Opinion 94-1

February 4, 1994

Opinion 94-1

Dear Clerk:

          This letter is in response to your letter of November 26, 1993 seeking advice from the Advisory Committee. You have asked whether it would violate the Code of Professional Responsibility for Clerks of Court for a clerk-magistrate to engage in a for-profit mediation business outside of normal court hours. You ask whether the Committee's analysis would differ if (1) the business operated outside the geographical jurisdiction of the clerk-magistrate's court; (2) the business dealt only with attorneys or other persons not likely to come before that court; or (3) the clerk-magistrate operated the business while on a leave of absence from the court.

          The Committee in two previous opinions has determined that it would violate Canons 4(c) and 5(c)(1) for a clerk-magistrate to become involved in a private court system. Opinions 92-4 and 92-5. Copies of these opinions, with identifying information deleted, are enclosed with this letter. In the Committee's view, both a private court system and a mediation business are categorized as alternative dispute resolution activities. We do not see any basis to reach a different conclusion with respect to your inquiry and continue to advise that a clerk-magistrate should not engage in such outside business activities for the reasons set forth in those opinions. Nor do we think that locating the business outside the court's geographical area or attempting to limit business contacts to persons unlikely to come before the court would address the effect of such business operations on the dignity of the office or the public's perception of the business's effect on the clerk-magistrate's impartiality and proper performance of his position. See Canons 4(c) and 5(c).

          We are not able to address the effect of a leave of absence on these matters as we believe the status of a clerk-magistrate on a leave of absence may be an area governed by other administrative provisions.

          Finally, we note that the Supreme Judicial Court has appointed a Standing Committee on Dispute Resolution. That Committee may provide future additional guidance to court personnel on these issues.