Opinion 97-5

May 29, 1997

Opinion 97-5  

Dear:

           This is in response to your letter of March 5, 1997. In your letter, you state that you were recently appointed an Assistant Clerk-Magistrate in the Court, and you seek the Committee's advice on a number of questions relating to your continuing to hold various positions which you held while you were practicing law.

           The first question you pose concerns your serving as an unpaid member of the Town of Zoning Board of Appeals. You state that the Town of is not within the jurisdiction of the First District Court of and that you do not believe any matters involving the Board of Appeals would come before you as an Assistant Clerk-Magistrate. The Code would permit you to continue to hold this position as long as you comply with Canon 5(C)(1). This Canon states that a Clerk-Magistrate shall not conduct outside business activities in the Courthouse at any time, nor shall a Clerk-Magistrate conduct any outside business activities anywhere during normal court hours. In other words, you must make sure to devote the entire time during normal court hours to the duties of your office.

           Your second question concerns your serving as an unpaid member of the Southeastern Regional Transit Authority Advisory Board, as the representative from the Town of , and serving as an unpaid member and Secretary of the Southeastern Regional Transit Authority Pension Fund. You state there are no member communities of the Authority that are within the jurisdiction of the Court. The Committee believes that you may continue to serve on these Boards with the same caveat; you must not perform services related to these Boards in the Courthouse at any time; nor may you perform any services for these Boards during normal court hours.

           The next four questions all involve your serving in fiduciary capacities, including acting as trustee of two nominee trusts, as a conservator and as an executor. You describe your relationships with the persons for whom you are serving in a fiduciary capacity as follows.

           In the case of one of the nominee trusts, you state that the beneficiary is a close friend with whom you have socialized and gone on vacations. Your long friendship included your acting as campaign manager for this individual. Your relationship with the beneficiary of the second nominee trust is that he is a former client with whom you have socialized and attended many family functions. In your role as conservator, you note that for the past two years, you have seen your elderly ward at least once each week, and usually two or three times per week. You take care of her bills, medical insurance and food since she appears to have no heirs. You indicate that she trusts you and feel that she would have difficulty accepting another individual in this role. Finally, in the matter in which you serve as executor, you note that you went on vacations with the decedent, dined with him and had other family interactions over a 25 year span.

           None of your relationships with those for whom you are acting in a fiduciary capacity are familial in nature as that term is defined in the Code. See Opinions Nos. 91-1, 95-3. Canon 5(D) addresses the subject of fiduciary activities and, with the exception of the grandfathering provision discussed below, prohibits Clerk-Magistrates from serving as fiduciaries except where such service is for a family member as defined in the Code. The grandfathering provision of Canon 5(D)(2) provides as follows: "A Clerk-Magistrate may serve as an executor, administrator, trustee, guardian, or other fiduciary for the estate, trust or person of one who is not a member of his or her family provided that the Clerk-Magistrate was acting in the fiduciary position prior to April 1, 1990."

           Based on the facts you have stated in your letter, your appointments as conservator and executor do not fall within this grandfathering provision since you began serving in both these positions after April 1, 1990. Under the Code, you may no longer serve in these roles. As to your serving as trustee of the nominee trusts, unless your appointments as trustee were made prior to April 1, 1990, you must resign from these positions also.

           Finally, you ask if you may continue serving as an escrow agent in a Superior Court action on behalf of a "client". It is worth noting that the minute you took the position as an Assistant Clerk-Magistrate, you no longer had any clients since Canon 3 specifically prohibits the practice of law. The facts you provide indicate that your former client has had difficulty paying his bills. As the escrow agent, you have taken the rental payments due to the "client" and paid bills such as electric, gas, water, sewer and insurance. The mortgage company no longer permits your former client to keep rental monies. You state that the court case is in Court and you would expect no action in the Court. It is the opinion of the Committee that your activities as escrow agent for the "client" involve the practice of law and are prohibited by the Code.

           We note that your letter to the Committee was submitted on letterhead which identifies you as an "attorney at law". Since under Canon 3 of the Code, Clerk-Magistrates are expressly prohibited from engaging in the practice of law, you should no longer use this stationery.