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Ethical Opinions for Clerks of the Courts
This is in response to your correspondence dated November 15, 2001 requesting an opinion from the Committee with respect to your appearance pro se at a public hearing before the Zoning Board of Appeals (Board) to oppose a zoning appeal by the owner of land that directly abuts your residential property. This response is a follow-up to the advice you were given by telephone from the Committee Secretary. You indicate that you are an Assistant Clerk in the Court and that your single family residence is owned jointly with your wife. You ask whether your appearance pro se before the Board would violate any Canon of the Code of Professional Responsibility for Clerks of the Courts (Code), Supreme Judicial Court Rule 3:12, and you specifically reference Canon 3 which states in relevant part that "[a] Clerk-Magistrate shall not engage in the practice of law." You ask whether you may join with your wife on any pro se oral or written argument that she makes, or that you jointly make, to the Board or Court. You also indicate that you may seek to join in arguments made by other pro se parties, including your wife, or made by any counsel retained by a party to the case. You further ask whether you may properly participate as a pro se party in an appeal from an adverse decision of the Board to the Superior Court, Land Court, Appeals Court or Supreme Judicial Court.
In general, a person has the right to represent himself or herself in administrative proceedings and before the courts of the Commonwealth. "Parties may manage, prosecute or defend their own suits personally, or by such attorneys as they may engage . . .." G. L. c. 221, §48. In referring to this statute, the Supreme Judicial Court has stated that "[i]ndividuals have been permitted to manage, prosecute or defend their own actions, suits, and proceedings, and to defend prosecutions against themselves except when the public welfare demands otherwise, and this does not constitute the practice of law. See G. L. (Ter. Ed.) C 221, §48; c. 277, §§47, 48." Opinion of the Justices to the Senate, 289 Mass. 607, 614-615 (1935). See also Curtis v. J. J. Duffy Adjustment Service, Inc., 31 Mass. App. Ct. 949, 950 (1991) ( the court citing G. L. c. 221, §48 as "a statute of ancient vintage" reiterated the right of pro se parties to prosecute or defend their own civil actions). "That the plaintiff would be prosecuting her own action and also testifying in the case is not sufficient reason to dismiss her complaint or to disqualify her from serving as counsel. See Gorovitz v. Planning Bd. of Nantucket, 394 Mass. 246, 248-249 (1985) (a lawyer may serve as counsel and testify if he is a party to the action)." Id. at 950.
It is the considered opinion of this Committee that your appearance before the Board representing your own interests in your property and representing the interests of your wife in property you jointly own does not violate the Code. It is noted that during the course of representing your personal interests or the joint personal interests of you and your wife you should be careful not to reference your position in the court system. Any such reference could violate the provisions of Canon 4. It is the opinion of the Committee that you may join with your wife on any oral or written argument, or argument made by any other pro se party, or counsel representing any party, as long as those arguments are consistent with your representation of your individual pro se interests and you are solely representing your pro se interests, or the joint pro se interests of you and your wife, and not those of other parties, and that your position is not inconsistent with that asserted by your wife. It is also the opinion of the Committee that you may participate as a pro se party in any appeal of a decision of the Board to any court in this Commonwealth. Participation in any such appeal would require full disclosure of your position to all parties and to any judge sitting on the case to provide an opportunity for a party to present a motion for recusal to the judge, if appropriate, or to provide an opportunity for the judge to recuse himself or herself sua sponte, if appropriate.
This opinion is provided to assist and guide you and is based upon the facts provided in your correspondence.