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Ethical Opinions for Clerks of the Courts
Dear Assistant Clerk-Magistrate___________:
This Opinion is made in response to your letter to the Committee dated March 28, 2017. You are an assistant clerk-magistrate in the _____________ Court and prior to your appointment you were in a private criminal law practice with your spouse. Both you and your spouse took bar advocate duty days in the court where you now work and your private law business primarily came from the towns served by that court. Recently you became aware of Opinion 2013-2 of this Committee concerning an assistant clerk-magistrate and an attorney spouse working in the same courthouse. You and court officials conferred about that Opinion and it was agreed that you and your spouse could continue your work in the ___________ Court so long as you did not serve as a clerk in a session where your spouse had matters scheduled. Your spouse will provide the Clerk-Magistrate of your court a schedule in advance so that you may be assigned to a session where your spouse is not appearing. You are seeking an opinion regarding whether this approach is in compliance with Supreme Judicial Court Rule 3:12, the Code of Professional Responsibility for Clerks of the Courts.
Canon 4 of the Code concerns impartiality and disqualification and requires that you "perform the duties of Clerk-Magistrate impartially and . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government." This requirement of impartiality and the appearance of impartiality is the basis for the Committee's conclusion in Opinion 2013-2 that an assistant clerk-magistrate's "interests, economic and otherwise, in the work of her spouse's firm" could give rise to an appearance of partiality and would not be permissible under Canon 4. Similarly, in Opinion 2013-7, the Committee advised an assistant clerk that Canon 4 required disqualification of the clerk in cases where the clerk's father represented a party. In both of these Opinions the Committee indicated that disclosure of the relationship on the record would not be sufficient to overcome the potential appearance of partiality. The Committee believes that the arrangement described in your letter, which shows your understanding that it would not be appropriate for you to handle cases involving your spouse, is in compliance with the Code and the Committee's earlier opinions.Your work in sessions where your spouse appears would give rise to at least an appearance of partiality, undermining the public's trust and confidence in the courts. With respect to others with whom you may have a relationship stemming from your former business or your spouse's business, the Committee suggests you consult and comply with the provisions of Canon 4(E) on Disqualification.
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions