Opinion  Opinion 2019-5

Date:	11/08/2019
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Appointed Clerk-Magistrate Hearing Cases Brought by an Attorney who is also a Close Friend

Dear _________:

This is in response to your request to the Committee dated September 30, 2019.  You are a Clerk-Magistrate of a __________ Court and a member of the Massachusetts bar. You state that you have a friendship with another lawyer who retired as police chief in a town within the jurisdiction of the court where you serve. You write that "[s]ince he retired, we have socialized publicly on many occasions; gone on fishing trips, had lunch at local restaurants, been to each other's home, and recently attended a retirement party. He has performed legal services for my wife and me, and my daughter, for which he was paid. The fact of our friendship is well known to my staff, local police officers, and members of the public."  Your friend has represented clients in the court where you serve but never in a proceeding in which you were present or exercised any adjudicatory responsibility. Recently this friend has combined his practice with a lawyer who is also a retired police chief from a town within the jurisdiction of your court. You acknowledge that you should not hear matters in which a litigant is represented by your friend because your impartiality would be in question, and ask the following specific questions about this situation.  

1) Would my assistant clerk-magistrate be able to hear such matters (she denies any factors that would cause her impartiality to be questioned), or would my familiarity with my friend, the lawyer, taint the appearance of impartiality in this court such that those matters would need to be transferred to another court?  

It is the Committee's view that your assistant clerk would be able to hear matters involving your friend and the new law partner of your friend.   However, because your friendship is well known to your staff, many others and members of the public, it is appropriate under the Code for your assistant clerk to consult and comply with the provisions of Canon 4(e) on disclosure in hearing these matters. And if the Assistant Clerk herself has a relationship with your friend or his new law partner that would call her impartiality into question, Canon 4(e) would also require disclosure.

2) Would the fact that the new law partner appeared in this court for one of their clients (and my friend did not) make any difference in the analysis of the appearance of impartiality? 

The Committee finds that in light of the close personal relationship you describe, you should not hear any cases brought by your friend's new law partner. Your inquiry suggests that you are aware of the importance of promoting public confidence in the courts by protecting your impartiality and the appearance of your impartiality. Although your letter does not describe your relationship with the new law partner, given your friend's economic interest in his cases, and the public nature of your relationship with your friend, in the Committee's view you should not hear cases brought by your friend's new law partner.  

3) I believe, from my reading of the Committee's opinions numbered 2017-4, 2013-7 and 2013-2, that the ethical issue presented by these facts cannot be cured by a disclosure of the facts to all parties to a case and the obtaining their consent to my hearing it. Does the Committee concur? 

The Committee agrees that given the closeness of the relationship between you and your friend, and the public nature of that relationship, your hearing cases brought by your friend could give rise to an appearance of partiality, even if you were to disclose the relationship, so that disclosure would not be sufficient.

4) Does the appearance of potential bias bar me from attending a session as a sessions clerk, where my friend's case is heard, mindful that the matter was recorded and my only involvement would be to mark the docket?

In the view of the Committee, the appearance of impartiality required by the Code is best protected if you refrain from any involvement in matters brought by your close friend, even if your role is that of a sessions clerk. As the Committee has previously stated, “the hallmark of an independent judiciary is its neutrality” and that, “to ensure the integrity of the judicial system, it must not only be beyond suspicion but must appear to be so." Citing Mass. Bar Assn. v. Cronin, 351 Mass. 321, 326 (1966). See Opinion No. 2006-2.

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