Fundraising for Charity and Serving on Family Charity
April 29, 2015
Dear Assistant Clerk-Magistrate ___________:
This is in response to your e-mail of April 7, 2015, asking the Committee's opinion on whether it would be appropriate for you to serve as a founder, director, or officer of a charitable organization to be established in the name of your late father. Your e-mail states that you are an Assistant Clerk-Magistrate at the ____________ Court. Your late father was an active attorney in a nearby town where he also served on the school committee and Board of Aldermen. He spent much of his life trying to improve the lives of the town residents suffering from poverty and substance abuse. You and other members of your family intend to form a public charity and seek contributions from friends, family, and the public to honor your father and continue his work in funding educational scholarships, directing funds to combat substance abuse, supporting rehabilitation, and taking other steps to assist the poor.
Canon 5(B) addresses a Clerk's participation in civic and charitable activities. Such participation is generally permitted provided that the activity does not reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties. The Canon allows a Clerk-Magistrate to serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
"(1) A Clerk-Magistrate shall not participate 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.
(2) A Clerk-Magistrate may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose . . . "
In prior opinions, the Committee has generally found civic and charitable activity by a Clerk to be permissible if the charitable organization and its members do not come before the court where the Clerk serves, the Clerk does not use the prestige of the office to advance the organization, and the Clerk does not use court time or resources for the civic or charitable work. Because you indicate that you do not expect that the proposed charity would be involved with individuals or entities with business in the court where you work, provided you comply with the requirements noted above, it is the view of the Committee that your service on the proposed public charity would be permissible under the Code. With respect to fundraising by the charity, we note that Canon 5(B)(2) allows a Clerk to solicit funds with certain restrictions. In Opinion 2005-1, the Committee cautioned that:
" . . . a solicitation directed to lawyers, particularly those who appear in the court where you work, has the potential to violate the Code. It may open up the possibility that lawyers will want to discuss your letter and donation during the court's normal working hours. It also could give rise to the appearance that you were using the prestige of your office to encourage donations by lawyers, a practice strictly prohibited under ethical rules of Canon 5. Canon 5 also instructs Clerk-Magistrates to minimize the risk of conflict with official duties. These considerations lead us to the view that you should not participate in direct solicitation from lawyers who practice in your court. If soliciting a particular lawyer creates an issue as to impartiality, the Committee advises you to consult and comply with the provisions of Canon 4(E) on Disqualification."
The Committee agrees that you could participate in decisions as to how funds that are raised may be spent with the provisos that (1) they would not be distributed to any individual or entity with business before the court, (2) you would be required to recuse yourself from board decisions regarding such individual or entity, and (3) and no work on these decisions is performed by you during normal court hours.
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions