Assistant Clerk owns office building through realty trust and two lawyers are tenants; buys and sells property

September 12, 2013

Opinion 2013-5

Dear Assistant Clerk-Magistrate:      

In your letter dated July 13, 2013, you state that you have recently been appointed to the position of Assistant Clerk-Magistrate in the District Court Department of the Trial Court. You have requested an advisory opinion from this Committee with respect to the following two questions.  First, you state that you own, through a realty trust, an office building and that three of the tenants are attorneys who practice in the court you will work in. You ask what, if any, restrictions apply to your handling of cases in which they represent a party. You indicate that you assume that you will not be able to handle adjudicatory matters, but ask whether you could act as a session clerk and make docket entries in their cases.

Second you state that you are involved in the business of purchasing real estate, hiring subcontractors to remodel it and selling it for a profit and ask whether you can continue to engage in this business.

As an initial matter, the Committee directs your attention to the requirements of Canons 3 and 5(C)(1). Canon 3, Performance of Duties, requires that a Clerk-Magistrate "devote the entire time during normal court hours to the duties of his or her office."  Canon 5 (C) (1) states in part:  "A Clerk-Magistrate shall not conduct outside business activities in the courthouse at any time nor shall a Clerk-Magistrate conduct any outside business activities anywhere during normal court hours." The following provisions of Canons 4 and 5 are also relevant to your inquiry:

Canon 4(C) "Business Activities.  A Clerk -Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office.  A Clerk-Magistrate shall not use the influence of his office to promote his or her business interests or those of others."

Canon 5. "Outside Activities. A Clerk‑Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties:

(A) Personal Conduct. A Clerk‑Magistrate 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...            

(C) Financial Activities.

(1) . . . A Clerk‑Magistrate shall refrain from financial and business dealings that tend to reflect adversely on the Clerk‑Magistrate's impartiality, interfere with the proper performance of the position of Clerk‑Magistrate, or involve the Clerk‑Magistrate in transactions with lawyers or other persons likely to come before the court in which the Clerk‑Magistrate is serving."

The Committee notes that there is a danger that extensive involvement in outside businesses will violate Canons 4 and 5 in that it will inevitably create the appearance that the Clerk-Magistrate is engaging in outside business activities during normal court hours, detract from the dignity of the office and/or appear to interfere with his performance of his official duties. While we are unable to predict what circumstances might arise regarding your involvement in the real estate business as a landlord and/or as a developer, we caution you that strict compliance with these Canons, as well as with Canon 4(E) which addresses disqualification, is required.

In addition, with respect to the first question relating to the attorneys who are current tenants in a building you own through a real estate trust, the Committee considered a somewhat analogous situation in Opinion 91-6 . There, a Clerk-Magistrate inquired whether he would be in violation of Canon 4C if he were to rent a summer home he owned to attorneys who might appear in his court. The Committee opined that renting his summer home to attorneys who appeared regularly in his court would violate Canon 4C and Canon 5C, as it would tend to reflect adversely on his impartiality. The Committee noted that Canon 5(C) specifically prohibits financial transactions by a Clerk-Magistrate with lawyers or other persons likely to come before the Court in which the Clerk-Magistrate is serving.

The situation you posit is arguably different in that the attorneys are current tenants who may have leases creating legal obligations on your part and, even if they do not have leases, termination of the tenancies may cause a hardship to them. It is the Committee's opinion that you are required to recuse yourself from any adjudicatory hearings in which one of the attorney tenants represents a party. Further, while you may act as a  session clerk and make docketing entries in cases in which they appear, you should disclose the relationship to all parties.  In all of your official duties involving contact with these attorneys, you must comply with Canon 4E which requires that you disqualify yourself if your impartiality might reasonably be questioned. Finally, it is the Committee's opinion that you may not rent office space to attorneys who regularly practice in your court who are not current tenants and that you should attempt to separate yourself from transactions involving the current attorney tenants by using a real estate broker or property manager to handle issues relating to their tenancies.

Although it is a close question the Committee also believes that since you cannot rent office space to attorneys who regularly practice in your court, you cannot renew the leases of current tenants who are attorneys who regularly practice in your court. While it might be argued that a mere renewal at the same rent does not constitute "financial or business dealings" within the meaning of Canon 5(C)(1), the Committee believes that, since commercial rents go up and down, it does. Further, to the extent that current attorney tenants who regularly practice in your court are tenants at will, it is the view of the Committee that you may not increase rent or otherwise materially change the terms of their tenancy.