Handling cases involved former clients

November 25, 2013

Opinion 2013-7

This letter is in response to your email request dated October 23, 2013 seeking an advisory opinion on three matters pertaining to your recent appointment as the First Assistant Clerk of the ----------- County Superior Court. You state that prior to taking this position, you were a private attorney representing defendants in the District Court.You ask if you are disqualified from calling a case or handling the file of a former client on charges unrelated to your prior representation. You further state, if this is deemed a conflict, can it be rectified through disclosure? We direct your attention to the Code of Professional Responsibility for Clerks of Court, Canon 4 (E) relative to Disqualification which states in part that "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." It is the opinion of this Committee that with the agreement of the parties and after disclosure of your prior representation is made on the record, you may perform scheduling and docketing duties before a judge in cases involving former clients that are unrelated to your work for the client.

In the second issue of concern raised, you state that your father practices as a criminal defense attorney in the county in which you are appointed and in fact has a limited practice in ---------- County Superior Court.You ask if you are disqualified from working in a session handling his cases or making docket entries on those matters, and if deemed a conflict, can it be rectified through disclosure. Canon 4 of the Code: Impartiality and Disqualification states: "A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government." It is the opinion of this Committee that the facts raised in your request regarding your father's limited practice in your court would be governed by its decision in Opinion 13-2 . In that opinion, the Committee found that a newly appointed Assistant Clerk was disqualified from handling any cases involving her spouse, who had a practice in locations within the jurisdiction of the court where the assistant clerk worked, and any member of the spouse's law firm. For the same reasons, it is the opinion of the Committee that disclosure would not be sufficient in matters relating to your father's cases, and Canon 4 requires that you disqualify yourself from any involvement in cases in which your father represents a party. As succinctly stated in Opinions 2006-2 and 2013-2, "the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts."

With regard to the two issues raised above, you have made a further request for advice regarding best practices for screening you from accessing cases for which you have been disqualified. Please be advised that the establishment of best practices is beyond the purview of the Committee, and you should seek advice from your department head on this issue.

Your final inquiry relates to your past efforts to raise money for a non-profit charity fund-raising program. You state that although you are aware of the ethical guidelines with regard to charitable fund-raising, you serve in a small community and many of those who have contributed in the past have an affiliation with you, both in and outside of the courthouse. Although you believe it best to avoid participation in this fund-raising event, you seek guidance from the Committee. We concur with your assessment and reiterate the principles outlined in Canon 5(B)(1): "A Clerk-Magistrate shall not participate [in civic and charitable activities] if there is a substantial likelihood that the organization, or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves." Although the Code allows Clerks to solicit charitable funds, a Clerk may not "use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose." See Canon 5 (B)(2). Given your new position as First Assistant Clerk and the fact that past contributors hold law related roles in and outside of the courthouse and may come before you, to preserve the appearance of impartiality in the performance of your duties, this Committee agrees with your decision not to participate in this fund-raising event.

Sincerely,
Christine P. Burak, Secretary