Performing mediation or arbitration services for the Massachusetts Commission Against Discrimination

May 29, 1996

Opinion 96-6

Dear:

This is in response to your letter of May 1, 1996 in which you seek the Committee's advice on whether you may perform mediation or arbitration services for the Massachusetts Commission Against Discrimination (MCAD). You are an Assistant Clerk-Magistrate at the District Court. You recently were asked to apply to become an unpaid volunteer mediator or arbitrator at the MCAD. You state that your duties as assistant clerk are exclusively in the District Court and note that the Superior Court has exclusive jurisdiction to review any decisions of the MCAD.

In a number of previous opinions, this Committee has addressed questions relating to Clerk-Magistrates' involvement in alternative dispute resolution activities. We have previously found such involvement to be problematic because, in the situations presented to us, the Clerk-Magistrates would be identified with a private court venture and involved, sometimes for a fee, with attorneys likely to come before the court where the Clerk-Magistrates worked. We noted that 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)." Opinion No. 92-5 .

The mediation or arbitration role in which you wish to engage differs from the situations that have been before us in prior opinions. You wish to work for a state agency on a volunteer basis on matters which do not come before the court in which you work. Provided that you do not perform these mediation or arbitration services during normal court hours, we see no conflict with the provisions of the Code if you serve in this role for the MCAD. In the event that persons with whom you work at the MCAD come before you in your role as assistant clerk, you should consult and comply with the provisions of Canon 4(E) regarding disqualification.