Winding up practice to assume position as Assistant Clerk Magistrate: status of name in firm name

May 6, 1996

Opinion 96-2

Dear:

This is in response to your letter of February 9, 1996 requesting an Opinion of the Advisory Committee concerning eight questions you have as you leave the practice of law to assume your responsibilities as an Assistant Clerk-Magistrate at Court. As to your questions numbers two, three, four, five, six and eight, this opinion confirms the advice which was given to you by the Secretary by telephone.

First, you ask if the firm name may continue to include your name in its title. The Committee has assumed that your name within reflects your membership in the firm, rather than any other member of your family. Taking into consideration that the firm is located in the same city as the Court that you will be working in, it appears highly probable that you will not be able to assure the appearance of impartiality which the Code requires. Canon 4 states that a Clerk-Magistrate shall always promote "public confidence in the integrity and impartiality of the judicial branch of government." In addition, Canon 4(C) states that, "A Clerk-Magistrate shall not use the influence of the office to promote his or her business interests or those of others." Also, the continued use of your name in the firm title could give rise to an appearance of conflict with the prohibition on the practice of law contained in Canon 3. Therefore, you may not permit your name to be used by a law practice in which you do not have and cannot have, under Canon 3, any participation.

Your second question asks if you have a "winding up" period to resolve your 50 pending cases. The answer is no. Canon 3 prohibits a Clerk-Magistrate from engaging in the practice of law.

You also may not refer former clients to new lawyers, nor may you receive a referral fee. Any referrals would have had to take place prior to your assuming the Clerk-Magistrate's position.

Your fourth question asks if you may practice law in "non court activities," such as Wills or Trusts. You mention that you might be assisting friends. You pose a query as to whether your performing these services for no fee would make a difference. The answer is no. Referring back to Canon 3, it prohibits any Clerk-Magistrate from engaging in the practice of law. You may not perform non-court activities such as Wills or Trusts, as this would be practicing law.

Your question number 5 requests an opinion as to whether you should notify all your active clients in writing of your appointment and your termination of your law practice. The Code of Professional Responsibility for Clerks of the Courts does not address this question. Although the Committee is of the opinion that such notification is appropriate, this question is one that is more properly before the Board of Bar Overseers.

Question 7 asks whether you may sell your business and goodwill to another lawyer and whether this lawyer could pay you a monthly fee over a five year period. It is the opinion of the Committee that, especially as to your inquiry as to goodwill, it would be more appropriate for you to address this question to the Board of Bar Overseers.

As to the issue of selling your law business, depending on how and to whom you sell business assets, you might violate Canon 4(C) and Canon 5(C). This Committee has addressed a similar issue in opinion No. 91-6 which involved the rental of a summer home by a Clerk-Magistrate. Obviously, it would be inappropriate for you to sell your law business to attorneys who regularly appear in the Court. As stated in opinion No. 91-6 :

Canon 5(C) specifically prohibits financial transactions by a Clerk-Magistrate with lawyers or other persons likely to come before the Court in which the Clerk-Magistrate is serving.

Canon 4(C) prohibits a Clerk-Magistrate from using the influence of the office to promote his or her business interests. In opinion No. 91-6 , in which the Committee found that the Clerk-Magistrate should not rent his vacation home to attorneys who regularly appear in the Court where he works, the Committee felt that some steps could be taken to assure compliance with the Code. Most important is a requirement that any sale be an arms length transaction and that a fair market price be charged. The use of a broker may be helpful in this regard. The sale should be to someone who does not regularly appear in the Court. If you should by chance sell your business to an attorney who later appears before you, you should disclose this information to all involved in the hearing. Please see Canon 4(E) on disqualification and remember that the test of disqualification is whether your "impartiality might reasonably be questioned." Obviously, these comments on the sale of your business assume that you receive a positive response from the Board of Bar Overseers. Lastly, you ask if you may remain active in the Greater Lynn Bar Association as an officer. The Committee has rendered an opinion on this subject. A copy of opinion No. 94-6 is enclosed with this letter. It is the opinion of the Committee that Canon 4(D) covers the situation of your involvement in a bar association. Specifically, this provision of the Code states that "A Clerk-Magistrate may use his or her title to engage in activity to improve the law, the legal system or the administration of justice." The prior opinion cautions that there may be situations where a particular activity may cause a conflict of interest to arise. If such a situation presents itself, you should make sure to comply with Canon 4(E), which covers disqualification.