Opinion

Opinion  Opinion 2019-6

Date: 11/18/2019
Organization: Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Table of Contents

Dear First Assistant Clerk __________,

This is in response to your request to the Committee dated October 23, 2019. You are the First Assistant Clerk in the _____________ Court. You asked whether you may join your local [legal aid campaign] Committee. You state that you were told that the requirements of a committee member are to "get people to come to the event...attend the event yourself...and support the campaign with a gift." You further note that the goals of the committee are to help promote [the legal aid organization] and to get people to attend a fundraiser event. [The organization], which may appear in the court where you serve, receives all the funds that are raised.  

Canon 5(B) of the Code addresses a Clerk's participation in civic and charitable activities, and provides that "A Clerk Magistrate may participate in civic and charitable activities that do not reflect adversely on the Clerk Magistrate's impartiality or interfere with the performance of his or her official duties. A Clerk Magistrate may serve as an officer, director, trustee, or non- legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(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, however, may call his or her employees' attention to a general fund raising campaign such as the Commonwealth of Massachusetts Employees Campaign . . ."

In prior opinions, the Committee has generally found civic and charitable activity by a Clerk to be permissible if the charitable organization and its members do not come before the court where the Clerk serves, the Clerk does not use the prestige of the office to advance the organization, and the Clerk does not use court time or resources for the civic or charitable work. See Opinion 2015-4.  It is the view of the Committee that whether you may be a member of the ___________ Committee would depend on whether there is a substantial likelihood that the committee or those associated with it would be engaged in proceedings that would ordinarily come before you or the court where you serve. You note that the recipient of the funds of the campaign may appear in the court where you serve but provide no details on the frequency of such appearances. Activities that involve a clerk with lawyers or others who are likely to come before the court where the clerk serves can tend to reflect adversely on the clerk's impartiality.  

With respect to fundraising activities, the Committee previously has cautioned that:

". . . a solicitation directed to lawyers, particularly those who appear in the court where you work, has the potential to violate the Code. It may open up the possibility that lawyers will want to discuss your letter and donation during the court's normal working hours. It also could give rise to the appearance that you were using the prestige of your office to encourage donations by lawyers, a practice strictly prohibited under ethical rules of Canon 5. Canon 5 also instructs Clerk-Magistrates to minimize the risk of conflict with official duties. These considerations lead us to the view that you should not participate in direct solicitation from lawyers who practice in your court. If soliciting a particular lawyer creates an issue as to impartiality, the Committee advises you to consult and comply with the provisions of Canon 4(E) on Disqualification." Opinion 2005-1

In the Committee's opinion, you may attend the event which supports access to justice. However, you may not solicit your staff or use the prestige of your office to solicit others to attend the event or make a donation.  As noted above, soliciting lawyers, especially those appearing in your court, would be problematic. Whether you may join the ____________ Committee depends on the nature, frequency and extent of the contact with the court where you work on the part of those involved in the campaign. We advise you that your participation could have implications under Canon 4(E) which may require your disqualification or disclosure on the record.

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

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