Conflict with cases filed in Superior Court and cases that involve the city

January 26, 2007

Opinion 2007-1

Dear Clerk:

This letter is in response to your request dated December 21, 2006 for an advisory opinion. You have been elected to serve as the Clerk of the Courts for _______ County. For the past _______ years you have served as a _________ City Councilor, and you currently hold this position. You have informed us that there are currently thirteen [city] cases pending in ________ Superior Court. To your knowledge, you are not named as an individual party in any of these cases. In addition, you have served in an "of counsel" capacity for the ______ law firm of ____________.

From your letter the Committee understands that you have the following two areas of concern with respect to possible conflict with cases filed in the _________ Superior Court: first, cases in which the firm where you were of counsel has filed an appearance; and second, cases that involve the City of __________.

 It is clear from the Code of Professional Responsibility for Clerks of the Courts that you must end your association with the law firm. Canon 1 of the Code stresses that the purpose of the Code is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts." Canon 3 prohibits you from practicing law once you are sworn in as Clerk of the Courts. Specifically, it states: "A Clerk-Magistrate shall not engage in the practice of law."

As to cases that come before you in your official position in which [law firm members] have filed an appearance, you must be careful to guard against the appearance of partiality. The advice of this Committee as stated in Opinion 2006-5 controls your situation with the law firm. Certainly you may recuse yourself from all cases that involve _____________ . Alternatively, the Code does allow you to disclose on the record that you were formerly associated with the law firm. Canon 4 (5) states:

A Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate's impartiality might reasonably be questioned. A Clerk-Magistrate who would be so disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties, individually or through counsel, after consultation independent of the Clerk-Magistrate, agree in writing that the Clerk-Magistrate need not be disqualified, the Clerk-Magistrate may participate in the proceeding. The agreement, signed by all parties, shall be incorporated in the record of the proceeding.

We have noted in the past, however, that a Clerk should give careful consideration as to whether this waiver option is appropriate in all situations. The broad public interest in real and perceived impartiality may suggest that a waiver is not always sufficient.

The inquiry as to cases in which the City of ___________ is named as a party is much more complex. The Committee discussed at length the propriety of your holding both the position of Clerk of the Courts and City Councilor for __________ and we have concluded that it is problematic under the Code for you to serve in both capacities. It would be very difficult to serve in these dual roles since the city you serve as councilor is located within the jurisdiction of the court where you serve. Although with respect to political activity, Canon 6 distinguishes between an elected and an appointed Clerk Magistrate, the Code's provisions regarding impartiality and the appearance of impartiality apply to both elected and appointed Clerk Magistrates. See, Canon 1 of the Code which stresses that the purpose of the Code is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts" and Canon 4's requirement that a Clerk-Magistrate "should act in all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government". In addition, under Canon 5, a Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties and "should not engage in activities which might detract from the dignity of the office of Clerk-Magistrate or interfere with the performance of the duties of the office." These provisions are necessary to preserve public confidence in the judicial system. As frequently noted in our opinions, to ensure the integrity of the judicial system, it "must not only be beyond suspicion but must appear to be so". Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966).

The Committee has addressed the situation of holding dual positions in two opinions, Opinion 94-13 and Opinion 99-6 , which we advise you to review. In Opinion 99-6 , the Committee found that holding the position of City Councilor while serving as an Assistant Register of Probate would raise concerns of potential conflict and appearance of partiality. Much of what was said in that opinion is equally applicable to your situation.

In Opinion 99-6 , we informed the Assistant Register "it would be likely that your duties as councilor would at times involve you in transactions with lawyers or other persons likely to come before the Probate Court in contravention of Canon 5. Although we are not familiar with all the duties and obligations of a member of the City Council, we view the general legislative and political functions of such bodies as incompatible with Canon 4's requirement that a Clerk-Magistrate 'should act in all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government'... As a councilor, it can be expected that constituents will frequently contact you regarding various issues, and it is likely that some of these constituents will have business before the Probate Court or other Courts. Municipal decisions on personnel or funding can also be viewed by some as implicating your impartiality.

"We recognized the Assistant Register's good intentions to perform his duties professionally as City Councilor and First Assistant Register, as we recognize your good intentions. We noted however, "[T]he Canons are designed to operate prophylactically. The Rules do not await an actual impropriety nor do they depend upon recusal to solve conflicts where the situation is one which 'might reasonably create' them. A determination that they apply does not presume any lack of integrity by the Clerk."

We think the considerations noted in Opinion 99-6 are applicable to your situation. It seems quite probable that matters that you are involved with as a City Councilor will come before the _________ Superior Court. The thirteen current pending cases give credence to this. It is reasonable to expect that there will be additional cases filed in the future. It is likely that as City Councilor you would be involved with lawyers or other persons who come before the Superior Court. Also, it is likely that the City of __________ Police Department will regularly have a number of criminal matters before your court. Your position as Clerk of Courts would require you or your subordinates to regularly interact with ________ police officers appearing in court or before the Grand Jury. As we stated in Opinion 94-13 , "A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity." For these reasons, we have concluded that it is problematic for you to serve in both capacities.

This does leave for consideration how best to handle the pending thirteen cases or any other cases that involve the City of ___________. These thirteen cases, and future cases that may be filed with the City of ___________ as a party, raise complicated issues with respect to avoiding the appearance of partiality. The Committee has discussed whether recusal or disqualification is sufficient. Even though you are not a named party, it appears difficult to ensure the appearance of impartiality when communications about cases involving the City of ________ will be issued under your name as Clerk of Court, and the cases may relate to activity of the City Council while you were a member. We considered whether it would be advisable to delegate the administration of all such cases (present and future) to the First Assistant Clerk or another Assistant Clerk. Because the Assistant Clerks are subject to your supervision, such delegation may not cure the problem. The best way to ensure the appearance of impartiality may to be transfer the cases to another jurisdiction, an action clearly outside the scope of this Committee's authority. It may be that the judicial officers with authority to transfer cases and assign judges have a procedure to deal with cases that involve those who work at the Court. Thus, we suggest that you review this matter forthwith with the appropriate administrative justice for the County.

Finally, we remind you that this Committee is authorized to render opinions that interpret the Canons contained in the Clerks' Code of Professional Responsibility. You may have other duties based on the Massachusetts Constitution, statutes, rules or regulations. You may also wish to consult with the State Ethics Commission and other authorities as to any such duties and obligations.