Opinion  Opinion 2018-3

Date:	06/27/2018
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Answering inquiries from U.S. Attorney's Office based on past service on civilian oversight board

Dear ___________:

This is in response to your request of May 9, 2018, seeking advice on the following situation.  You are an Assistant Clerk in the __________ Court.  Before you became an Assistant Clerk, you were Chair of the Community Police Hearing Board (CPHB) in the city where the court you currently serve is located. You state that the CPHB is a civilian oversight board charged with reviewing and recommending discipline of police officers, where warranted, on all civilian complaints involving allegations of harassment, use of unreasonable or excessive force, use of language that is insulting, demeaning or humiliating, discriminatory treatment based on a person's race, religion, national origin, sex, age, sexual orientation or disability, or retaliation against a person for filing a citizen's complaint. You served on the board, on a volunteer basis, for over a year, stepping down when you became an Assistant Clerk. The United States Attorney's office is investigating a unit in the __________ police department and would like to speak with you as a former member of the CPHB to learn your perspective on the department.  You ask whether it would be appropriate for you to answer questions from the U.S. Attorney's Office. 

Because you required a quick reply to your question, the Secretary called you on May 14, 2018, to inform you on an emergency basis (see Committee Rule 5) that in the opinion of the committee chair and several members, there was nothing in the Code that expressly barred you from speaking with the U.S. Attorney's Office. Doing so, however, could have a bearing on your ability to handle criminal cases in the future. You were advised to contact the _________ Court administrative office to seek further guidance.

In this opinion, the committee confirms the advice that you were given on an emergency basis. There is no provision in the Code of Professional Responsibility for Clerks of the Courts that would prohibit your communication with the U.S. Attorney's Office in this instance. However, although the Code has no specific prohibition of such communication, the provisions regarding impartiality and appearance of impartiality could have a bearing on the future impact of any such communication. Fundamental to all the provisions of the Code is the need for impartiality, addressed explicitly in Canons 4 and 5. These provisions require that Clerks both be impartial and appear to be impartial. In the committee's view, your speaking with the U.S. Attorney's Office in connection with an investigation of the __________ police department may have an impact on your ability to work on criminal matters in the future. The suggestion that you have a view concerning the police could compromise the appearance of impartiality in matters where those police officers appear in court proceedings, leading to the need for you to recuse yourself in a large number of cases. For this reason, the committee repeats its previous suggestion that you contact the administrative office to seek guidance on this issue.            

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