Handling duties of session clerk in matters involving brother's company

November 5, 2015

Opinion 2015-6

Dear Assistant Clerk-Magistrate ____________:

This letter is in response to your email to the Committee dated October 22, 2015.  You are an assistant clerk-magistrate in the ____________ Court. Your brother is the principal of a real estate management company that regularly is engaged in proceedings in your court. You are seeking an opinion regarding whether you should perform the duties of a session clerk in your court’s trial session in matters involving your brother’s company. You indicate that as a clerk-magistrate you hear small claims trials and show cause cases but that you recuse yourself from any case involving your brother’s company. However, you do perform courtroom functions as a session clerk during trials and motion hearings where your brother’s company appears frequently as a party.  You state that you have no decisional responsibilities on those cases but that you assist the judge in the usual manner recording the hearing, taking in evidence, and arranging for interpreters, mediators, and the like.

Canon 4 of the Code addresses impartiality and disqualification and requires that the “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.”  Recent decisions of this Committee have indicated that it would not be appropriate for an assistant clerk to handle cases involving a close family member. See Opinions 2013-2 and 2013-7. Those Opinions were premised on the need to protect the appearance of impartiality and advised that a clerk should not exercise magisterial functions or serve as a session clerk in such matters.

In Opinion 2013-2, the Committee opined that an assistant clerk-magistrate’s “interests, economic and otherwise, in the work of her spouse’s firm” could potentially “give rise to an appearance of impartiality.” In Opinion 2013-7, the Committee advised an assistant clerk that Canon 4 required disqualification of the clerk in cases where the clerk’s father represented a party. In both of these opinions, the Committee indicated that disclosure of the relationship on the record would not be sufficient to overcome the potential appearance of partiality. As stated in Opinion 2006-2, “the hallmark of an independent judiciary is its neutrality” and that, “to ensure the integrity of the judicial system, it must not only be beyond suspicion but must appear to be so." Citing Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966). We believe that the reasoning in those opinions may have even greater application to your situation, where your family member is the party at interest, and not the attorney for the party. For these reasons, it is the view of the Committee that disclosure is not sufficient and you should not serve as session clerk during proceedings involving your brother's company.

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