Opinion  Opinion 2021-2

Date:	05/07/2021
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

An Assistant Clerk Magistrate is receiving payment agreements/settlement payments arising from collection cases when working at his law firm prior to being sworn in.

Dear Assistant Clerk Magistrate ________________,

This letter is in response to your email to the Committee dated April 7, 2021. You recently took the position of assistant clerk magistrate in the ______________ Court. You indicate that you are in the process of winding down your law practice by turning over pending cases to your former law partner and another attorney in your former office. Prior to leaving the practice of law you did a small amount of collection cases, some of which resulted in monthly payment plans and/or future settlement payments. You ask if you “can continue to receive the monthly payments/settlement payments and pay myself the contingency payment” and then “send a statement to the client”. You also ask whether you can be the person who “returns and files any judgment as satisfied with the court for any of these cases” or whether your former law partner should file this paperwork.”

In Opinion 2020-4 the Committee found no conflict with a former attorney, now an assistant clerk, receiving referral fees so long as the attorney was not providing any continuing legal work to earn them, restating the Committee’s previous reasoning in Opinion 92-6. It is the Committee’s position that the situation you describe is different from simply receiving previously earned referral fees.

Your situation is more akin to acting as an escrow agent for creditors as you are collecting their debt, taking your fee, and then sending the balance to the creditor along with an accounting. This Committee has addressed acting as an escrow in 97-5, stating that acting as an escrow agent violates Canon 3 of the Code which prohibits the practice of law. The Committee views your filing satisfied judgments with the various courts in which you had previously practiced as also involving the practice of law which violates the prohibition set forth in Canon 3.

It is the opinion of the Committee that your passive receipt of these fees that arise from the payment agreements/settlement payments would not violate the Code so long as your former law partner or other attorney collected the funds from the debtor and performed all the administrative functions that you describe, and the firm then sent you any fees that were owed to you based on work that you previously performed.

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