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Opinion Opinion 92-6

Date: 09/29/1992
Organization: Massachusetts Supreme Judicial Court

Ethical Opinions for Clerks of the Courts

Serving as member and chairman of Board of Examiners for a City. Serving as executrix for estate of non-family member. Receiving referral fees arising from causes of action brought before being sworn in as assistant clerk.

Dear Clerk:

You wrote a letter to the Advisory Committee dated April 3, 1992, in which you requested the opinion of the Committee on certain issues based on your position as an assistant clerk for

Your first question is in regard to your appointment as a member and chairman of the Board of Examiners for the City of . You are the "attorney" member of the board, which also calls for the appointment of a duly licensed architect and another who is either a contractor or a person well qualified in the supervision of construction work with at least five years experience in the city. While Canon 3 of the Code of Professional Responsibility for Clerks of the Courts expressly prohibits you from the practice of law, there is no prohibition on filling a position that calls for an attorney where your experience and background are sought, but there is an assistant corporation counsel assigned to handle strictly legal matters. You must not be required to perform legal functions for the body, nor can you act as the body's attorney of record in any proceedings.

You asked whether you would be able to serve as an Executrix for the estate of a person who is not a member of your family. The only way you could serve as an executrix is if you were serving in that capacity prior to April 1, 1990, or where the testator or testatrix died before April 1, 1990. (See Canon 5(D)(2).) Therefore, based on the facts that you outlined, you will not be able to continue in your capacity as Executrix.

The third question you posed was whether you could keep on receiving referral fees that arise out of causes of action brought before you were sworn in as Assistant Clerk. We see no conflict with your receiving these fees so long as you are not providing any continuing legal work to earn them.

While there appears to be a long period of time between this response and your request for an opinion, you were informed of the opinions expressed in this letter earlier because of a time factor expressed in your letter.


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