Opinion 94-6

June 3, 1994

Opinion 94-6

Dear Clerk:

          This is in response to your letter of April 7, 1994 to the Advisory Committee on Ethical Opinions for Clerks of Courts. You request the Committee's advice as to whether your involvement with the Bar Association while you serve as first assistant clerk in the Court is in conflict with the Code of Professional Responsibility for Clerks of Court. You describe your bar association activities as follows.

          You were President of the Bar Association from November 1992 to November 1993. You currently serve on the Executive Committee and hold the position of Treasurer. You note that in serving as a bar officer you continue a long tradition of Clerk involvement in bar activities and state that the County Bar Association has no specific agenda except to improve the law, the legal system and the administration of justice. As president of the association, you supervised the scheduling of continuing legal education programs and were the Master of Ceremonies at social events. You also spoke at other ceremonial events. You state that it has recently been brought to your attention that these bar activities may be in violation of Canons 5(B)(1) and 5(D)(1)(b) of the Code.

          Under the Code of Professional Responsibility, Clerks are permitted to participate in civic and charitable activities subject to the limitations contained in Canon 5(B)(1) which provides that: "A Clerk-Magistrate shall not participate if there is substantial likelihood that the organization, or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk- Magistrate or the court in which the Clerk-Magistrate serves."

          Canon 5(D) addresses the subject of fiduciary activities and generally prohibits Clerk-Magistrates from serving as fiduciaries except where such service is for a family member as defined in the canon.

          The Advisory Committee does not read either of these canons, or any other provision in the Code, as prohibiting your involvement with the Bar Association. Although a significant number of the members of the bar association would be engaged in proceedings that come before your court and in your position as Treasurer you serve as fiduciary for the Association, it is the opinion of the Committee that the language of Canon 4(D) governs in this situation. Canon 4(D) clearly states that "A Clerk-Magistratemay use his or her title to engage in activity to improve the law, the legal system or the administration of justice. . . " The bar association activities in which you are engaged come within the type of activities that are permitted under this canon and they do not impede your ability to function in an impartial manner as first assistant clerk.

          There may be situations where, because of the nature of a particular bar association or a particular bar association activity, issues of conflict of interest or potential conflict of interest do arise. In the opinion of this Committee, the activities described in your letter do not fall within that category. If such a situation should arise, you should consult and comply with the provisions of Canon 4 (E) regarding disqualification.