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Ethical Opinions for Clerks of the Courts
In your letter of October 10, 1990, you request an advisory opinion by this Committee concerning whether you may, consistent with the Code of Professional Responsibility for Clerks of Court, continue to act as a guardian under an appointment made on November 20, 1967 by the _________ Probate Court. This fact situation appears to be governed by the April 1, 1990 amendment to Canon 5(D)(2), which as presently written, provides:
A Clerk-Magistrate may serve as an executor, administrator, trustee, guardian, or other fiduciary for the estate, trust, or person of one who is not a member of his or her family provided that the Clerk-Magistrate was acting in the fiduciary position prior to April 1, 1990, or that, in the case of a will designating the Clerk-Magistrate as a fiduciary, the testator or testatrix died prior to April 1, 1990. Such fiduciary activity shall not be permitted if it interferes with the proper performance of the Clerk-Magistrate's duties and shall be subject to the provisions of subsections 5(D)(1)(a) and (b) of this Code.
You stated that your activities, except for emergency phone calls, are conducted outside of normal court hours and that your accounts are on file with the ________ Court.. It does not appear that your guardianship duties interfere with the proper performance of your duties as Clerk-Magistrate, and under the "grandfather" provisions of Canon 5(D)(2), you may continue to serve as a guardian in this instance.