Jury empanelment in case where father represents co-defendant

July 1, 2014

Opinion 2014-4

Dear Assistant Clerk _________:

This is in response to your request to the Committee made by email on June 9, 2014.  You are the First Assistant Clerk of the _________ Court.  You requested the Committee's advice on the following situation.  A jury selection was scheduled to begin the next day in your court.  The empanelment was for a trial involving a single defendant.  Your father represents a co-defendant who was not scheduled for trial but who may testify against the defendant whose jury was to be selected the next day.  The co-defendants' cases are not joined.  You stated that your office consists of four staff members and both the Clerk and the session clerk would be out of the office the next day, so that you would be the only clerk available to sit in on the court session.  You inquired whether you could call the case and begin the jury empanelment.  Because the trial was scheduled to begin the next day, you requested advice on an emergency basis.  

After contacting several Committee members, the Secretary contacted you on the morning of June 10, 2014, to report that the opinion of the members consulted was that it would be preferable for you to request assistance from a nearby court for the empanelment.  If assistance from another court were not available, it was the view of the members consulted that you should disclose on the record your relationship with the co-defendant's counsel.  If the judge and counsel had no objection after learning of the relationship, it was the members' opinion that your serving as clerk for the empanelment would not be problematic under the Code in these circumstances.  

By this letter, the Committee confirms the advice that you were given on an emergency basis.
 
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."  In prior opinions, the Committee has found that it would not be appropriate for an assistant clerk to handle cases involving a close family member.  See Opinions 13-2, 13-7.   Because of the need to protect the appearance of impartiality, the Committee has found that a clerk should neither exercise magisterial functions nor serve as a session clerk in the case of close family relationships.  In the opinion of the Committee, disclosure would not be sufficient in matters involving a close family member.  The Committee believes that your situation involving the empanelment can be distinguished from those prior opinions.  Your father's client was not scheduled for trial and the codefendants' cases were not joined.  In these circumstances, it is the view of the Committee that although it would have been preferable for another employee to serve as clerk during the empanelment, after disclosure, and providing there was no objection, your serving as session clerk would not be impermissible.  Disclosure of your relationship and your father's role as counsel for a codefendant would be sufficient to remedy any appearance of partiality.      

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions