Opinion  Opinion 2023-3

Date:	06/13/2023
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant Clerk Magistrate writing an affidavit on behalf of a former client.

Dear Assistant Clerk Magistrate ______,

This is in response to your email to the Committee dated May 8, 2023, requesting an opinion from the Committee on whether it is appropriate for you to write an affidavit on behalf of a former client regarding the circumstances surrounding a dismissal of his District Court case in 2014. You currently are an Assistant Clerk Magistrate. Your former client would like to submit the affidavit to a potential employer who denied him employment based on a “background check.”  

The Committee discussed this request at a recent meeting. In considering your request, the Committee reviewed the provisions of Canon 4 which requires a clerk magistrate to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.” It is the opinion of the Committee that executing an affidavit on behalf of a former client describing the circumstances surrounding the dismissal of his criminal case would not be prohibited by the Code provided that the affidavit is objective and factual. You should not appear to be an advocate for your former client and should make it clear that you are no longer practicing law. (See Opinion 1997-6, Testifying before the Board of Bar Overseers as a character witness is not prohibited by the Code of Professional Responsibility for Clerks of the Courts.)  

Under Canon 4A, “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.” Therefore, if you execute an affidavit on behalf of your former client, it must be clear that you are not acting in your role as an Assistant Clerk or on behalf of the Clerk’s Office. Accordingly, it would be inappropriate for you to use letterhead from the Clerk’s Office or to endorse a letter or execute an affidavit in your capacity as a Clerk Magistrate.

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.

Sincerely,
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions for Clerks of the Courts