Opinion  Opinion 2021-4

Date:	10/06/2021
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

An Assistant Clerk Magistrate volunteering to give seminars advising Massachusetts citizens of their rights during police interactions.

Dear Assistant Clerk Magistrate _________:

This is in response to your email to the Committee dated September 9, 2021 requesting an opinion from the Committee on whether it is appropriate for you to participate in a seminar, the purpose of which is to advise Massachusetts citizens of their rights during police interactions in their community, as a lecturer.  Please note that this Advisory Committee is authorized to render opinions with respect to the Code of Professional Responsibility for Clerks of the Courts, and this opinion is limited to the Committee’s consideration of your request as it relates to that Code.

In your email, you state that you are an Assistant Clerk Magistrate in the ______ Division of the ________________ Court. Prior to your current position, you worked in criminal defense.  You asked whether you could volunteer your time and give a seminar advising Massachusetts citizens of their rights during police interactions with the community.  Specifically, you would respond to questions and issues, including but not limited to the following: What is legal or illegal behavior for citizens and the police during motor vehicle stops? If citizen’s rights are violated by the police, what is their recourse? The participants of the seminar, as far as you know, reside outside of the jurisdiction you currently work in and you would not be compensated for the event.

he Committee considered your request at a recent meeting.  In considering your request, the Committee reviewed the provisions of Canon 3, Canon 4, and Canon 5.

In Opinion No.95-6 the Committee recognized that as a Clerk Magistrate there is a wide range of information that clerks can and should provide to the public, and they are uniquely qualified to do so.  In that opinion, the Committee also acknowledged scenarios in which specific conduct would violate Canon 3 and Canon 4. Canon 3 states that a Clerk Magistrate shall not engage in the practice of law.  The primary purpose of the Canon is to ensure that court employees do not practice law for private clients, whether or not for a fee. It is the Committee’s view that advising citizens of their rights concerning interactions with the police and counseling them on legal recourse is activity prohibited by Canon 3 as one could reasonably conclude that you were giving legal advice. The nature of the seminar seems to cross a line between informing and counseling, especially because it focuses on police action.  

In Opinion No.2015-1 we stated in our opinion that participation in a training for trial lawyers is guided by Canon 4. It is the view of the Committee that participation in a seminar where you would advise citizens of their legal right relative to interactions with the police is similarly addressed by Canon 4.  Canon 4 (D), Activities to Improve the Law, encourages Clerk Magistrates to “engage in activity to improve the law, the legal system, or the administration of justice.” Canon 4 of the Code, Impartiality and Disqualification, states: “A Clerk Magistrate shall perform the duties of Clerk Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.” Canon 4(B) Personal Affairs states as follows: “A Clerk Magistrate shall conduct personal affairs in such a way as not to cause public disrespect for the court and the judicial system. A Clerk Magistrate shall not engage in activities nor incur obligations which would tend to detract from the dignity of the Clerk Magistrate's office or interfere or appear to interfere with official duty.  A Clerk Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk Magistrate in any official capacity.”

The Committee also reviewed the provisions of Canon 5. Canon 5 states, “A Clerk- Magistrate should not engage in activities which might detract from the dignity of the office of the Clerk Magistrate or interfere with the performance of the duties of the office.” Canon 5(B) of the Code addresses a Clerk's participation in civic and charitable activities, and provides, in relevant 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. . . “ Similarly, Canon 5, Outside Activities, prohibits a Clerk Magistrate from engaging in activities which might “interfere with the performance of the duties of the office.”

As outlined above, Canons 4 and 5 require that a Clerk Magistrate shall perform his or her duties in a manner that promote impartiality and public confidence. A Clerk Magistrate must not participate in activities that adversely affect his or her impartiality. In your scenario, advising citizens relative to recourse against the police is prohibited by Canons 4 and 5 as such participation would cast doubt on your capacity to be impartial.

Therefore, it is the opinion of the Committee that your participation as a lecturer for this seminar is prohibited under the Code for the reasons set forth above.

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