Association as independent income tax preparer with CPA

November 14, 1994

Opinion 94-11

Dear:

In your letter of October 20, 1994, you request an opinion of this Committee concerning a business opportunity which you desire to pursue. You are the First Assistant Clerk-Magistrate at the District Court which is located in Plymouth County. You state that you "have been asked by a certified public accountant with offices in Weymouth, Norfolk County, to become associated with him as an independent income tax preparer for his clients at his offices in exchange for a minor percentage of his fees." You note that the accountant has advised you that none of his clients would likely have any contact or business with the District Court. You have also been told that you would be able to work at your own pace and schedule during after court hours or non court time. You inform the Committee that, as an income tax preparer, you "would not be engaged in the practice of law, as one does not have to be an attorney-at-law to prepare income tax returns."

You seek the Committee's advice as to what professional or ethical factors you would have to consider in entering the arrangement described above, and what precautions you would have to take in obtaining your own clients for income tax preparation.

In the opinion of the Committee, provided that you comply with the provisions of the Canons of the Code of Professional Responsibility for Clerks of the Courts cited below, your participation in the business arrangement described in your letter is permissible under the Code.

Canon 3, titled Performance of Duties, requires that a "Clerk-Magistrate shall devote the entire time during normal court hours to the duties of his or her office ..." Paragraph 4 (C) of Canon 4 deals with business activities and provides that:

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....

While we would be unable to predict what circumstances might arise regarding the solicitation of new clients, we caution you to abide by the following Canons as your strict guideline when assessing what course of action you might adopt:

Canon 4 (C). " ... A Clerk-Magistrate shall not use the influence of the office to promote his or her business interests or those of others."

Canon 5. "Outside Activities. A Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties:
(A) Personal Conduct. A Clerk-Magistrate should not engage in activities which might detract from the dignity of the office of Clerk-Magistrate or interfere with the performance of the duties of the office...
(C) Financial Activities.
(1) A Clerk-Magistrate shall not 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."

Canon 5 further provides that subject to the limitations found in Canon 5 (C) and Canon 4 (C), a Clerk may hold and manage investments and engage in other remunerative activity.

Should your clients, or clients of the accountant with whom you become associated, appear before the court in which you work, the Committee advises you to consult and comply with the provisions of Canon 4 (E) on Disqualification.