Newly appointed Assistant Clerk-Magistrate married to attorney with active practice in her jurisdiction. It is appropriate for her to exercise magisterial functions in matters involving spouse?
August 23, 2013
Dear Clerk :
In your email of May 31, 2013, you sought the Committee's views with respect to the following. You are the Clerk of the ______ Court. You recently appointed a new Assistant Clerk-Magistrate who is married to an attorney with an active law practice in locations within the jurisdiction of the ________ court. You state that while it is clear that the Assistant Clerk should refrain from exercising magisterial functions in matters involving her spouse, other situations present concerns. Specifically, you have inquired: 1) whether it is appropriate for the Assistant Clerk to be the session clerk making docket entries in matters brought before the court by her spouse; and 2) whether it is appropriate for the other Assistant Clerk-Magistrates in the office to hear matters involving the spouse and his law practice.
We view your request to the Committee as inquiring whether there are particular actions that you, as Clerk-Magistrate, should take to fulfill your duty under Canon 4 of the Code of Professional Responsibility for Clerks of the Courts (Code) to "perform the duties of Clerk-Magistrate impartially and ...[to] act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government."(1) Under Canon 3(B), your administrative responsibilities include the duty to "supervise subordinate personnel and arrange for their training."
As you indicated, under the Code, it would not be appropriate for the Assistant Clerk to exercise magisterial functions in matters involving her spouse. It is the Committee's view that it also would not be appropriate for her to exercise magisterial functions in matters involving other members of her spouse's firm. The Committee believes that the Assistant Clerk's economic interest in work from the firm where her spouse is employed could give rise to an appearance of impartiality, even if the Assistant Clerk were to disclose the relationship.
With respect to serving as session clerk, it is the view of the Committee that it would not be appropriate for the Assistant Clerk to be the session clerk in matters brought before the court by her spouse or her spouse's law firm. As the Committee has often stated, the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts. The Assistant Clerk's interests, economic and otherwise, in the work of her spouse's firm could give rise to an appearance of partiality were she to serve as session clerk in matters brought by her spouse or other members of the firm. It is the view of the Committee that disclosure by the Assistant Clerk would not be sufficient to remedy the appearance of partiality.
With respect to your inquiry regarding whether the other Assistant Clerks in the office may hear matters brought by the spouse and his law practice, it is the Committee's view that based on the information provided, the Code would not require the other Assistant Clerks to refrain from hearing these matters. In general, the Committee does not believe that the impartiality of Assistant Clerks reasonably would be questioned should they hear matters brought by the spouse of a colleague. Of course if certain Assistant Clerks themselves have a relationship with the spouse that would call their impartiality into question, they should consult and comply with the provisions of Canon 4(E) on Disqualification.
1 The Committee may provide advice only to Clerk-Magistrates, as defined in Canon 1 of the Code of Professional Responsibility for Clerks of the Courts, who personally request an opinion.