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Rely on a clerk’s legal advice to your peril.

Rely on a clerk’s legal advice to your peril.

28 September 2023

Clerks are an integral part of the legal process.  They are the front line and affect a lot more than you think.  Lawyers and (pro se, that means self-represented) litigants alike interface with clerks regularly and frequently.  Despite the exclusively legal subject matter they deal with and the multitude of legal, and least legally related, decisions being made, if a sign is displayed on the clerk’s counter or wall it is likely to state that clerks do not offer legal advice.  However, the line between legal advice and other subjects, like procedures, scheduling or timing can get blurry, and people have different interpretations of what constitutes legal advice.  And that is not always followed, by anyone’s definition, especially when clerks are instructed to aid or guide people in certain endeavors, such as people applying for restraining orders.

Bottom line, litigants typically have conflict with clerks over a range of topics.  Typically, one party, either the clerk or the litigant, either wants something or has done something that the other objects to, and this leads to a dispute.  From the clerk’s point of view, they are doing their job, they have been trained, and experience first-hand the ramifications of different processes.  And they have had experiences with attorneys that they believe are ignorant of rules, etc. and are bombarded with hasty and confused people, including criminal defendants and civil action litigants, routinely.  On top of that, there are internal, usually hidden, politics at play.  In Massachusetts, there is also a long history of clerk’s offices having different policies and procedures.  And then there is the human element, as we are all human.

From the attorney’s or pro se’s view, clerks can cause problems, real problems, which have direct impact on someone’s case.  And despite the prohibition, they do indeed, at times, give legal advice, or interfere with instructions from attorneys to others implementing the lawyer’s legal advice.  Also, there are times when they simply do not perform their obligations.  Attorneys conflict with clerks over what can and should be done legally, what can and can’t be filed, and over access to the court.  At times, clerks direct and control matters they shouldn’t, they resist and find ways to avoid copying files (because of course they know better as to what the person really needs), and have even been known to refuse to allow items to be filed.  And then there is the conflict between different clerks themselves leaving different information to be given.  Then there is just if the clerk is going to do something you need done, like approve a request for an audio file or prepare the appellate record for an appellate court.  Lastly, there are communication problems.  Clerks are rushed, have very common questions that they are asked that can cause them to put you in the wrong mental category, and are constantly learning themselves.  It is easy for them to put your situation in the wrong mental category and direct you in the wrong way.  This is quite a common occurrence when pro se litigants interact with clerks.

Who’s right? This is the on-going question typically.  A layman is likely to follow the clerk, the state official, with the assumption that there is safety in doing to; there will be a safety net if it turns out the clerk is wrong because hey, they are following what the official is saying.

However, as that debate continues in your dialogue with the clerk during the dispute of who’s right and you consider simply following the clerk and time is ticking and real consequences are in the balance, there is one legal fact that you must consider.  Generally, if you rely on the clerk’s legal advice and it ends up being wrong, you are the one that suffers.  In other words, “reliance on a clerk’s incorrect legal advice is not a form of neglect considered excusable.”  Jones v. Manns, 33 Mass. App. Ct. 485, 492 ((1992).  See also Brown v. Quinn, 406 Mass. 641, 645 (1990); Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 119 (1990).

And it is worse than just the fact that you cannot rely on a clerk’s legal advice.  You also have to ensure the case is proceeding as you need it to; it is the “responsibility of the bar, not the court staff, to attend to the progress of pending matters.” Brown v. Quinn, 406 Mass. 641, 644 (1989) (citing cases).  In Brown, the clerk failed to send a required notice of an impending deadline, however, despite that, the court found the failure of the attorney to act by a certain deadline was not excusable.  Id.  This rule is a nice way of saying, you have to make sure things get done despite the clerk not taking action, not giving notice of events, or taking the wrong action.  So, to all those thinking any conflict with a clerk must be the attorney’s or the litigant’s fault, think again, the reality is that it is required, when a clerk’s action or inaction, will affect your rights and obligations.  In certain circumstances, you must what one might describe as pester, or even harass (in a general sense, not a legal one), a clerk to make sure something gets done.

A layman typically does not know this, that essentially, to put it in the vernacular, it is “on you.” And is quite susceptible to falling victim to the clerk’s acts of omission and affirmative acts, including bad legal advice, to their peril.  A laymen generally believes they can rely on what the clerk tells them, what the clerk does (usually procedurally, but that affects substantive rights), and what the clerk does not do, such as if there is no notice there is no obligation.  This is all wrong.

Thus, it behooves you, if you find yourself in a conflict with the clerk of any form, to at least get someone that speaks the legal jargon and has (at least arguably some) familiarity with the procedures and experience in dealing with clerks on your side.