Serving as real estate broker for third parties

October 18, 2016

Dear First Assistant Clerk ____________:

This letter is in response to your request dated August 2, 2016, seeking an advisory opinion as to whether it is permissible pursuant to the Code of Professional Responsibility for Clerks of the Courts to act as a real estate broker and represent either sellers or buyers in real estate transactions.  You  indicate that this activity would be done outside of the hours of the court.  In a follow up e-mail and conversation, the Chairperson of the Advisory Committee on Ethical Opinions for Clerks of the Courts asked about the nature of the real estate work you are seeking to perform, the anticipated location, and whether you would work with a real estate firm or on your own.  You indicated that you would be seeking to do residential real estate transactions in ___________ County which is not in the jurisdiction where you work or in the jurisdiction of the court where you occasionally provide assistance.

In Opinion 2014-2, the Committee opined that it was permissible for an Assistant Clerk-Magistrate to obtain a broker’s license and act as a buyer’s agent in connection with the purchase of a personal residence.  The Committee at that time was not asked and specifically did not address the question as to whether it would be permissible to act as a broker for a third party.

Your inquiry requires us to answer that question.

In considering your request, the Committee reviewed the provisions of Canon 5(D)(1), Fiduciary Activities.  This Canon provides that "a Clerk-Magistrate shall not serve as an executor, administrator, trustee, guardian or other fiduciary, except for the estate, trust, or person of a member of his or her family, and then only if such service will not interfere with the proper performance of the Clerk-Magistrate’s duties."  The Committee noted that the "term fiduciary describes the faithful relationship owed by an attorney to a client or by a broker (and salesperson) to a principal.  The fiduciary owes complete allegiance to the client."  See http://www.mass.gov/ocabr/licensee/dpl-boards/re/ceu/continuing-education-subject-matter-curricula/re57r07.html.  Therefore, it is the opinion of the Committee that your acting as a real estate broker for buyers and sellers would be prohibited under Canon 5(D)(1).

Given the Committee's view that the provisions of Canon 5(D)(1) specifically govern your inquiry, we have not reviewed the factors that generally are at issue when the Committee considers questions regarding outside employment.  Therefore, the Committee has not reviewed to what extent, if at all, your acting as a broker, in an age when properties are often advertised on an online Multiple Listing Service (MLS) that is available outside the jurisdiction of the courts where you work, would implicate the provisions of Canon 4(B), which require Clerks to conduct personal affairs so as not to cause public disrespect for the court and the judicial system; and the provisions of Canon 5(C), which prohibit Clerk-Magistrates from conducting outside business during normal court hours and from engaging in financial and business dealings that tend to reflect adversely on the Clerk-Magistrate’s impartiality, interfere with the proper performance of the position, or involve transactions with lawyers or other persons likely to come before the court in which the Clerk-Magistrate is serving.

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