Opinion  Opinion 2019-3

Date:	06/03/2019
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Inquiring whether it is appropriate to continue to serve as a member of a charitable organization while serving as an Assistant Clerk Magistrate in the same jurisdiction.

Dear _________:

This letter is in response to your e-mail dated April 12, 2019 requesting an opinion from the Committee on whether or not it is appropriate pursuant to the Code of Professional Responsibility for Clerks of the Courts (hereinafter the Code) for you to continue serving as a member of the _________________, a Section 501 3(c) corporation that raises funds to provide awareness and educational programs to prevent violence and promote drug awareness in the surrounding towns and schools in the jurisdiction where you serve as an Assistant Clerk Magistrate. You indicate in your letter that you have worked in the _________ District Court for the past twenty-five years.  You were recently appointed as an Assistant Clerk Magistrate. You further indicate in your letter that you are a founding member of the ___________________. 

Paragraph (B) of Canon 5 of the Code addresses a Clerk-Magistrate’s involvement in civic and charitable activities.  Subject to the following limitations, such participation is generally permissible as long as the activities “do not reflect adversely on the Clerk-Magistrate’s impartiality or interfere with the performance of his or her official duties.”  Canon 5 further provides,

“(1) A Clerk-Magistrate shall not participate if there is a substantial likelihood that the organization, or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate or the court in which the Clerk-Magistrate serves.

(2) A Clerk-Magistrate may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose … A Clerk-Magistrate may attend but, except for an elected Clerk-Magistrate, shall not be a speaker or the guest of honor at an organization’s fund raising event …”

In the opinion of the Committee, provided that you do not solicit staff, do not use the prestige of the office to solicit funds and otherwise comply with the provisions of Canon 5 set forth above, serving as a member of the _______________ is permissible under the Code.  Consistent with Canon 5, there should be no reference to your position as an Assistant Clerk-Magistrate in any of the fund raising materials or activities.  In addition, you must further comply with the requirement of Canon 3 that Clerk-Magistrates devote the entire time during normal court hours to the duties of their office.  As long as you comply with the provisions of Canon 5 and Canon 3 of the Code, it is the opinion of the Committee that you may continue to serve as a Member of the ______________________ See Opinions 2013-4, 2005-5, 1994-12.

Should the _____________, any of the individuals with whom you serve on the ______________, or individuals whose donation to the _______________ could appear to impact your impartiality appear in the court where you work, the Committee advises you to comply with the provisions of Canon 4 (E) on Disqualification.

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