Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Steering Committees, who offer insights from the viewpoint of a particular practice area. Last month, we submitted comments on behalf of the Ethics Committee and the Steering Committees of the Business and Commercial Litigation Section and Criminal Law Section on a proposed amendment to a Trial Court rule and a proposed District Court Standing Order.

Proposed Amendments to Trial Court Rule XIV

In October, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records. You may recall that in 2016, the BBA spent a great deal of time thinking about Trial Court Rule XIV and even established a working group on the matter that, along with various sections, submitted substantial comments on the then-proposed rule. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was only given provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected proposed revisions to this Section, and proposed a few key changes, namely:

• The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
• The addition of safeguards, specifically “Terms of Use,” that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees did not have much issue with the substance of the rule itself, and instead highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by noting that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that “[o]ne may not use the Attorney Portal to access information in a manner that risks the integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The Criminal Law Section Steering Committee also noted a point of ambiguity in the Terms, with some members thinking the provision that provides “you must not leave your computer or work area unsecured while you are logged into the Attorney Portal,” was somewhat unclear, difficult to enforce, and duplicative, since the terms already note that one is fully responsible for activity that occurs under one’s login credentials. The Steering Committee also raised a point about the Rule itself, which provides that the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.)

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the Rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the Terms, they thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). They proposed a definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. Finally, the committee members felt that the fourth bullet in the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials, even if not permitted (as it currently states “or persons you allow to use your login credentials”), as the prior bullet already states that one is fully responsible for all activity that occurs under one’s login credentials.

District Court Standing Order on Voir Dire Protocol

The Steering Committees of the Criminal Law Section also offered comments on the Proposed District Court Standing Order on Voir Dire Protocol, following an invitation to comment from the Chief Justice of the District Court Paul Dawley. As provided in the invitation to comment, the “new order establishes a standard procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.”

First, committee members commended the District Court for creating the standing order and expressed hope that it would encourage more attorneys to utilize voir dire in the court. Members also found the order to be overall reasonable and helpful, with one individual specifically noting that the explanation and details offered on what questioning is, and is not, appropriate, is especially useful for practitioners.

Committee members also, however, raised a few questions about certain aspects of the rule. For example, some were worried that the order was perhaps overly inflexible. Though the level of detail was noted as very helpful, some felt the requirements were somewhat too involved, and instead, a bit more flexibility should be built into the voir dire process, depending on the nature of the case and the requests of the parties. Some felt the order favored panel voir dire but noted there were instances where individual voir dire made more sense, highlighting the use of panel and individual voir dire in Superior Court that was working well.

In addition, some members also felt the requirement that all voir dire-related requests in criminal cases be filed not later than five business days before trial may not be reasonable in practice. These members noted that the reality of practice in the District Courts is that judges usually do not deal with any trial motions until the morning the case is called, because typically there will many cases called for trial each day. As a result, members felt there was no real likelihood that a judge would address the voir dire with the parties some days before a trial, so instead, simply requiring formal requests to be made by the date of trial would be more reasonable for both attorneys and judges. Some members felt adding a check-off indicating if the parties will be seeking attorney-conducted voir dire to the Pretrial Conference Form would be sufficient and more practical.

Finally, members of the Steering Committee expressed hope that the Boston Municipal Court Department would also soon be instituting rules for attorney-conducted voir dire, and that any such rules would parallel the District Court’s protocol in order to reduce confusion and ease the use of voir dire for attorneys.

A special thanks goes to Co-Chair of the Criminal Law Section Steering Committee, Dean Mazzone, of the Attorney General’s Office, for presenting these comments to the BBA Executive Committee last week! A usual, we’ll be sure to keep you posted when final versions of the proposed amendments to Trial Court Rule XIV and the Voir Dire Standing Order are promulgated.

SJC Approves Amendments to SJC Rule 3:07

Speaking of which, the SJC just approved amendments to the Mass Rules of Professional Conduct Rule 3.5 on post-verdict juror contact, which the Criminal Law Section Steering Committee offered comments on in April. Read more about the BBA’s work on the issue here.

The proposed amendments to Rule 3.5 were meant to conform the rule to the SJC’s 2016 decision in Commonwealth v. Moore, 474 Mass. 541 (2016). In that case, the court held that Mass. R. Prof. C. 3.5(C), adopted in 2015, effectively overruled the rule established by Commonwealth v. Fidler that required attorneys to seek leave of court prior to contacting jurors post-verdict, and to do so only under court supervision and direction. In Moore, the Court also held that common-law principles limiting post-verdict inquiry of jurors to matters relating to extraneous influences and prohibiting inquiry into the individual or collective thought processes of jurors, the reasons for their decision, or the substance of their deliberations, remain as continuing precedent, and that though any attorney is entitled to initiate contact with jurors on permissible subjects without seeking leave of the court, they must adhere to the notice requirements established by the court.

The amended rule now includes the provision that “a lawyer shall not…(c)communicate with a juror or prospective juror after discharge of the jury if:…(4) the communication is initiated without the notice required by law.” In addition to the addition of Rule 3.5(c)(4), the adopted amendment also replaces current comment 3 and adds a comment 3A and 3B. These comments offer more guidance as to when post-verdict juror contact is, and is not, allowed and outlines the specific notice requirements that must be followed when an attorney does wish to initiate contact on a permissible topic.

We are thankful to our members who take the time to review and respond to these comment opportunities and look forward to continuing to be active participants in the comment process in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association