Monday, December 3, 2012

Lawyers And Court Clerks Alike

In an opinion released today, the Massachusetts Supreme Judicial Court affirmed a single's justice's dismissal of a disciplinary action against an assiastant court clek:

The single justice accurately and succinctly stated the governing principles in his memorandum and order:

"Just as a private individual cannot, in her own right, prosecute an action in court seeking professional discipline of an attorney, see Slotnick v. Pike, 374 Mass. 822 (1977), a private individual such as the petitioner cannot prosecute a court action to obtain discipline of a clerk. See also Matter of a Request for Investigation of an Attorney, 449 Mass. 1013 (2007), and cases cited. The petitioner is free to file a complaint with the Committee on Professional Responsibility for Clerks
of the Courts, pursuant to S.J.C. Rule 3:13, [as appearing in 407 Mass. 1308 (1990),] if she has not already done so. The committee was established for this specific purpose. It is empowered to receive complaints such as this; conduct investigations and hearings of the type sought by the petitioner; dismiss, informally adjust, or otherwise dispose of complaints; pursue formal charges against a clerk if warranted; and make appropriate recommendations to the court regarding any disciplinary action to be taken. The creation of the committee did not abrogate the authority of the court in this area, but the fact remains that a private individual cannot invoke the court's authority in the manner attempted by the petitioner."

The petitioner's observation that the cases cited by the single justice involved bar discipline, and not clerk discipline, misses the mark. The same principles that apply to the Board of Bar Overseers and the discipline of attorneys apply with equal force here. A private individual may file a complaint with the board, or in this case the Committee on Professional Responsibility for Clerks of the Courts, and may be a witness in the proceedings before the board or committee, but he or she is not a party to the disciplinary process. It is the board that is responsible for prosecuting complaints against attorneys, and the committee that is responsible for prosecuting complaints against clerks. There is no private right to operate the disciplinary process. In addition to the cases cited by the single justice, see Gorbatova v. Semuels (No. 1), 462 Mass. 1012 (2012).

The case is Gorbatova v. First Assistant Clerk of the Supreme Judicial Court for the County of Suffolk. (Mike Frisch)

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