Opinion  Opinion 2022-5

Date:	10/28/2022
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

An Assistant Clerk serving on a team consulting with police and mental health professionals on threats against a group or institution.

Dear _________________:

This is in response to your email to the Committee dated December 9, 2022, requesting an opinion from the Committee on whether it is appropriate for you to serve on a multidisciplinary behavioral threat assessment team where you would be consulting with police and mental health professionals on incidents where threats had been made against a group or an institution. It is a new program geared toward providing services to persons who have made statements or threats of harm to others. In your email, you state that you are an Assistant Clerk in ___________________ Court. You maintain that if one of the incidents to which you were assigned came before the court, the clerk or the first assistant clerk would handle it and you would not participate.    

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 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 you acknowledged in your email, under Canon 5 (B) (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.” 

As outlined above, Canon 4 and Canon 5 require that a Clerk-Magistrate 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.

The Committee is concerned that your service on this team could reflect on your impartiality and, through you, the impartiality of the court in cases involving the police departments and mental health professionals with whom you consult and those to whom services have been provided as a result of making statements of harm to others. See Opinions 2022-2, 2020-3. 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 your service could provide to the community and recognizes your good intentions in wanting to serve on this team. However, given the principles of both actual and perceived impartiality that underlie all of the Canons, and Canons 4 and 5 in particular, the Committee is of the opinion that your service on this team in these circumstances would not be appropriate. 

Therefore, it is the opinion of the Committee that accepting a position on this multidisciplinary behavioral threat assessment team is prohibited under the Code for the reasons set forth above.

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