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Ethical Opinions for Clerks of the Courts
This is in response to your letter of September 8 , 1995, in which you request advice from the Committee on a number of questions concerning the practice of law. You are the Register of Probate in the _________ Division of the Probate and Family Court Department. You refer the Committee to S.J.C. Rule 3:02(2) which prohibits all Clerks of Court, Registers of Probate and the Land Court Recorder, and their assistants and employees from "engaging in the practice of law during the time they hold such office or employment."
Your employees, clerks and assistant registers have asked you to define what constitutes the practice of law pursuant to the rule. You ask this Committee: "
You further ask that, if the prohibition is interpreted in the broader context, the Committee provide guidance on the parameters of what constitutes legal practice. You describe five scenarios concerning which you request specific guidance. The scenarios,which we set forth below, are examples of situations which occur daily at the divisions in your department. With respect to each of the examples, you ask whether the Committee's interpretation of the "practice of law" would differ if the registry employee were responding to an attorney rather than a pro se litigant.The five scenarios follow.
I. In response to a litigant's inquiry, a registry employee will suggest "the best" or "preferred" manner in which the litigant can proceed in the action.
Scenario 1: A grandmother comes to the counter to ask for help; she wants her grandson to come and live with her because the child's mother is addicted to drugs and unable to care for the son. The child's father is dead and has left money for the child but mother is spending it quickly on drugs. The registry employee tells the grandmother what the possibilities are with regard to filing a petition for guardianship of a minor of the person and the estate, or just the person and explains the need for filing a bond and the various types of sureties on the bond. After asking a few more questions of the grandmother, the registry employee suggests she file a guardianship of minor of the person and the estate, and a bond with sureties.
II. In response to a litigant's inquiry, the registry employee will advise the litigant of the options available to them and procedures which the litigant should follow.
Scenario 2: A husband calls the court to ask for no- fault divorce forms and when the registry employee asks which type of no-fault divorce, the husband responds he didn't know there was more than one. The registry employee distinguishes the Joint Petition for Divorce, Irretrievable Breakdown pursuant to c. 208 , §lA, and the Complaint for Divorce used for Irretrievable Breakdown pursuant to c. 208 , §lB, as well as the fault divorces. The registry employee further enumerates the forms and materials required for each type and outlines the process and time lines for the two Irretrievable Breakdown actions.
III. In a typical incident of "counter assistance," the registry employee may do any or all of the following: explain terminology used in forms and the descriptions of the legal process; advise how to complete the form; actually complete the form; or explain a registry practice, i.e., marking up motions, or making service.
Scenario 3 : A pro se litigant arrives at the counter saying her former husband is not paying the medical bills for her children as he was ordered in the divorce judgment. She has no money, speaks with an accent, and says the collection agency is threatening to bring her to court. She asks what she can do to make her former husband pay these bills. The registry employee gives her a complaint for contempt form and tells her to fill it out. The litigant begins to ask questions about the form, and the registry employee recognizes the litigant is illiterate. The registry employee reads the information requests on the form and fills it out quoting the plaintiff. The registry employee files the complaint and gives a copy of it along with a summons to the litigant and tells her how it should be served.
Scenario 4 : A Vietnamese mother comes to the counter with bandages on her arms and face, two children bearing bruises on their arms and legs, and another woman. The mother wants to file a Complaint for Protection from Abuse, and to keep her address secret from her boyfriend. She speaks no English, and the woman with her speaks English but can not write it. The registry employee, through the English-speaking friend, asks the questions on the form and completes the form. Again, through the interpreter, the registry employee asks for a description of the incident of violence, and completes the affidavit based upon what the interpreter states.
Scenario 5: Pro se parties have come to the court for a wife's motion for temporary support in a Complaint for Civil Support action. The judge had referred them to the Family Service Office asking that financial statements be completed for each party. The Probation Officer learns that the wife has previously paid all the bills and kept the accounts because the husband cannot add and subtract. The Probation Officer asks the husband the questions on the financial statement, writes the answers, and gives the completed financial statement to the husband for signature.
We note at the beginning of our discussion, that although you refer the Committee to the prohibition on the practice of law contained in S.J.C. Rule 3:02, this Committee is only empowered and charged with interpreting the Code of Professional Responsibility for Clerks of Court. Canon 3 of that Code, however, provides similarly that "[A ] Clerk-Magistrate shall not engage in the practice of law".
The Committee reads Canon 3's primary purpose as assuring that court employees do not practice law for private clients, whether or not for a fee, either during or after their normal hours of employment by the Court. Such a prohibition both assures that court employees devote their full time to their duties, see Canon 3 and that they avoid private business dealings which could suggest a lack of impartiality in their role as court employees. See Canons 4(C) and 5(C)(1. It is, in the Committee's view, an integral part of a court employee's mandate to be sufficiently skilled and qualified to provide service to litigants and their attorneys in their dealings with the Courts, and we do not read this Canon to suggest or require otherwise.We do recognize that the Canons, in particular Canons 4 and 5, require clerks to remain impartial, and we can conceive of situations where the degree of advocacy-oriented assistance provided to a litigant would not only call these Canons into operation but possibly raise the risk that the litigant would unjustifiably rely upon a clerk's advice as he or she might that of an attorney, potentially implicating Canon 3 under a far narrower construction directed at preventing this type of consequence. As with questions regarding the "unauthorized practice of law" in other contexts, such determinations are necessarily made on the facts of each case. See In the Matter of the Shoe Manufacturers Protective Assn., Inc., 295 Mass. 369, 372 (1936).
With these interpretations in mind, we have reviewed the five scenarios. Each involves court employees being asked for assistance in the context of their jobs. In general, the assistance needed is advice concerning court procedures. In several scenarios, the assistance involves the completion of forms for a pro se litigant. In our opinion, the employees providing the assistance described in scenarios 2 , 4 , and 5 would not constitute the practice of law in violation of Canon 3 (or S.J.C. Rule 3 :0 2 ). Our response on this issue would not differ if the requests for assistance were made by an attorney rather than a pro se litigant.
Under a literal reading of scenario 1, we perceive potential problems. In your description of this scenario, the clerk not only identifies and describes options and provides appropriate forms and assistance in completing them, but recommends or chooses the specific manner in which the litigant should proceed. We recommend that court employees provide such guidance and information as allows the litigant to make an informed choice among procedures, leaving however, the decision to the litigant.
Portions of scenario 3 are also troublesome for similar reasons. In that scenario, in response to an inquiry from' a pro se litigant, the "registry employee gives her a complaint for contempt form and tells her to fill it out." Again, in our view, it is not the role of a court employee to advise a litigant to bring a problem before the court or to suggest the specific manner of proceeding. The litigants must decide for themselves whether and how to proceed. Prior to making these decisions, however, they are entitled to receive a wide range of assistance and guidance from court employees. :
You should be aware that other provisions of the Code may also be implicated in these scenarios and in other circumstances when assistance is requested from court employees. One of the principal themes underlying the canons of the Code of Professional Responsibility for Clerks of the Courts is the principle of impartiality. Your employees should be reminded that in providing help they must be evenhanded. Under Canon 4 , they must be and appear to be impartial at all times They must provide guidance and assistance in an equitable way to all parties to a proceeding.
In the opinion of the Committee, providing assistance with filling out forms and offering procedural advice clearly do not run afoul of the prohibition on the practice of law. Drafting documents, taking over a case and becoming an advocate on behalf of a litigant would clearly violate the prohibition. Other situations may need to be addressed on a case by case basis.