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Opinion Opinion 2015-1

Date: 01/09/2015
Organization: Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Participation in training program for trial lawyers

Dear Assistant Clerk-Magistrate _____________:

This letter is in response to your email request dated December 12, 2014, seeking an advisory opinion relative to whether you may participate in the Advanced Trial Training Program in 2015 in light of your recent appointment as an Assistant Clerk-Magistrate in the ____________Clerk’s Office. In your letter, you indicate that in the past, while you were a practicing attorney, you acted as an administrator for the program conducted in the Boston Municipal Court, which pairs senior experienced defense and district attorneys with their inexperienced counterparts to learn how to handle jury trials in the Boston Municipal Court. If you continue to participate in this training program, which occurs outside of the normal business hours of the court, you will work with assistant district attorneys and defense attorneys who you will encounter in your role as an Assistant Clerk-Magistrate of the ______________ Court.

You have not provided details as to what your role as administrator for the program encompasses, therefore our advice is limited to the general rules under the Code of Professional Responsibility for Clerks of the Courts. Canon 4 (D), Activities to Improve the Law, encourages Clerk-Magistrates to “engage in activity to improve the law, the legal system, or the administration of justice.” It is our understanding that as an Assistant-Clerk Magistrate in the _____________ Court, you do not perform an adjudicative role.  In these circumstances, it is the opinion of this Committee that you may participate in this court sponsored program for training lawyers if you act in an even-handed manner and adhere to the following sections of the Code of Professional Responsibility: Canon 4 of the Code, Impartiality and Disqualification,states:  “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.” As has been stated often in the Committee’s decisions, the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts, and you should be careful not to convey an appearance of partiality toward either defense or prosecuting attorneys.   

Further, it is the opinion of this Committee that you should be guided by the provisions of Canon 4 (E) relative to Disqualification which stresses that a Clerk-Magistrate “should disqualify him or herself from serving in an adjudicative capacity in a proceeding in which the Clerk-Magistrate’s impartiality might reasonable be questioned.”  If participants from the program appear before you in the performance of your current duties, provided your duties are not adjudicative in nature, it is the opinion of this Committee that with the agreement of the parties, disclosure on the record of your affiliation with the participants of this program would be sufficient to be in compliance with Canon 4 (E).    

Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions


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