Opinion  Opinion 2012-5

Date:	06/20/2012
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Fundraiser to benefit ill attorney with a jewelry party - a small business venture of the assistant clerk

Dear Clerk Magistrate:  You have requested an advisory opinion to clarify your management responsibility regarding certain fund-raising activity by an assistant clerk in your office.  Your inquiry arises from the following.

You are the Clerk-Magistrate at the _________  District Court.  An assistant clerk of that court has a small business venture selling jewelry.  Recently, she was involved in a fund-raiser to benefit a local attorney who has cancer.  The attorney regularly practices in your court.  The fund-raiser was a jewelry party sponsored by the assistant clerk and held at a church in the assistant clerk's hometown .  Flyers advertising the party were distributed throughout the court by another local attorney.  The flyers indicated that the jewelry party was on behalf of the attorney with cancer, listed the assistant clerk with her personal email address as the jewelry product advisor, and stated that 100% of the raffle sales and 50% of the jewelry commissions would be donated to the attorney's cancer fund.  The back of the flyer contained a standard order form listing the assistant clerk and her home address.  You were not consulted about this.  After you spoke with the attorney who distributed the flyers, the flyers were removed.

Your specific concerns are that (1) this activity may have put pressure on your office and other court employees to contribute to this particular charity; (2) this activity could be viewed as an endorsement by the court of this charity event; (3) the assistant clerk's involvement with this event could reflect on her impartiality when the involved attorneys are before her in the courtroom or in hearings; and (4) this fund-raiser promoted the assistant clerk's business interests and may have resulted in monetary gain to her through the 50% commissions she retained and/or the future building of her clientele base through this party.

You informed us that you do not believe that there was any wrongful intent on the part of the assistant clerk.  It is your view that this was an occasion of poor judgment.  As the event has already taken place, you are seeking guidance concerning your managerial obligations if confronted with a similar issue in the future. Therefore, we interpret your request as one for guidance as to your responsibilities as Clerk-Magistrate when confronted with conduct by a subordinate employee such as is described herein, and for clarification of the legal basis for any action you may take to educate or to correct employees as to their ethical responsibilities.

First, we draw your attention to Canon 3(B) of the Code of Professional Responsibility for Clerks of Courts which provides in pertinent part that "A Clerk-Magistrate should supervise subordinate personnel and arrange for their training."  Thus, your administrative responsibilities require that you give appropriate direction to subordinate staff in order to fulfill your duty under Canon 4 to "perform the duties of Clerk-Magistrate impartially and . . . [to] act at all times in a manner that promotes public confidence in the integrity of the judicial branch of government."

We turn now to the conduct which caused your concern. Canon 5 of the Code states "A Clerk-Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties."  In particular as to financial activities, Canon 5(C)(1) provides 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. 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 . . . likely to come before the court in which the Clerk-Magistrate is serving." (Emphasis added)

In the Committee's view, the activities of the assistant clerk are prohibited under each of the highlighted clauses of Canon 5(C)(1), and your administrative responsibilities as noted above require that you educate the assistant clerk regarding her responsibilities under the Code.  From the information we have been provided, it appears that the assistant clerk is not conducting her jewelry selling business at the courthouse or during court hours.  However, it does appear that  her jewelry selling party was advertised on the flyers that were distributed in the courthouse.  It is the opinion of the Committee that advertising one's outside business in the courthouse or knowingly allowing such advertising to occur is not distinctly different from "conducting outside business activities" in the courthouse.

In addition, in soliciting funds for the benefit of one attorney and working with another attorney who distributed the flyers in your office, the assistant clerk allows questions of her impartiality to be raised  by other attorneys who practice in your court.  Clearly, other attorneys would have reason to believe that those two attorneys are in a favored position with the assistant clerk.  Attorneys who purchase jewelry or raffle tickets may believe that their generosity may similarly elevate their position in the eyes of the assistant clerk.  Moreover, regardless of whether there is reason to question the assistant clerk's impartiality, we construe Canon 5(C)(1) as prohibiting this type of venture. Organizing a jewelry party for the benefit of an attorney who practices in your court is clearly involving the assistant clerk in  "transactions with lawyers" who come before your court.

The Committee is aware of the assistant clerk's good intentions and the fact the jewelry party had a charitable purpose.   Although the Code allows Clerk-Magistrates to participate in civic and charitable activities, under Canon 5(B) participation is not permitted if it reflects adversely on the Clerk's impartiality. Canon 5(B)(2) authorizes a Clerk-Magistrate to solicit funds for charitable purposes, but contains restrictions which limit assistant clerks' activities within the courthouse.  This section provides:

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

We are aware that neither the flyer nor the jewelry order form on the reverse side included any reference to your court or the assistant clerk's position with the court.  Nevertheless, the distribution of flyers containing her name and personal contact information in your office where she is well known would be an inducement for attorneys, particularly those who regularly appear in your court, to attend the jewelry party or to purchase raffle tickets.  It would also likely generate discussion with the assistant clerk during the court's business hours and such discussion could give rise to the appearance that the assistant clerk was using "the prestige of the office" to generate donations and income.

In sum, the fund-raising activity that you have described raises a number of ethical issues which we have addressed herein.  The Committee hopes that sufficient guidance has been provided to assist you in educating subordinate employees who are involved in outside business activities concerning their responsibilities under the Code.