Opinion  Opinion 2022-2

Date:	04/07/2022
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

First Assistant Clerk-Magistrate requesting to serve as a member of Board of Directors for a national non-profit organization.

Dear First Assistant Clerk-Magistrate _____________:

This is in response to your email to the Committee dated February 17, 2022, requesting an opinion from the Committee on whether it is appropriate for you to serve on the Board of ___________________________.  The Secretary of the Committee previously advised you of the Committee’s opinion as time was of the essence.  This opinion confirms the advice that was given to you by telephone.  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 the First Assistant-Clerk in the _________ Division of the District Court. The Executive Director of ________ has invited you to join its Board.  You explain that ______, headquartered in Washington, DC, is a national nonprofit organization that advocates for the civil rights and liberties of __________.  __________ is one of ________ thirty-five regional offices and its website describes its Vision “to be a leading advocate for justice and mutual understanding.”  Its Mission is “to enhance the understanding of ______, encourage dialogue, protect civil liberties, empower _________, and build coalitions that promote justice and mutual understanding in Massachusetts.”  The work that _______ does includes filing civil rights claims against “biased employers, housing authorities and major corporations” to ensure the safety of the ________ community.

As stated on _________ website, its Principles are that ________:  “is committed to protecting the civil rights of all Americans, regardless of faith; supports domestic policies that promote civil rights, diversity and freedom of religion; opposes domestic policies that limit civil rights, permit racial, ethnic or religious profiling, infringe on due process, or that prevent _________ and others from participating fully in American civic life; is a natural ally of groups, religious or secular, that advocate justice and human rights in America and around the world; supports foreign policies that help create free and equitable trade, encourage human rights and promote representative government based on socio-economic justice; believes the active practice of ______ strengthens the social and religious fabric of our nation; condemns all acts of violence against civilians by any individual, group or state; advocates dialogue between faith communities both in America and worldwide; and supports equal and complementary rights and responsibilities for men and women.”  You indicate in your letter that ________ has __________ employees and its current Board Chair is a ___________________.

In considering your request, the Committee reviewed the provisions of Canon 4, and Canon 5.  Under Canon 4 (A), "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." Canon 5 (B) 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....”

As outlined above, Canon 4 and Canon 5 require that a Clerk-Magistrate shall perform his or her duties in a manner that promotes impartiality and public confidence.  A Clerk-Magistrate must not participate in activities that adversely affect his or her impartiality.  In your letter, you state that _________ files civil rights claims on behalf of plaintiffs against “biased employers, housing authorities and major corporations” to ensure the safety of the _________ community.  This statement in your letter categorizes _______ as an advocacy group for a particular cause which may adversely affect the appearance of your impartiality.  The role of advocate is not compatible with the duty of a clerk to be, and to appear to be, impartial.  Although you state that any claims filed by __________ would not be regularly filed in your court, there is the potential that such a claim would be filed in your court which could affect public confidence in your impartiality.

The Committee recognizes the benefits your service could provide to the _______ community.  However, given the principles of impartiality that underlie all the Canons, and the fact that Canons 4 and 5 in particular are directed to both actual and perceived impartiality, the Committee is of the opinion that your service on the Board of _________ in these circumstances would not be appropriate. 

Therefore, it is the opinion of the Committee that accepting a position on the _________ Board is prohibited under the code for the reasons set forth above.

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