Opinion  Opinion 2020-3

Date:	08/13/2020
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving on a Board involving youth who come to the Court

Dear Assistant Clerk ______________:

This letter is in response to your request for an opinion on the following situation. You are an Assistant Clerk in the ___________ Court and have been asked to serve on the board of directors of a charter public high school which is located in the jurisdiction of the court where you work. The school serves students who have not succeeded in traditional school, including youth who have dropped out or are at risk of leaving school. You write that there are children who attend the school who come before the court where you work and come before you at magistrate hearings. You inquire whether your serving on the board is permissible under the Code of Professional Responsibility for Clerks of the Courts.

As you note, Canon 5B addresses a Clerk's participation in civic and charitable activities. That canon provides, in part, 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.... (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." 

The provisions of Canon 4 (A) are also relevant. "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." 

The Committee is concerned that your service on the board of directors could reflect on your impartiality and, through you, the impartiality of the court in cases involving children from the school who appear before you or the court. When youth from the school appear in the court where you work, your service as a member of the board of directors may identify you with the interests of the board and the school, which could give rise to the impression that you or the court may not be impartial in these matters. See Opinion 99-4. The facts that the school is located in the jurisdiction of your court and that the ___________ Court would be a likely forum for matters involving students from the school, lead the Committee to believe that your service as a board member could affect the appearance of your impartiality and that of others in the court in proceedings involving students from the school. In these circumstances, it is the Committee's view that your recusal would not be sufficient to remedy this possible appearance of partiality.  

The Committee is aware of the benefits to the community and to the school that your service on the board could provide, and recognizes your good intentions in wanting to serve on the board. However, given that the principles of impartiality that underlie all the canons, and canons 4 and 5 in particular, are directed to both actual and perceived impartiality, the Committee believes that your service in these circumstances would not be appropriate.   

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