Opinion  Opinion 2013-6

Date:	10/07/2013
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Submitting letter of recommendation for court officer in disciplinary hearing

Dear First Assistant Clerk:      

You are a First Assistant Clerk Magistrate in the ------ Court and recently requested emergency advice from the Committee. You inquired whether you could submit a letter of recommendation on behalf of a court officer in connection with the court officer's disciplinary hearing. You provided the Committee with a draft of your proposed letter, which you state is based on your personal observations of the court officer while you both worked at the same court. You and the court officer worked in the same court for thirteen years before he was transferred to a different court department. You state that the court officer was charged with numerous counts of a criminal offense, which were resolved by a continuance without a finding, six months unsupervised probation and restitution. You further note that the legal difficulties of the court officer did not occur in the trial court, and that the six month period during which the case is continued without a finding has not yet expired.       

On September 17, 2013, the Committee secretary called you to report that in the opinion of the members she consulted, including the Chair, your submitting a letter of recommendation in these circumstances would not be appropriate under the Code of Professional Responsibility for Clerks of the Courts. By this letter, the Committee confirms the advice you were given by telephone on an emergency basis.   In prior opinions, the Committee has stated that the Code does not prohibit a Clerk from providing letters of reference. (See Opinion 2007-2 , where the Committee found that a Clerk's providing a character reference for use in a court disciplinary proceeding was permissible under the Code.) In the view of the Committee, however, the fact that the criminal case against the court officer has not yet been dismissed is dispositive. See Opinion 99-2 , where the Clerk was advised not to write a letter of recommendation while a criminal matter was still pending. There is a potential for further proceedings as long as the criminal case remains open and, consequently, the potential that any letter you write could be submitted in connection with the disposition of criminal charges. As noted by the Committee in Opinion 99-2, submission of such a letter in a criminal case "could or would be construed as interference with the official duty of another court" in violation of Canon 4(B). For this reason, it is the Committee's view that you may not submit a letter of recommendation so long as the criminal case remains open.