORDERED: That the Massachusetts Rules of Civil Procedure adopted by order dated July 13, 1973, as amended, to take effect on July 1, 1974, are hereby amended as follows:

Rule 26     By inserting at the end of the first paragraph of Rule 26(c) the following new paragraph: Factors bearing on the decision whether discovery imposes an undue burden or expense may include the following:
(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(2) whether the discovery sought is unreasonably cumulative or duplicative; and
(3) whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.

The amendments accomplished by this order shall take effect on July 1, 2016.

ORDERED:

Chief Justice
HON. RALPH D. GANTS

Justices
HON. FRANCIS X. SPINA
HON. ROBERT J. CORDY
HON. MARGOT BOTSFORD
HON. FERNANDE R.V. DUFFLY
HON. BARBARA A. LENK
HON. GERALDINE S. HINES


CHILD SUPPORT GUIDELINES TASK FORCE SEEKS PUBLIC COMMENT

The 2016 – 2017 Massachusetts Trial Court Child Support Guidelines Task Force is seeking public comment and suggestions concerning the Massachusetts Child Support Guidelines.  Written comments may be submitted to the Task Force at e-mail address

childsupport@jud.state.ma.us

or by regular mail to:

Child Support Guidelines Task Force

Executive Office of the Trial Court

John Adams Courthouse

One Pemberton Square

Boston, MA 02108

——-

The Task Force will hold five public forums where written statements may be delivered and brief oral statements may be made.  Due to the expected turnout, testimony shall be limited to three minutes.  Oral testimony is not necessary because written and oral testimony will be considered equally.  the public forums will be held as follows:

Wednesday, June 15, 2016 – 4 to 6 p.m. at Fenton Judicial Center, 2 Appleton Street, Lawrence

Wednesday, June 22, 2016 – 4 to 6 p.m. at Springfield Hall of Justice, 50 State Street

Thursday, June 23, 2016 – 4 to 6 p.m. at Plymouth Courthouse, 52 Obery Street

The deadline for submission of all documents is JUNE 24, 2016


ARC PROGRAMS MANDATORY GUIDELINES

These mandatory guidelines apply to all ARC programs that wish to operate in the Probate and Family Court.

1. ARC programs are not to be utilized when there is a right to counsel for the child. Appointment of counsel when there is a right to counsel for the child shall be made using the CPCS list in MassCourts.

2. ARC programs may not restrict the use of an attorney for a child to a particular age group. A judge may appoint an attorney for a child of any age. The judge shall determine whether the child would benefit from having counsel.

3. The role of the attorney for the child is the same as the role of the attorney for any client – zealous representation. The attorney for the child shall comply with the Massachusetts Rules of Professional Conduct in the course of representation of the child. As such, the role of the attorney is to advocate for the child’s position. The appointment of a guardian ad litem is the appropriate appointment for determining what is in a child’s best interest.

4. When a client has diminished capacity, the attorney shall follow Rule 1.14 of the Massachusetts Rules of Professional Conduct.

Rule 1.14 provides:

(a) When a client’s ability to make adequately considered decisions in connection with a representation is diminished, whether because of minority,   mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action in connection with the representation, including consulting individuals or entities that have ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Comment 7 to Rule 1.14 provides:

If a client is unable to make an adequately considered decision regarding an issue, and if achieving the client’s expressed preferences would place the client at risk of a substantial harm, the attorney has four options. The attorney may:

i. advocate the client’s expressed preferences regarding the issue;
ii. advocate the client’s expressed preferences and request the appointment of a guardian ad litem or investigator to make an independent recommendation to the court;
iii. request the appointment of a guardian ad litem or next friend to direct counsel in the representation; or
iv. determine what the client’s preferences would be if he or she were able to make an adequately considered decision regarding the issue and represent the client in accordance with that determination.
In the circumstances described in clause (iv) above where the matter is before a tribunal and the client has expressed a preference, the lawyer will ordinarily inform the tribunal of the client’s expressed preferences. However, there are circumstances where options other than the option in clause (i) above will be impermissible under substantive law or otherwise inappropriate or unwarranted. Such circumstances arise in the representation of clients who are competent to stand trial in criminal, delinquency and youthful offender, civil commitment and similar matters.
Counsel should follow the client’s expressed preference if it does not pose a risk of substantial harm to the client, even if the lawyer reasonably determines that the client has not made an adequately considered decision in the matter.

5. ARC programs shall require trainings of all attorneys who would like to volunteer their services prior to submitting the name of an attorney to a judge. The trainings shall include information regarding the role of the attorney for the child, the application of Rule 1.14 of the Massachusetts Rules of Professional Conduct and a presentation relating to the interviewing of children and child development.

6. Once an attorney has agreed to represent a child through an ARC program, the attorney is entitled to access to all non-impounded pleadings and shall receive notice of all hearings. Access to impounded documents shall be determined by the judge. The attorney may participate in settlement discussions, call witnesses and cross examine witnesses. The attorney shall not be required or allowed to testify or prepare reports of any kind. ARC attorneys are required to submit pre-trial conference memoranda, status conference memoranda and/or trial memoranda.

7. If one attorney is appointed to represent multiple children in a family, the attorney shall withdraw, and shall be allowed to withdraw, if the attorney determines that a concurrent conflict of interest exists and the attorney does not reasonably believe that the attorney will be able to provide competent and diligent representation to each affected child-client.

8. All attorneys who volunteer to represent children through an ARC program are prohibited from accepting payment for their services and/or costs.


PARENT EDUCATION PROGRAM

STANDING ORDER 2-16 Parent Education Program Attendance
REPEAL of STANDING ORDER 4-08 Parent Education Program Attendance

In order to promote awareness of, and track and enforce attendance at, mandatory parent education programs, the Probate and Family Court is implementing new requirements, timeframes and forms. Changes reflected in Standing Order 2-16 include: (1) new required documentation of registration to encourage prompt enrollment; (2) clarification concerning the basis for waiving the mandatory attendance requirement, and highlighted alternatives to such waiver when appropriate; and (3) updated information concerning the delivery of parent education services via DVD or online program.

Standing Order 2-16 is effective May 1, 2016. The text of the Standing Order can be found at:
http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/1-16.html
The related forms will be available on May 1, 2016 at:
http://www.mass.gov/courts/forms/pfc/pfc-forms-gen.html#7

Standing Order 4-08 is repealed effective May 1, 2016.


New MUPC Estate Forms now available on line

The Probate and Family Court (“Court”) announces the availability of fillable versions of the following new and revised MUPC Estate forms. The forms and all instructions are now available on the Court’s website at
http://www.mass.gov/courts/forms/pfc/pfc-mupc-forms-generic.html.
Effective April 15, 2016, the Court will require the use of the new and revised forms, including in cases initiated before April 15, 2016. For example, if a case is filed prior to April 15, 2016 and is deficient in some manner (such as an erroneous listing of heirs at law), forms filed on or after April 15 must be submitted on the new forms in order to satisfy the deficiency. The Court will accept for filing any “pre April 15, 2016” forms for a two week grace period.
The new and revised forms are the first of a two part release of MUPC estate form changes to go into effect. The second release is anticipated to take place in May. The form changes are the result of a coordinated effort between the MUPC Procedures and Forms Committee. For any questions on the above, please contact Evelyn Patsos, Esq., at
evelyn.patsos@jud.state.ma.us.

Lawyer of the Day Program needs Volunteers

Please be advised that the Probate Court Lawyer for the Day Program, which accepts volunteer attorneys in the Brockton and Plymouth Probate Courts, is in need of new members, especially in Brockton Probate Court.  We schedule attorneys in Plymouth and Brockton on Monday – Friday.   Both courts are grateful for any assistance they receive, but there have been times, mostly in Brockton, when an attorney is unavailable and a day is left uncovered.  I have attached a “Volunteers Needed” notice and description of the Probate lawyer for the Day Program for those who are interested.

Probate Lawyer for the Day Program

VOLUNTEERS NEEDED-Probate Lawyer for the Day-pcba

Housing Court Lawer for the Day Program

VOLUNTEERS NEEDED-Housing Lawyer for the day-pcba