Opinion  Opinion 2024-3

Date:	04/19/2024
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Assistant clerk as potential witness.

Dear Assistant Clerk Magistrate ____,

This is in response to your email to the Advisory Committee on Ethical Opinions for Clerks of the Courts (“the Committee”) dated March 19, 2024.  In that email you informed the Committee that you are an Assistant Clerk Magistrate with one of the ___________ Courts. An individual not affiliated with the court system confided in you that she was a victim of an alleged indecent assault and battery.  You state that you did not provide legal advice but you did inquire whether she reported the matter to the police.  After her conversation with you, she reported the incident to the police and a criminal complaint is pending in one of the ________ Courts. This individual provided your name to the District Attorney’s Office and you expect the prosecution will want to talk with you as a potential first complaint witness.  You inquired whether there are any potential conflicts or issues as a potential witness considering your position as an Assistant Clerk Magistrate.

Pursuant to Canon 2 of the Code of Professional Responsibility for Clerks of the Courts (“the Code”) entitled “Compliance with statutes and rules of court”, a Clerk Magistrate shall comply with the laws of the Commonwealth, rules of court, and lawful directives of the several judicial authorities of the Commonwealth.  Your discussions with the Assistant District Attorney are not prohibited by the Code, which requires you to comply with the law.

We note provisions of the Code that would apply in any discussions. 

You should not convey the impression that any person is in a special position to influence you in your role as an assistant clerk magistrate, and you should discourage others from suggesting that they are in a special position to exert such influence.  See Canon 4 (A) of the Code, entitled “Impartiality and disqualification”.  You should therefore refrain from using your position and refrain from allowing others to use your position to the advantage of the alleged victim or prosecutors in this case.  It must be clear that you are not acting in your role as an Assistant Clerk or on behalf of the Clerk’s Office.  Also, you should not appear to be an advocate for the alleged victim and should make it clear that you are no longer practicing law.  (See Opinion 2023-3.)

With these provisos, the committee concludes that there is nothing in the Code that prohibits you with complying with the requests of the prosecution.

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