Opinion  Opinion 2012-1

Date:	01/27/2012
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Clerk Serving as Member of Board of Directors of a Credit Union

Dear Assistant Clerk-Magistrate:

You have requested an advisory opinion on whether you, an assistant clerk magistrate of the district court, may serve as a member of the Board of Directors of a credit union, a voluntary, unpaid position. Your responsibilities at the court include conducting small claims trials and payment review hearings, supplementary process hearings, and show cause hearings. You have been a member of the credit union since 1987. The credit union Board of Directors is responsible for adopting and overseeing credit union policies which are implemented by a professional management team. Although the credit union was initially organized by faculty and staff of an educational institution, it is now a legally separate and functionally autonomous entity. The credit union membership is drawn from the county in which you serve and two adjoining counties. You occasionally have had small claims or supplementary process cases come before you in which the credit union appeared as a party. Since becoming a member of the credit union Board of Directors you have encountered no such cases and you would recuse yourself in the future from any participation in cases involving the credit union in any way. You inquire whether recusal on your part on a case by case basis will satisfy the obligations imposed under Canons 4 and 5 of the Code of Professional Responsibility for Clerks of the Courts. If you cannot serve on the Board of Directors, you also ask whether you can continue to be a member of the credit union.

Canon 4 and Canon 5 of the Code require that a Clerk perform his or her duties in a manner that promotes public confidence in the integrity and impartiality of the Judicial Branch and minimizes the risk of conflict with official duties. In our view, these canons set forth obligations that may be breached by your service on the Board of Directors. Canon 4 provides, in part, that:

(B) Personal Affairs. ... A Clerk-Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk-Magistrate in any official capacity.

(C) Business Activities. A Clerk-Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office...

(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.

Canon 5 of the Code regulates the outside activities of clerks. Canon 5(C) provides, in part, that ". . . A Clerk-Magistrate shall refrain from financial and business dealings that tend to reflect adversely on the Clerk-Magistrate's impartiality, interfere with the proper performance of the position of Clerk-Magistrate, or involve the Clerk-Magistrate in transactions with lawyers or other persons likely to come before the court in which the Clerk-Magistrate is serving. . ."

In opinion No. 99-3 this Committee expressed the view that a number of provisions of the Code precluded acceptance by a district court assistant clerk of the position of corporator of a savings bank located in Massachusetts. That opinion specifically noted that the assistant-clerk's offer to recuse himself from any matter before the court involving the bank would not solve the problem because it might not be possible to determine in advance all the potential contacts with other corporators, employees, officers, trustees, or directors of the bank.

In the opinion of the Committee, your service on the Board of Directors of a credit union whose members may be from the jurisdiction of the court where you serve is problematic under the Canons cited above. Such service could involve you with lawyers or others likely to come before the court where you work and create an appearance that reflects adversely on your impartiality. As the Committee has frequently noted, 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 Committee's opinion in No. 99-3 and in your case is different from the situation in opinion No. 2000-4 , in which the Committee advised that an assistant clerk could serve as director of a bank that was not within the jurisdiction of the court where the assistant clerk worked.

Although the Committee is of the view that you may not serve on the credit union Board of Directors, you may continue to be a member of the credit union. Pursuant to Canon 4(E) you, at a minimum, should disclose membership with the credit union in any matter that appears before you involving the credit union you belong to.