Case evaluator for ADR project for contested divorce cases.

April 8, 1991

Opinion 91-4

Dear Clerk:

In your letter of March 11, 1991 you have asked whether your participation as a case evaluator in an alternative dispute resolution project developed by the Massachusetts Bar Association for contested divorce cases would violate the Code of Professional Responsibility for Clerks of the Courts.

The program provides the attorneys for the parties to a divorce case with a list of three evaluators. For a fee of $200, which is split by the parties, the evaluator selected by the attorneys conducts a one and one-half hour evaluation session in which each attorney makes a presentation, including a settlement proposal, and the evaluator offers his or her recommendations for settlement and an explanation of the reasons for the recommendations.

It is the Committee's opinion that your participation in this project as a case evaluator would violate Canons 4 (C ) and 5(C)(1) of the Code.

Those Canons provide:

4 (C) Business Activities. A Clerk-Magistrate shall not enter into any business relationship which reasonablv 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.

5(C) 1 Financial Activities. A Clerk-Magistrate shall n o t conduct outside business activities in the courthouse at any time nor shall a Clerk-Magistrate conduct any outside business activities anywhere during normal court hours. 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.

 

The receipt of a fee by the evaluator in connection with the provision of services qualifies this as a business activity. More significant, however, is that given the subject matter of the project and your position in the Probate and Family Court, we believe that your work as an evaluator may involve you in transactions with lawyers likely to come before the Court in which you serve, and might reasonably create a conflict with the proper performance of your official duty.