Additional, more detailed, discussion on issues raised in #92-4.

August 4, 1992

Opinion 92-5

Dear Clerk:

The Committee acknowledges receipt of your letter of June 3, 1992, requesting that the Committee review your previous April 13, 1992 request for advice and the Committee's response of May 27, 1992 in light of an Informal Opinion received by you from the State Ethics Commission. The Committee considered your request at its last meeting. After review of your letters and of the Informal Opinion which you enclosed, it continues to be the Committee's opinion that involvement by you, a Assistant Clerk-Magistrate, in the business of a private court system would be the sort of business and/or financial activity prohibited by Canons 4(c) and 5(c)(1) of the Code of Professional Responsibility for Clerks of Court.

The Canons are designed to operate prophylactically. The Rules do not await an actual impropriety nor do they depend upon recusal to solve conflicts where the situation is one which "might reasonably create" them. A determination that they apply does not presume any lack of integrity by the Clerk.

Since lawyers and parties to disputes which may already be pending in the court system or could become pending would be the primary clients and sources of business for the private court system, a Clerk-Magistrate's identification with a private, profit-making court system raises numerous concerns. Whether or not the Clerk solicits business from those before the court, attorneys who know of the association might attempt to gain favor through the placement of business. Ties to a private court system could inhibit a Clerk from recommending alternative dispute resolution in a matter for which he might otherwise deem it appropriate. Certainly, the business would involve the Clerk in transactions with lawyers and other persons "likely to come before the Court," in the terms of Canon 5(c)(1).

The Code to which Clerk-Magistrates must conform is somewhat broader in terms of protection of the integrity of the office and also more specific to the role of the Clerk-Magistrate than the provisions of G. L. c. 268A, which were the subject of the Informal Opinion and which it is not for us to interpret. It remains the Committee's opinion that business dealings or interests in a private, profit-making court system by a Clerk-Magistrate would be prohibited by the Code.

Sincerely,