Reviewing of entry and sale documents for foreclosure proceedings.

April 8, 1991

Opinion 91-3

Dear Clerk:

We are writing to you in reference to your letter to the Committee dated February 12, 1991 seeking the Committee's opinion.

The issues you raise relate to the review of entry and sale documents prepared during foreclosure proceedings. You state that prior to legislation which became effective January 1, 1991 (St. 1990. c. 496) a mortgagee was required to obtain court approval of entry and sale documents before such documents could be recorded. The new legislation removed the approval process from the court's jurisdiction. You propose to provide a service, along with your wife, who is not an attorney, whereby you would review the entry and sale documents and determine whether or not they are proper and suitable for recording. You request the Committee's opinion on the following questions:

  1. Is the review of entry and sale documents for attorneys, presumably for a fee, considered to be the practice of law?
  2. Is there a possible conflict of interest involved in the reviewing of these documents?
  3. You ask whether your wife could appropriately run such a service if it is the Committee's opinion that you are not allowed to do so.

It is unnecessary to decide whether your reviewing of entry and sale documents would be considered the practice of law, because it is the Committee's view that such conduct would violate Canons 4 and 5 of the Code of Professional Responsibility for Clerks of the Courts.

With respect to your second question concerning the possible existence of a conflict of interest if you review these documents for attorneys, it is the opinion of the Committee that this activity would be considered a violation of both Canons 4(C) and 5(C)(1) of the Cope.

Canon 4(C) provides:

Business Activities - "A Clerk-Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office. A Clerk-Magistrate shall not use the influence of the office to promote his or her business interests or those of others."

Canon 5(C)(1) provides, in part:

Financial Activities '. . . A Clerk-Magistrate shall refrain from financial and business dealings that tend to reflect adversely on the Clerk-Magistrate's impartiality, interfere with the proper performance of the position of Clerk-Magistrate, or involve the Clerk-Magistrate in transactions with lawyers or other persons likely to come before the court in which the Clerk-Magistrate is serving."

Your provision of the described service to the legal community for a fee would be a business activity which may not be promoted through the influence of your office. It is also the Committee's opinion that the service which you describe would involve you in transactions with lawyers likely to come before the court in violation of Canon 4(C).

Finally, with respect to your inquiry whether it would be appropriate for your wife to review such documents, you are advised that the Committee may only render opinions relating to the conduct of Clerk-Magistrates, as defined in SJC Rule 3:12.