Opinion  Opinion 2022-1

Date:	02/09/2022
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Judicial Case Manager mediating cases brought by former law firm.

Dear __________________:

I write in response to your request to the Committee dated December 20, 2021. You are a Judicial Case Manager in the __________ Probate and Family Court and write regarding your Assistant Judicial Case Manager’s (hereinafter referred to as AJCM) handling of mediation/settlement conferences which involve [the AJCM’s] former law firm as counsel for one of the parties. You indicate that the AJCM has been employed with the trial court for seven (7) months. Your questions are: 

1. Does the AJCM have to withdraw from mediating/conferencing all cases involving ____ former law firm based on [the AJCM’s] prior employment in the law firm even if [the AJCM] has no prior knowledge of the case or the parties?

2. If so, for how long does the AJCM have to withdraw from mediating/conferencing cases where [the AJCM’s] former law firm is involved?

We note at the outset that although the Committee is not authorized to render opinions on questions relating to the conduct of persons other than the requesting Clerk-Magistrate, we view your request to the Committee as inquiring whether there are particular actions that you, as manager, should take to fulfill your duty under Canon 4 of the Code of Professional Responsibility for Clerks of the Courts (Code) to "perform the duties of Clerk-Magistrate impartially and . . . [to] act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government." Under Canon 3(B), your administrative responsibilities include the duty to "supervise subordinate personnel and arrange for their training." See Opinion 2016-2.

You indicate that under the Pathway Conferencing and Case Management Conference programs, cases are scheduled by the court for mediation/settlement discussions.  At these conferences no testimony is taken and no evidence is offered, however ACJMs are expected to engage in some form of conciliation or mediation process with the parties at these scheduled events. Cases are assigned to the AJCM that may involve ___ former law firm and or ___ former law partners. Based on the nature of these programs, we presume that many of the litigants may appear pro se.

You indicate that the current practice at the Court is that the AJCM reviews cases involving [the] former firm to determine if [the AJCM] has any familiarity with the case and/or the parties involved because of [the] relationship to the law firm as a former employee/limited partner.  If the AJCM has any familiarity with the case or the parties from ___ prior employment, the AJCM discloses this conflict and the case is assigned to another person. If the AJCM determines that [the AJCM] has no familiarity with the case or the parties from employment with the law firm, the AJCM discloses the fact of [the] former employment at the conference and if anyone has any objection to [the AJCM’s] mediating the matter, [the AJCM] will assign the mediation/settlement conference to another person. If the parties choose to move forward with the mediation/settlement conference after disclosure, you do not indicate in your letter whether the disclosure is made in writing, signed by all parties, and incorporated in the record pursuant to Canon 4 (E), but we accept that this is the current practice of the AJCM for purposes of these facts.

Given the ACJM’s employment by the law firm both as an associate and as a limited partner, the Committee believes at this time that the AJCM’s mediating/conciliating the cases brought by the former law firm would conflict with Canon 4(A) in the Code of Professional Responsibility for Clerks of Court regarding the appearance of impartiality. This Canon provides that “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.” In the Committee’s view, these provisions prevent the AJCM from participating in the mediation/conciliation process involving cases brought by former colleagues and a former law firm regardless of whether or not the AJCM worked on the cases while employed with the law firm.

The Committee is of the opinion that the AJCM’s participation in the mediation/conciliation process of cases involving a former law firm at this time could raise the appearance that the AJCM is partial to the former law firm and former colleagues.  See Opinion # 2019-4. (Committee advised that newly appointed Clerk Magistrate should not hear cases brought by Police Department where Clerk Magistrate used to work).

It is the further opinion of the Committee that at this time disclosures of the AJCM’s prior affiliation with ____ former firm or of the fact that [the AJCM] may not have any familiarity with the case or the parties, will not be sufficient pursuant to Canon 4(E) since ___ participation in the process could nevertheless give rise to the appearance of partiality. See Opinion # 2019-5. (Committee advised that Clerk-Magistrate should not hear cases or sit in courtroom when cases are brought by an Attorney who is the Clerk-Magistrate’s close friend.)

The Committee recognizes that any perception of the AJCM’s partiality to [the] former law firm will likely diminish over time. However, we are unable to establish any bright line as to when that may occur since there are many factors that weigh into the analysis. Your letter does not provide any facts as to the size of the law firm, how long the AJCM practiced at the firm, and whether the AJCM maintains close personal friendships with any of the lawyers at the law firm. Although the passage of time and changes in relationships and attorneys and personnel at the law firm will at some point reduce the likelihood of an appearance of partiality, these determinations must be made on a case-by-case basis. See Opinion #2019-4 (Committee recognized that any perception of partiality to Clerk-Magistrate’s former employer could diminish over time). However, at this time, the AJCM has only been employed by the trial court for (7) seven months.

It should be noted that the Committee only advises as to matters within the Code of Professional Responsibility for Clerks of the Courts. The Committee does not address any matters within the purview of the conflict-of-interest laws.

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