News from the Courts

Issue December 2011

SJC rejects calls for mandatory fee arbitration

A committee appointed by the Supreme Judicial Court has issued a report in opposition to client-initiated mandatory fee arbitration in Massachusetts. The SJC accepted the committee's recommendation that Rule 1.5 of the Rules of Professional Conduct be amended to require a written fee agreement before or within a reasonable amount of time after commencing representation.

Two Massachusetts Bar Association members, Past President Kathleen M. O'Donnell and Gavin Reardon, a member of the MBA's Executive Management Board, served on the committee.

Probate Court announces standing order for MUPC

As a result of the new Massachusetts Uniform Probate Code (MUPC), the Probate and Family Court announced the implementation of Standing Order 5-11.

The standing order was developed and recommended by the MUPC Implementation Committee, Estate Working Group, and addresses how the estate administration and trust provisions of the MUPC will apply to proceedings pending after Jan. 2, 2012, where a permanent decree has not entered or where a permanent decree has entered but other proceedings may be pending in 
the matter.

As a result of the standing order, a new form has been created. If a citation is issued by the court on a petition requesting the appointment of a fiduciary, prior to Jan. 2, 2012, and the return date is after Jan. 2, 2012, the citation must be accompanied by the new MUPC Supplemental Notice. The notice states important information about the changes in the obligations of a court-appointed fiduciary pursuant to the MUPC.

The supplemental notice must be served on all interested parties in accordance with the order of notice in the court-issued citation. The obligation to provide all interested parties with the notice rests solely with the petitioner. The petitioner shall be responsible for obtaining and completing the notice.

The notice form (MPC 591) and instructions may be obtained at each registry and accessed online.

More clerks' office hour reductions announced

Three district courts reduced their clerks' public office hours as of Nov. 14, following similar moves in 35 courts in September, to allow staff to focus on vital functions and reduce processing delays.

Clerks' offices in Concord, Marlborough and Salem District Courts are reducing public office hours for one or two hours, on two or more days each week. Also, Framingham/Natick District Court extended its current one hour of restricted access to four days a week, and Lowell District Court shifted its restricted hours from midday to the end of the day. Court officials have said the changes are temporary, but have not indicated how long they will be in effect.

During the specified hours, staff will be unavailable to answer general telephone inquiries or assist the public. Telephone messages and signage at each location will provide information about the adjusted hours and emergency access information. The judicial response system, which provides around-the-clock coverage for emergency situations, will be unaffected.

Court session scheduling is not affected by the changes, and access is available for emergency matters. Court officials noted that reductions in counter and telephone hours allows uninterrupted time for staff to prepare cases for court sessions and execute court orders, as well as complete filing, docketing, scanning and other case processing.

As a result of yearly reductions in funding, the Trial Court Dept. has lost 1,221 staff through a hiring freeze and attrition since 2007, a 16 percent reduction that has caused numerous delays.

Departmental chief justices have worked with local courts to develop plans to minimize public inconvenience and avoid adverse impact on court users. Courts have also used technology, cross-court staff sharing and centralizing some functions to help offset staffing shortages. Departments are monitoring the impact of the restricted hours to assess its effectiveness in improving operations.

SJC investigates acquittal rate 
claims in Globe Spotlight report

In response to a Spotlight Team investigation by The Boston Globe into acquittal rates in jury-waived trials for driving under the influence of drugs or alcohol, the Supreme Judicial Court has begun a confidential and independent preliminary inquiry.

The SJC appointed trial lawyer Jack Cinquegrana of Choate, Hall & Stewart to determine the acquittal rate of driving under the influence cases in Massachusetts and how it compares with the national average, as well as how the acquittal rate compares with other criminal cases in District Court and Boston Municipal Court.

Cinquegrana, a former assistant U.S. attorney for the District of Massachusetts, chief trial counsel in the Suffolk County District Attorney's Office and past president of the Boston Bar Association, has also been asked to explore whether the acquittal rates of certain judges in those two courts are substantially higher than the statistical average, and, if so, to identify the possible reasons for the disparity.

In a release, the SJC stressed that this is a fact-finding inquiry, not a disciplinary one. Once it is completed, the SJC will review the findings and decide if further action is necessary.

"As judges, we recognize the delicate nature of this preliminary inquiry. Our system depends on judges being able to decide a case fairly but independently, without fear or favor. A judge is obligated to find a criminal defendant not guilty if the government has not proved the case beyond a reasonable doubt; at the same time, a judge must find a defendant guilty where the crime has been proved beyond a reasonable doubt," the statement said.

"Public confidence in the judiciary depends on its belief in the integrity of the judicial process, judges and their decisions. To preserve the public's trust and confidence, the courts must be, and must appear to be, fair and impartial in all cases. We have asked Mr. Cinquegrana to conduct the preliminary inquiry in a manner that respects each of these principles."

The appointment was made after consultation with Chief Justice for Administration & Management Robert A. Mulligan, District Court Chief Justice Lynda M. Connolly and Boston Municipal Court Chief Justice Charles R. Johnson, who have been fully supportive, court officials said. The preliminary, fact-finding inquiry is underway.

The Massachusetts Judges Conference, a nonprofit organization representing more than 82 percent of sitting Massachusetts judges, also responded to the Globe report, noting that 76 percent of all drunk driving prosecutions result in convictions or admissions of guilt, which result in statutorily mandated punishments.

MJC President James G. Collins said in a release: "Each citizen who comes to court charged with a crime, whether tried before a judge or a jury, deserves to be treated as an individual and to have his or her guilt or innocence determined on the basis of the facts and the law, and not on the basis of anyone's scorecard about what percentage of the cases should be guilty versus not guilty."