Opinion  Opinion 2019-4

Date:	10/23/2019
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Newly Appointed Clerk Magistrate Hearing Cases Brought by Police Department where Clerk used to Work

Dear Clerk _________:

I write in response to your request to the Committee dated October 4, 2019. You state that you are the newly appointed Clerk-Magistrate at the ________ Court. Before your appointment as Clerk, you were a detective lieutenant for 14 years in the police department of the town of _______, which is within the jurisdiction of the Court where you now are the Clerk-Magistrate.  You have worked for the town for 27 years. You ask the Committee's opinion on whether you can hear cases brought by that town.

The Committee considered your request at a recent meeting. It is the view of the Committee that your hearing criminal cases brought by the town of ______would conflict with the provisions in the Code of Professional Responsibility for Clerks of Court regarding impartiality and the appearance of impartiality. These provisions, which are necessary to preserve public confidence in the judicial system, would prevent you from hearing matters brought by your former colleagues and former department. Given your long tenure with the police department, the committee believes that your hearing criminal cases at this time could raise the appearance that you were partial to your former co-workers.

We recognize your good intentions to perform your duties professionally. As we have stated in the past however, "[T]he Canons are designed to operate prophylactically. The Rules do not await an actual impropriety nor do they depend upon recusal to solve conflicts where the situation is one which 'might reasonably create' them. A determination that they apply does not presume any lack of integrity by the Clerk." See Opinion # 2007-1.

The Committee also recognizes that any perception of your partiality to the town likely will diminish over time. Both the passage of time and changes in relationships and personnel in the town of ________ at some point will reduce the likelihood that your hearing criminal cases from the town would give rise to the appearance of partiality. A disclosure of your former relationship with the town, as permitted by Canon 4, then would be sufficient.

Christine P. Burak
Secretary, Advisory Committee on Ethical Opinions