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Supreme Judicial Court Rules Supreme Judicial Court Rule 3:12: Code of Professional Responsibility for Clerks of the Courts
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Table of Contents
Canon 1. Purpose and applicability
This Code shall be known as the "Code of Professional Responsibility for Clerks of the Courts of the Commonwealth of Massachusetts." Its purpose is to define norms of conduct and practice appropriate to persons serving in the positions covered by the Code and thereby to contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts.
The word "Clerk Magistrate" in this Code, unless otherwise expressly provided, shall mean anyone serving in the position of Clerk Magistrate, Clerk, Register, Recorder, Assistant Clerk Magistrate, Assistant Clerk, Assistant Register, or Deputy Recorder, Judicial Case Manager or Assistant Judicial Case Manager, in the Supreme Judicial Court, the Appeals Court, or a Department of the Trial Court of the Commonwealth, whether elected or appointed, and whether serving in a permanent or temporary capacity. The words "elected Clerk Magistrate" shall also include a person who is appointed to complete the term of an elected Clerk Magistrate. The word "court" in this Code shall mean the Supreme Judicial Court, the Appeals Court, a particular division of a Department of the Trial Court, or a particular Department of the Trial Court if the Department does not have divisions.
Canon 2. 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. The words "judicial authorities" in this Code, unless otherwise expressly provided, shall mean the Justices of the Supreme Judicial Court and Appeals Court, the Chief Administrative Justice of the Trial Court, the Administrative Justices of the several Departments of the Trial Court, or Associate Justices of the Trial Court, as is appropriate under the circumstances. A Clerk Magistrate shall also comply with the lawful directives of the Court Administrator.
Canon 3. Performance of duties
A Clerk Magistrate shall devote the entire time during normal court hours to the duties of his or her office, but may, according to established procedures, participate during that time in law related educational and public service activities. An elected Clerk Magistrate may participate during ordinary court hours in activities reasonably related to his or her duties as an elected Clerk Magistrate. A Clerk Magistrate shall not engage in the practice of law, except that a Clerk Magistrate may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the Clerk Magistrate's family, but may not serve as the family member's lawyer in any forum. Also, a Clerk Magistrate may serve as a judge advocate general in the context of service in the United States Armed Forces, the reserve components of the United States Armed Forces, or the National Guard.
(A) Adjudicative and Administrative Responsibilities
In the performance of adjudicative and administrative responsibilities, the following additional standards shall apply:
(1) A Clerk Magistrate shall be faithful to the law and maintain professional competence in it as it relates to the performance of his or her duties. A Clerk Magistrate shall not be swayed by partisan interests, public clamor, or fear of criticism.
(2) A Clerk Magistrate should seek to maintain order and decorum in proceedings.
(3) A Clerk Magistrate should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others in official dealings, and should require similar conduct of those subject to his or her direction and control.
(4) A Clerk Magistrate shall accord to every person who is legally so entitled the right to be heard in a proceeding in person or through his or her lawyer. A Clerk Magistrate may make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.
(5) A Clerk Magistrate should diligently carry out his or her responsibilities and should dispose of them promptly.
(6) A Clerk Magistrate shall facilitate public access to court records that, by law or court rule, are available to the public and shall take appropriate steps to safeguard the security and confidentiality of court records that are not open to the public.
(7) A Clerk Magistrate may explain his or her own decisions made in the course of his or her official duties and may explain for public information the procedures of the court and the applicability of those procedures in particular circumstances. A Clerk Magistrate should otherwise abstain from public comment about any pending or impending proceeding in any court, and should require similar abstention by subordinate court personnel.
(B) Administrative Responsibilities
A Clerk Magistrate should diligently discharge administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other court officials. In so doing, a Clerk Magistrate should be cognizant of the need to employ efficient, businesslike methods and sound practices. A Clerk Magistrate should organize and manage the business of the Clerk Magistrate's office with a view to the prompt and convenient dispatch of the business of the court. A Clerk Magistrate should supervise subordinate personnel and arrange for their training. A Clerk Magistrate shall make personnel appointments on the basis of merit, and in compliance with applicable personnel standards.
Canon 4. Impartiality and disqualification
A Clerk Magistrate shall perform the duties of Clerk Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.
(A) Appearance of Impartiality. A Clerk Magistrate shall not convey the impression that any person is in a special position to influence the Clerk Magistrate, and the Clerk Magistrate should discourage others from suggesting that they are in a position to exert such influence.
(B) Personal Affairs. 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. A Clerk Magistrate shall not engage in outside activities which would cast doubt on his or her capacity to decide impartially any issue that may come before the Clerk Magistrate in any official capacity.
(C) Business Activities. A Clerk Magistrate shall not enter into any business relationship which reasonably might create a conflict with the proper performance of his or her official duty or detract from the dignity of the office. A Clerk Magistrate shall not use the influence of the office to promote his or her business interests or those of others.
(D) Activities to Improve the Law. A Clerk Magistrate may use his or her title to engage in activity to improve the law, the legal system, or the administration of justice. A Clerk Magistrate may appear at public hearings and may otherwise consult with governmental bodies or officials on such matters.
(E) Disqualification. A Clerk Magistrate should disqualify himself or herself from serving in an adjudicative capacity in a proceeding in which the Clerk Magistrate's impartiality might reasonably be questioned. A Clerk Magistrate who would be so disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification. If, based on such disclosure, the parties, individually or through counsel, after consultation independent of the Clerk Magistrate, agree in writing that the Clerk Magistrate need not be disqualified, the Clerk Magistrate may participate in the proceeding. The agreement, signed by all parties, shall be incorporated in the record of the proceeding.
Canon 5. Outside activities
A Clerk Magistrate shall regulate outside and personal activities to minimize the risk of conflict with official duties:
(A) Personal Conduct
A Clerk Magistrate should not engage in activities which might detract from the dignity of the office of Clerk Magistrate or interfere with the performance of the duties of the office.
(B) Civic and Charitable Activities
A Clerk Magistrate may participate in civic and charitable activities that do not reflect adversely on the Clerk Magistrate's impartiality or interfere with the performance of his or her official duties. A Clerk Magistrate may serve as an officer, director, trustee, or non legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
(1) A Clerk Magistrate shall not participate if there is a substantial likelihood that the organization, or a significant number of members of the organization, will be engaged in proceedings that would ordinarily come before the Clerk Magistrate or the court in which the Clerk Magistrate serves.
(2) A Clerk Magistrate may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office for that purpose or solicit his or her staff for that purpose. A Clerk Magistrate, however, may call his or her employees' attention to a general fund raising campaign such as the Commonwealth of Massachusetts Employees Campaign. Except as provided in paragraph (3), a Clerk Magistrate may attend but, except for an elected Clerk Magistrate, shall not be a speaker or the guest of honor at an organization's fund raising event. A Clerk Magistrate may be listed as an officer, director, or trustee of such an organization.
(3) A Clerk Magistrate may serve as a keynote or featured speaker at, receive an award or other comparable recognition at, be featured on the program of, and permit the Clerk Magistrate's title to be used in connection with the promotion of a fundraising event only if the event is sponsored by an organization concerned with the law, the legal system, or the administration of justice, and that organization promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.
(C) Financial Activities
(1) A Clerk Magistrate shall not conduct outside business activities in the courthouse at any time nor shall a Clerk Magistrate conduct any outside business activities anywhere during normal court hours. A Clerk Magistrate shall refrain from financial and business dealings that tend to reflect adversely on the Clerk Magistrate's impartiality, interfere with the proper performance of the position of Clerk Magistrate, or involve the Clerk Magistrate in transactions with lawyers or other persons likely to come before the court in which the Clerk Magistrate is serving.
(2) Subject to the limitations of subsection 5(C)(1) and subsection 4(C) of this Code, a Clerk Magistrate may hold and manage investments, including real estate, and engage in other remunerative activity.
(D) Fiduciary Activities
(1) A Clerk Magistrate shall not serve as an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of his or her family, and then only if such service will not interfere with the proper performance of the Clerk Magistrate's duties. "Member of his or her family" includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the Clerk Magistrate maintains or maintained a close familial relationship. As a family fiduciary, a Clerk Magistrate is subject to the following restrictions:
(a) A Clerk Magistrate shall not serve in any fiduciary capacity if it is likely that as a fiduciary the Clerk Magistrate will be engaged in proceedings that would ordinarily come before the Clerk Magistrate in a decision making capacity and shall resign as a fiduciary if the estate, trust, or ward becomes involved in adversary proceedings in the court in which he or she is serving.
(b) While acting as a fiduciary, a Clerk Magistrate is subject to the same restrictions on financial activities that apply to the Clerk Magistrate in his or her personal capacity.
(2) 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.
Except for activities to improve the law, the legal system, or the administration of justice, as permitted by Canon 4(D), a Clerk Magistrate shall not accept appointment within the geographical jurisdiction of the court in which he or she serves to a governmental committee, commission or other governmental position if there is a substantial likelihood that matters involving that committee, commission or other governmental position will come before the Clerk Magistrate or the court in which the Clerk Magistrate serves. A Clerk Magistrate may, however, represent the United States, the Commonwealth of Massachusetts, or a locality on ceremonial occasions or in connection with historical, educational, armed services and cultural activities.
(F) Free or Discounted Legal Services
A Clerk Magistrate may accept free or discounted legal services: 1) from a relative or close personal friend whose appearance in a matter would require the Clerk Magistrate's disqualification if the lawyer is a sole practitioner or at a firm where all the lawyers are relatives or close personal friends of the Clerk Magistrate; 2) when a lawyer or law firm has offered special pricing or a discount as part of a commercial opportunity or marketing strategy to a group of similarly situated persons who are not Clerk Magistrates; and 3) when the same discount is extended to non-Clerk Magistrates in comparable circumstances, and the lawyer, the law firm and their interests are not likely to come before the Clerk Magistrate in the reasonably near future.
Canon 6. Political activity and elective office
A Clerk Magistrate, other than an elected Clerk Magistrate, shall refrain from political activity and, in particular, shall not:
(1) act as a leader or hold any office in a political organization;
(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;
(3) solicit funds for a political organization or candidate; or
(4) hold or seek an elective public office if there is a substantial likelihood that matters involving that office will come before the Clerk Magistrate or the court in which the Clerk Magistrate serves. An appointed Clerk Magistrate may become a candidate for an elected Clerk Magistrate position. An appointed Clerk Magistrate who holds elective office at the time of the adoption of this Code may continue to serve consecutive terms in that office.
Canon 7. Education
A Clerk Magistrate should seek to improve his or her own magisterial and administrative capabilities. The Clerk Magistrate should also seek to maintain and improve the knowledge, abilities, and skills of all personnel in his or her office.
Canon 8. Non-discrimination
A Clerk Magistrate shall not discriminate based on sex, race, color, gender identity or expression, religion, nationality, national origin, ethnicity, citizenship or immigration status, ancestry, disease or disability, political affiliation, sexual orientation, age, marital status or socioeconomic status.
Canon 9. Compliance with the Code of Professional Responsibility for Clerks of the Courts
A Clerk-Magistrate who has retired or resigned from the judicial branch shall not perform court-connected dispute resolution services except on a pro bono publico basis in any court of the Commonwealth for a period of six months following the date of retirement or resignation.