Opinion  Opinion 2024-6

Date:	06/26/2024
Organization:	Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Submitting a letter on behalf of a former client for purposes of sentencing in a criminal matter.

Dear Assistant Clerk ___________________,

This letter responds to your email to the Committee.  You are an Assistant Clerk in the _________ Court.  You wrote that prior to your appointment as an Assistant Clerk, you operated a small private practice and were certified by the Committee for Public Counsel Services to accept appointments to represent indigent individuals in the ________ Court.  Approximately 20 years ago, you were assigned to represent ______minors in a care and protection proceeding in the ______ Juvenile Court.  You remained in contact with [a former client] ______ who is now an adult and a defendant in a criminal matter in Superior Court.  Her attorney hired a licensed social worker to prepare a mitigation report to present to the Judge for purposes of sentencing.  Your former client and the social worker asked you to write a letter on her behalf.  You are now inquiring whether you would be permitted to do so under the Code of Professional Responsibility for Clerks of Court.

It is the opinion of the Committee that your submission of such a letter in these circumstances would not be appropriate under the Code of Professional Responsibility for Clerks of the Courts.  In prior opinions, the Committee has stated that the Code prohibits a Clerk from providing letters of recommendation in pending or impending court proceedings.  (See Opinion 2013-6, where the Committee found that a Clerk providing a letter of recommendation on behalf of a court officer whose criminal charges had not yet been dismissed would not be appropriate under the Code).  In the view of the Committee, where the criminal case against your former client remains pending, the submission of a letter of support in connection with sentencing could be construed as interference with the official duty of another court, in violation of Canon 4 (B).  This Canon states, "A Clerk-Magistrate shall conduct personal affairs in such a way as not to cause public disrespect for the court and the judicial system.  A Clerk-Magistrate shall not engage in activities, nor incur obligations which would tend to detract from the dignity of the Clerk-Magistrate's office or interfere or appear to interfere with official duty …"

Further, a letter in support from a Clerk may create an appearance of partiality in violation of Canon 4 (A).  (See Opinion 99-2, where submission of a letter of recommendation for a friend’s son who was a defendant in a rape of a child case intended to be used as part of a pending pre-trial plea-bargaining appearance was a violation of the Code). We also note that Canon 3(A)(7) states:

"A Clerk-Magistrate should … abstain from public comment about any pending or impending proceeding in any court…"

Although in some circumstances a letter of recommendation or support from a Clerk would not be inconsistent with the Code, where a criminal case is still pending, it is the Committee’s view that your submission of such a letter would not be appropriate.

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