Opinion  Opinion 2019-1

Date:	01/07/2019
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

First Assistant Clerk-Magistrate's serving as an after-hours Bail Magistrate in county where spouse is an Assistant District Attorney

Dear First Assistant Clerk-Magistrate _______:

This Opinion is in response to your December 19, 2018 email to Christine Burak, SJC Legal Counsel to the Chief Justice and Secretary to the Advisory Committee on Ethical Opinions for Clerks of the Courts.  You relate that you are the First Assistant Clerk-Magistrate of the _____ Court, and request guidance relative to a position offered to you as an after-hours Bail Magistrate in [another] County.  Notably, you disclose that your wife is presently employed as an Assistant District Attorney with the [other] County District Attorney's Office, and that in her present position she often supervises Assistant District Attorneys stationed in the various District Courts in [the other] County and has considerable input into their cases, including but not limited to, the amount of bail (if any) to be requested by the Commonwealth at the time of arraignment.

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.  Section (A) of the Canon that addresses the “Appearance of Impartiality” states,  “ 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.”

A Bail Magistrate's duties include substantively determining and setting a defendant’s bail and conditions of release.  Since your wife is an Assistant District Attorney in [the] County where you would be serving, it is the Committee’s opinion that your relationship conveys an impression that the District Attorney’s Office might be in a special position to influence your setting bail as Bail Magistrate in [that County].  (With respect to the duties of Bail Magistrates that are purely ministerial, i.e., collecting an amount set by the judge and completing paperwork, the same concerns regarding appearance of partiality do not apply.)

Further, this Committee also considered the Rules Governing Persons Authorized to Admit to Bail Out of Court, effective July 1, 2014, as well as the Draft Trial Court Bail Rules dated April 24, 2018.  Rule 20 of the Rules Governing Persons Authorized to Admit to Bail Out of Court states, “A bail magistrate shall perform the duties impartially, with dignity and in a manner that befits the performance of a judicial act.”  Rule 21 of the Draft Trial Court Bail Rules states, “Bail Magistrates or Bail Commissioners shall not act in a manner that would cause a reasonable person to think that they would show favor toward someone, or that they can be improperly influenced or that relationships and/or affiliations could prevent them from acting fairly and objectively when they release defendants from custody after court hours."

It is the opinion of this Committee, after review of Canon 4 of the Code of Professional Responsibility for Clerks of the Courts, the Rules Governing Persons Authorized to Admit to Bail Out of Court effective July 1, 2014, and the Draft Trial Court Bail Rules dated April 24, 2018, that as a Bail Magistrate serving _____ County while at the same time married to an Assistant District Attorney serving in the same jurisdiction, your relationship creates an impression that you could be improperly influenced or prevented from acting fairly and objectively.

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