Related to:

Opinion Opinion 2015-2

Date: 03/10/2015
Organization: Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving on Judicial Nominating Counsel

Dear Assistant Clerk __________:
This letter is in response to your email to the Committee dated February 24, 2015, seeking advice on whether you may apply for, and if offered accept, a position as a Judicial Nominating Commissioner.  You state that these positions are unpaid, voluntary positions, the function of which improves the judicial system.  You noted that the deadline for applying for the position was approaching and time was of the essence.  

By this letter, the Committee confirms the advice that was provided to you by the Secretary prior to the deadline for applying to be a Commissioner.  In the view of the Committee, your service as a Judicial Nominating Commissioner would not be consistent with the provisions of the Code of Professional Responsibility for Clerks of the Courts.  The Committee addressed this situation in Opinion 2003-2, in which the Committee advised that service on the Judicial Nominating Counsel (JNC) could implicate the provisions of Canon 4, which state that:

"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.

(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."

In Opinion 2003-2, the Committee noted that the JNC's general role of recommending or failing to recommend candidates to become judges and clerks could lead to the perception that a clerk might have an opinion that would be viewed as either favorable or unfavorable towards a judge or lawyer who had been before the JNC while the clerk was a member.  Because the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts, the Committee found that service on the JNC would be problematic.  It is the Committee's view that for the reasons given in Opinion 2003-2, your service as a Judicial Nominating Commissioner would not be consistent with the Code.   

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


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