Opinion  Opinion 2018-1

Date:	03/30/2018
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Clerk's conflict with spouse's duties as Assistant District Attorney

Dear Clerk-Magistrate ___________:

This Opinion is in response to your letter to the Committee dated January 30, 2018. You are the Clerk-Magistrate for the ___________ Court. You are seeking guidance with regard to the assignments of an Assistant Clerk in your office who is married to an Assistant District Attorney in the same county and jurisdiction of your court. In your letter, you list the daily specific duties that are required of this Assistant Clerk who is assigned as a session clerk in a criminal session. You state that the Assistant Clerk's role as a session clerk is entirely administrative in nature. You specified that unlike an Assistant Clerk in the District Court, this Assistant Clerk does not make probable cause determinations, does not review or approve search warrants, and does not set bails. In addition, you state that the Assistant Clerk is never assigned to a session where the Assistant Clerks' spouse is scheduled to appear and does not participate in any case that the spouse is prosecuting. You further clarified that the ADA supervises five to seven ADAs who occasionally appear in the session where the Assistant Clerk is assigned. 

In your letter, you reference Opinions 2017-3 and 2017-4, which address issues of potential conflict involving a spouse where an Assistant Clerk is performing adjudicatory or magisterial functions.  As a manager, you have asked the Committee whether those two opinions extend to your assignment of your Assistant Clerk as a Superior Court session clerk who performs only administrative functions. In addition, you ask two specific questions: "Do the Assistant Clerk's current duties as a session clerk as outlined disqualify her from working in a criminal session in [      ] County because the Assistant Clerk is married to an ADA?"  Or, "In the alternative, may the Assistant Clerk make a disclosure in writing, entered on the record, as contemplated under Canon 4?" 

In formulating our Opinion, the Committee focused on Canon 4 of the Code of Professional Responsibility for Clerks of the Courts which specifically addresses Impartiality and Disqualification. This Canon states 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." More specifically, Canon 4(E) states in part that, "A Clerk-Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk Magistrate's impartiality might reasonably be questioned."

Although the Assistant Clerk in your office is not performing adjudicatory duties in session assignments, the Committee is concerned that the Assistant Clerk's spouse works as a representative of the Commonwealth in the court where the Assistant Clerk is assigned. Although we do not question the integrity of either party, this relationship could give rise to the appearance of partiality, thus implicating Canon 4(A). In previous opinions involving matters relating to a family member, the Committee has often opined that, "the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts." See Opinions 2007-3, 2013-2, 2013-7, and 2015-6.

In reviewing your request, the Committee notes the important distinction that the Assistant Clerk in your office is not serving in any adjudicatory capacity. It is the opinion of the Committee that the Assistant Clerk may continue to work as a session clerk in your office, performing administrative and ministerial duties subject to the following, but should be disqualified from working on any matter to which her spouse is assigned. See Canon 4A. 

As to those ADAs who are supervised by the Assistant Clerk's spouse, and assuming that the spouse's managerial involvement does not include appearing in the courtroom, a majority of the Committee thinks that disclosure would be sufficient. In Opinion 2017-3, we considered whether an Assistant Clerk acting as a Clerk-Magistrate and "making probable cause determinations following arrests, conducting show cause hearings," and perhaps acting as a session clerk, was disqualified from acting on matters involving her spouse, a CPCS attorney. In pertinent part, we observed that, "should your spouse have a supervisory or other role involving a matter or a lawyer appearing in your court, your recusal may be required." This was because a "managerial or supervisory role that would give your spouse a direct interest in matters coming before the court where you serve would require your recusal." The present situation, however, is distinguishable because the Assistant Clerk does not serve as a Magistrate, makes no probable cause determinations, and does not conduct show cause hearings.  Canon 4(E) requires disqualification of a Clerk "serving in an adjudicative capacity" (emphasis added). A majority of the Committee believes that in this instance, Canon 4(A) should be interpreted in light of the qualifying language of Canon 4(E). We emphasize, however, that should the Assistant Clerk exercise adjudicative powers, that recusal, not merely disclosure, would be required.   

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