Opinion  Opinion 2017-6

Date:	12/27/2017
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving as Notary Public

Dear Assistant Clerk-Magistrate _____________:

This letter is in response to your request to the Committee dated October 26, 2017, seeking guidance as to whether or not notarizing documents in your capacity as an Assistant Clerk-Magistrate would violate the rules under the Clerk's Code.  Although your request specifically related to notarizing stipulations of parents in care and protection cases, including post-adoption/guardianship agreements, we have reviewed the propriety of notarizing documents in general, while you are performing your duties as an Assistant Clerk-Magistrate.

In considering your request, the Committee has reviewed the relevant Canons of the Code of Professional Responsibility for Clerks, including Canons 3, 4, and 5, as well as the Statute on Notaries Public, G. L. c. 222. 

Canon 3 of the Code requires a Clerk to devote the entire time during work hours to the duties of the office.  It is the Committee's opinion that notarizing documents in the course of your duties as an Assistant Clerk-Magistrate is a service reasonably related to your duties and provides a public service, and does not violate this Canon.  Canon 4 of the Code requires a Clerk-Magistrate to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch and prohibits partiality or the appearance of partiality.  The Committee believes that the act of notarization of a signature is by its definition an impartial act, requiring a separate acknowledgment of identification, and is not inconsistent with Canon 4.  Further, G. L. c. 222 provides particular guidelines to ensure the impartiality of a notary public.  It is the Committee's opinion that notarizing documents during the course of your duties as an Assistant Clerk-Magistrate does not create a separate business relationship as long as you do not derive any personal financial benefit from notarizing documents during court hours, and therefore, in these circumstances, is not problematic under Canon 4(C), Business Activities.  However, the Committee cautions you that accepting any form of payment for notarizing court documents during court business hours would, in the Committee's opinion, be a violation of Canon 4(C) and thus prohibited. 

Finally, although a notary public is an appointed office as set forth in Canon 5(E), it is our opinion that the activities of a notary public in the course of your duties as an Assistant Clerk-Magistrate improve the law, the legal system, and the administration of justice by facilitating the efficient process of the court. 

Therefore, after careful review of the relevant Canons of Ethics contained in the Code of Professional Responsibility for Clerks of the Courts as set forth in S.J.C. Rule 3:12, the Committee sees no reason why you would be prohibited from notarizing documents in the course of your duties at work.  However, the Committee cannot predict every situation that could come before a particular court, and whether notarization of a document in certain circumstances could impact the appearance of impartiality or have an unintended consequence to the court.  There may be policies in certain offices relating to notarizing documents and the Committee recommends that Assistant Clerks seek guidance from their superiors to ensure compliance with any established protocols and policies set by the Department Head. 

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