Opinion  Opinion 2005-1

Date:	02/11/2005
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Fundraising for not-for-profit organization

In your letter of January 25, 2005, you request an opinion from the Advisory Committee on the following situation. You are an Assistant Register of the __________ Court. You have two children who attend the Jewish Community Center's Early Childhood Center in _______. The JCC is a not-for-profit organization which provides a summer camp and after school programs for area children. The JCC provides scholarship assistance to 70 families. The majority of the scholarship funds are raised through an annual festival and silent auction. You indicate you are a member of the Silent Auction Committee for this festival. Your committee has sent out numerous letters to various businesses to solicit donations for the auction.

Your committee is starting a second phase of soliciting financial (cash) donations from individuals to support the festival. You indicate that some of the letters will be sent to lawyers, some of whom are members of the JCC and some of whom have supported the activities of the JCC in the past. Some of the lawyers to be solicited are lawyers you know through your work in the Probate Court. The solicitation letters you intend to send will be on JCC letterhead and will be signed by the President, Development Coordinator, and yourself, in your capacity as a member of the Silent Auction Committee. Your letter specifically inquires as to whether letters soliciting cash donations from lawyers in the community would pose a problem. You request the Committee's opinion as to your ethical responsibilities.

Canon 5 of the Code of Professional Responsibility for Clerks of the Courts states "A Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties".

Paragraph (B) of Canon 5 of the Code addresses the subject of an Assistant Register's involvement with civic and charitable activities. Such participation is generally permissible as long as the activities "do not reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties." This paragraph also states that a Clerk-Magistrate may serve as "an officer, director, trustee, or non-legal adviser of an educational, religious, charitable, fraternal, or civic organization..." subject to the following:

"(1) A Clerk-Magistrate shall not participate if there is a 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.

(2) A Clerk-Magistrate may solicit funds for any educational, religious, charitable, fraternal or civic organization, but shall not permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose..."

In the opinion of the Committee, provided that you comply with the provisions of Canon 5 set forth above, and the requirement of Canon 3 that Clerk-Magistrates devote the entire time during normal court hours to the duties of their office, the Code would not prohibit you from serving on the JCC Silent Auction Committee and sending general solicitation letters to businesses, including area lawyers, under JCC letterhead, with no identification of your position as Assistant Register.

Although the Canons may allow for this general solicitation, in the Committee's view, a solicitation directed to lawyers, particularly those who appear in the court where you work, has the potential to violate the Code. It may open up the possibility that lawyers will want to discuss your letter and donation during the court's normal working hours. It also could give rise to the appearance that you were using the prestige of your office to encourage donations by lawyers, a practice strictly prohibited under ethical rules of Canon 5. Canon 5 also instructs Clerk-Magistrates to minimize the risk of conflict with official duties. These considerations lead us to the view that you should not participate in direct solicitation from lawyers who practice in your court. If soliciting a particular lawyer creates an issue as to impartiality, the Committee advises you to consult and comply with the provisions of Canon 4 (E) on Disqualification.