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Ethical Opinions for Clerks of the Courts
This letter is in response to your August 30, 2006 inquiry and request for an opinion. We understand that you have been appointed as an Assistant Clerk-Magistrate for the ______ County Superior Court, that you expect to receive your confirmation letter during the week of _______, 2006 and will be sworn in thereafter. Your anticipated start date is ______, 2006. You are currently in private practice in _______ at the law firm of __________________. Your practice focuses on business and probate litigation. You practice primarily in the _____ Superior Court and the _____ Probate Court. The questions that you asked and the Committee's responses are as follows:
1. "What may I do at this point to transition my cases to colleagues at the law firm?"
This question is beyond the scope of the Committee's authority and should best be addressed within the firm. There are also outside resources such as the ethics hotline at the Office of Bar Counsel, the Board of Bar Overseers website, and/or outside counsel consultation.
2. "Further, does the prohibition against practicing law begin from appointment, confirmation, being sworn or the first date of work?"
In our view, you should cease practicing law no later than the day you are sworn in or your first day of work, whichever is the first to occur.
3. "A related question is: how may I inform my clients that I am leaving the practice of law to work as an Assistant Clerk Magistrate?"
Again, this question is beyond the scope of the Committee's authority and should best be addressed within the firm or via outside resources.
4. "In addition, my husband is an Assistant District Attorney in ______ County. He practices in the _____ Superior Court. My brother-in-law is a police officer in the Town of _____. Are there any limitations on my work in a criminal session? If so, what are they?"
In our opinion, your marriage to an assistant district attorney who works in the Court where you intend to work and your relationship by marriage to a police officer in a town within the Court's jurisdiction would bar you from working on certain criminal matters. These restrictions flow from the need to preserve public confidence in the judicial system. The purpose of the norms of conduct and practice set out in the Code of Professional Responsibility for Clerks of Court, as articulated in Canon 1, is to "contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts." The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to both actual and perceived impartiality. Canon 4 makes this explicit:
"A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.
(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence.
"Canon 4 further requires disqualification if a Clerk-Magistrate's impartiality might reasonably be questioned:
"(E) Disqualification. A Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate's impartiality might reasonably be questioned. A Clerk-Magistrate who would be so disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties, individually or through counsel, after consultation independent of the Clerk-Magistrate, agree in writing that the Clerk-Magistrate need not be disqualified, the Clerk-Magistrate may participate in the proceeding. The agreement, signed by all parties, shall be incorporated in the record of the proceeding."
In our view, at minimum, these provisions of the Code would prevent you from participating in any matters in which your husband or brother-in-law are involved. Even if your husband or brother-in-law are not personally involved in a matter, it may be inappropriate for you to act in matters involving their co-workers. Under Canon 4(E), "[a] Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate's impartiality might reasonably be questioned." Your impartiality may be questioned as to any matters involving the _____ County District Attorney's Office or the Town of _____ Police Department, and in our view, it would be appropriate for you to either refrain from exercising adjudicatory authority in those matters, or to disclose your relationships in accordance with the requirements of Canon 4(E) above. We have noted in the past that a Clerk should give careful consideration to whether this disclosure option would be appropriate in situations where the facts calling for disqualification implicate a broad public interest in the real and perceived separation of adjudicative and prosecutorial interests.
In sum, our reading of the Canons, with their purpose of preserving public confidence in the judicial system, leads us to the conclusion that with respect to matters involving the District Attorney's Office and the _____ Police Department, you should take particular care to ensure that the appearance of impartiality is preserved. To ensure the integrity of the judicial system, it "must not only be beyond suspicion but must appear to be so." Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966). The public deserves no less.
5. "Finally, are there any limitations on handling cases involving my former employers, ________________________ and ___________________? I have reviewed Canon 4 in this regard, and understand that I may either recuse myself or disclose on the record that I was formerly employed by the law firm and if all parties agree, then I may participate in the proceeding."
This issue must be viewed with the utmost of caution so as not to violate the letter and spirit of the Canons and, in particular, Canon 4, as noted above. In that light, you should recuse yourself from involvement
(a) with any matter that was pending at the time of your departure from your present firm regardless of the extent of your involvement or knowledge;
(b) with any matter in which you had active involvement or knowledge regardless of the firm in which the matter was being handled and whether it was pending at the time of your departure from your present firm; and
(c) with any matter involving any individual at either the _______ firm or _________ to the extent that your personal relationship would affect your ability to be impartial and, as to such matters, you should disclose to all parties under Canon 4(e) your relationship with the firm(s) and/or persons at such firms and be guided by the protocol set forth therein.
We hope that this letter is of assistance.
For example, there is an article on the Bar Counsel website entitled "EXIT STRATEGY FOR LAWYERS: How to Close a Law Practice When Retiring or Changing Careers" which may contain useful information. You may find it at: http://www.mass.gov/obcbbo/articles.htm