Providing endorsement to candidate for Register of Probate

January 31, 1997

Opinion 97-2

Dear:

On October 11, 1996, you called the Secretary of this Committee requesting an opinion on whether you could provide an endorsement to a friend who was running for the position of Register of Probate in . The friend you wished to endorse was then the Assistant Register of Probate. Your friend's opponent was an attorney practicing on . You are the Clerk-Magistrate of the Superior Court.

On October 15, 1996, after contacting the Committee members by telephone, the Secretary called to tell you that the members had differing opinions as to the propriety of your making the endorsement. Three members saw no conflict under the Code with your endorsing the Assistant Register; one member's opinion would depend on the contacts you have with the opponent of the Assistant Register, and in one member's opinion, the endorsement would not be proper.

In your conversation with the Secretary on October 15, 1996, you provided additional information on your contacts with the opponent of the Assistant Register. You noted that there are approximately 30 lawyers on and said that the opponent of the Assistant Register has a significant amount of Superior Court business. He is one of about ten lawyers who frequently come into the Clerk's office.

After meeting to consider your request, the Committee is of the opinion that, under the circumstances you described, your endorsing the Assistant Register would not be appropriate under the Code of Professional Responsibility for Clerks of the Courts. In the view of the Committee, the provisions of Canon 4 on impartiality would be implicated by your endorsement. Canon 4 requires that:

"A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.
(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence.
(B) Personal Affairs. . . . A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity."

Because the opponent of the candidate you wished to endorse is one of a small number of lawyers who have frequent contacts with the office of the Superior Court Clerk, your endorsement may cast doubt on your ability to impartially decide issues coming before you in your official capacity, or may present an appearance of partiality which is contrary to the provisions of Canon 4. For these reasons, the Committee finds that an endorsement by you in these circumstances would conflict with the Code.

Under the rules of this Committee, any conduct in which you engaged in reliance on the advice provided by the Secretary on October 15, 1996, is entitled to the protections contained in S.J.C. Rule 3:14.