BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

We often help facilitate the collection of comments on various proposed amendments to court rules and orders from our Steering Committees, who can weigh in with their specific practice area expertise and experiences.  As part of this process, we were pleased to recently submit comments on behalf of the Ethics Committee and the Family Law Section Steering Committee on proposed amendments and a new protocol.

Proposed Amendments to Supreme Judicial Court Rule 3:12

In September, the Ethics Committee discussed these proposed changes to the Code of Professional Responsibility for the Clerks of the Courts. The Rule governs the norms of conduct and practice for persons serving as Clerk-Magistrates, and the amendments were drafted in light of recent changes to the Code of Judicial Conduct. The Supreme Judicial Court formed a working group to consider whether similar changes should be made to the Code governing clerks, and the amendments are based on the working group’s recommendation to revise the provisions of the Clerks’ Code that are more restrictive than those in the Code of Judicial Conduct.

The Ethics Committee comments began by noting that, overall, the proposed changes were reasonable.  Members, however, did note a few ambiguities that could be worth clarifying in the final version of the rule. For example, the Committee commended the addition of language providing that  “a Clerk Magistrate may make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard,”  but wondered why this addition was “may” instead of “shall” and noted that the meaning of “reasonable efforts” was vague and open to diverse interpretations.  In addition, Committee Members felt aspects of Canon5(f) which explains when a Clerk Magistrate can accept free or discounted legal services, were a bit confusing, and that  the provision as a whole could benefit from further explanation and clear language.

Proposed Uniform Practice XXXV Change of Name Actions

Last month, the Family Law Section Steering Committee offered comments on Proposed Uniform Practice XXXV for Change of Name Actions in the Probate and Family Court. As provided in the solicitation, “the uniform practice was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults.”

Members of the Steering Committee first noted the challenges that often accompany change of name actions and commended the Probate and Family Court for offering guidance and uniformity in this process by drafting the proposed practice. Overall, members felt the proposal offered much-needed clarity and expressed optimism that it would benefit practitioners and petitioners pursuing change of name actions.

Some members, however, did feel there were a few outstanding challenges related to change of name actions that could perhaps be improved by inclusion in the final Uniform Practice. For example, one member felt the proposal could help to resolve the confusion that often arises when an individual who has been married multiple times attempts to resume a prior name that is not the name of the most recent former spouse, as currently individuals are sometimes forced to  choose between that name and the name of the current spouse. Another member felt the proposal could specifically provide clarity when an individual seeks to change their entire name (and gender makers) simultaneously with a divorce proceeding. Finally, a member noted that the proposed Uniform Practice could be more clear as to where an action should lie when a child resides in one county and the parent filing the petition on behalf of the child resides in another county.

We look forward to seeing the final versions of these proposals and whether any of the issues addressed by our members are reflected in the final iterations. A special thanks goes out to the Ethics Committee and the Family Law Section Steering Committee for their thoughtful analysis, and to co-chair of the Family Law Section, Lisa Wilson of Wilson Marino & Bonnevie, and co-chair of the Ethics Committee, Paul Tremblay of Boston College Law School, for their excellent report on the  comments to the BBA Executive Committee.

Get Involved

Of course, these requests for comment are open to the public, and we encourage our members to submit their own comments when they have particular insights or concerns.  You can stay up to date on both the notices inviting comment and rule changes by visiting this page. If you have any questions about the comment process, please contact  adaniel@bostonbar.org.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association