Can a Maryland lawyer who serves as a part-time court trust clerk still practice law?

Plain-English summary

Worcester County's Clerk of the Court asked the Attorney General whether a private attorney serving as the circuit court's part-time trust clerk, appointed by the judges to help supervise certain estates and guardianships, was barred from practicing law by BOP §10-603(b)(4), which forbids practicing law while employed "as a clerk or deputy clerk of any court or an employee of a clerk."

The Attorney General concluded the ban does not reach a trust clerk. Tracing the statute back through more than two centuries of amendments, starting with a 1786 law barring registers of wills from practicing in their own county, the opinion found the Legislature had consistently distinguished "clerk of any court" from deputy clerks, assistant clerks, and other court personnel, adding those other categories by name whenever it wanted to reach them. If "clerk of any court" already meant every person doing clerical work for a court, there would have been no reason to separately list deputy clerks, assistant clerks, appointees, and employees of the Clerk as the statute expanded over the years; those additions would have been pointless surplus language. Because a trust clerk is a distinct court officer appointed directly by the judges, not an employee or deputy of the elected Clerk of the Court, and was never added to the statute's list even as it grew to cover assistant clerks, bailiffs, and juvenile court staff, the opinion concluded trust clerks fall outside the practice-of-law ban entirely, unless the same person also happens to be the Clerk or one of the Clerk's own employees.

Common questions

Does being a court's trust clerk stop a lawyer from practicing law on the side?
No, according to this opinion, so long as the same person isn't also the elected Clerk of the Court or an employee of the Clerk's office. The statute's ban on clerks practicing law was found to reach only the Clerk and the Clerk's own staff, not a trust clerk appointed separately by the judges.

How did the Attorney General figure out what "clerk of any court" means?
By tracing the statute's amendments from 1786 through 1989 and noticing that every time the Legislature wanted the ban to reach a broader group, like deputy clerks, assistant clerks, or a clerk's appointees and employees, it named that group specifically. That pattern only makes sense if "clerk of any court" already meant just the Clerk, not every court employee who does clerical work.

Is this the same rule as the Judicial Appointees Code of Conduct?
No. The opinion noted that a separate rule (then Rule 1232) restricts law practice by judicial appointees generally, distinguishing full-time from part-time appointees, but that rule's own definitions don't apply to trust clerks, so it doesn't independently limit this particular trust clerk's ability to practice law.

What if the trust clerk is also a deputy or employee of the Clerk of the Court?
Then the statute's ban would apply, according to the opinion, since it explicitly covers a clerk, deputy clerk, assistant clerk, or an appointee or employee of the Clerk. The conclusion here applies specifically to a trust clerk who is a separate court appointee, not connected to the Clerk's office.

Background and statutory framework

BOP §10-603(b)(4) bars an admitted attorney from practicing law while employed as "a clerk or deputy clerk of any court or an employee of a clerk," language the Revisor's Note traces without substantive change to former Article 10, §28. That provision's roots go back to a 1786 act barring registers of wills from practicing in their home county; by 1862, the ban expanded to cover "clerk of any court" and "deputy clerk" as separate categories, statewide, and by 1914 it had grown to reach clerks, deputy or assistant clerks, appointees and employees of the Clerk, bailiffs, and juvenile court officers and employees, all while never once naming trust clerks.

The opinion applied the ordinary rule that a statute should be read, where feasible, so no word is rendered surplus (State v. 149 Slot Machines), and found that the consistent, repeated pattern of naming "deputy clerk," "assistant clerk," and later "appointee or employee" as distinct categories alongside "clerk of any court" only makes sense if "clerk of any court" was always understood narrowly, as the elected Clerk of the Court, rather than as a catch-all for anyone doing clerical work for a court. That reading was reinforced by looking at legislative purpose and external context beyond the bare text (Kaczorowski v. City of Baltimore), including the fact that trust clerks are a distinct office appointed directly by the circuit court judges under Maryland Rule 1223, separate from the Clerk of the Court's own staff, and the longstanding administrative practice in several counties of appointing practicing bar members as part-time trust clerks (citing the "long and universally recognized" practice standard from Baltimore v. Pattison).

Citations and references

Statutes:

• §10-603(b)(4) of the Business Occupations and Professions Article (ban on court clerks practicing law)
• Md. Rule 1223 (circuit court trust clerk designation)
• Chapter 236, Laws of Maryland 1914 (the version of former Article 10, §28 that added assistant clerks, appointees, and employees by name)

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505 (1987) (statutory construction looks beyond bare text to legislative purpose and history)
• State v. 149 Slot Machines, 310 Md. 356 (1987) (statutes should be read so no word or phrase is rendered surplus)
• Baltimore v. Pattison, 136 Md. 64 (1920) (a long-recognized administrative practice can inform the meaning of a court-related statute)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 464-471 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

TRUST CLERKS

Attorneys -- Practice of Law -- Trust Clerks Are Not Prohibited From Practicing Law Because They Hold That Position

May 4, 1990

The Honorable Richard H. Outten
Clerk of the Court

You have requested our opinion on whether a private attorney who has been designated the trust clerk for the Circuit Court for Worcester County is precluded by §10-603(b)(4) of the Business Occupations and Professions Article ("BOP" Article) from practicing law during his tenure as trust clerk. The particular trust clerk to whom you refer is appointed by the judges of the court and is not an employee of the Clerk of the Court; his duties are part-time only.

For the following reasons, we conclude that BOP §10-603(b)(4) does not apply to this trust clerk.

I

Trust Clerk

A trust clerk is a person designated by a court to aid the court in the supervision of certain estates and guardianships. See Md. Rule V70 e. Since 1970, Md. Rule 1223 has required that each circuit court designate a trust clerk and determine the trust clerk's compensation, and Subtitle V of the Maryland Rules has set forth the duties and responsibilities of trust clerks.[1] Prior to 1970, Maryland's equity courts appointed trust clerks as authorized by local rules or as an exercise of the inherent authority of the chancellor.[2]

By longstanding tradition, practicing members of the bar have been appointed to serve part-time as trust clerks for the circuit courts in several of Maryland's counties, including those in the First and Second Judicial Circuits. According to a survey recently conducted for the Conference of Circuit Judges, eleven counties (Caroline, Carroll, Cecil, Dorchester, Harford, Kent, Prince George's, Queen Anne's, Somerset, Talbot, and Worcester) require that their trust clerk be a member of the bar. In Baltimore City, Baltimore County, and Prince George's County, the trust clerk performs the duties of the position on a full-time basis; in all other counties, the person designated as trust clerk performs those duties on a part-time basis, and the amount of time required varies with the caseload.

II

Law Practice Prohibition

A. Introduction

BOP §10-603(b)(4) provides in pertinent part as follows:

    (b) Even if an individual has been admitted to the Bar, the individual may not practice law while employed:

    (4) as a clerk or deputy clerk of any court or an employee of a clerk....

According to the Revisor's Note, BOP §10-603(b)(4) is new language derived, in pertinent part, "without substantive change" from former Article 10, §28. See Chapter 3, Laws of Maryland 1989 at 478. Former §28 provided:

Any register of wills or clerk of any court, or deputy register or clerk or assistant clerk, appointee or employee of said register of wills or clerk of any court, or bailiff of any court, or officer or employee of any juvenile court except a master for juvenile causes, who is not employed full time who shall pursue the practice as attorney at law in this State during the term of their office or appointment, shall be deemed guilty of a misdemeanor and on conviction shall be fined not less than twenty-five dollars nor more than one hundred dollars, and be suspended from the practice of law before any of the courts of Maryland for one year.[3]

Thus, the question comes down to this: What did the General Assembly intend when it used the term "any ... clerk of any court" in §28? Did it mean only the Clerk of the Court ("the Clerk"), e.g., the Clerk of the Circuit Court who is elected pursuant to Article IV, §25 of the Maryland Constitution?[4] If so, then a trust clerk who is neither the Clerk nor within one of the other classes specified in the statute, a deputy clerk, an assistant clerk, or an appointee or employee of the Clerk, is not prohibited from practicing law. However, if the General Assembly intended the term to apply generically to anyone who serves a court in a clerical capacity, then the statute prohibits trust clerks from practicing law.

In determining legislative intent, we begin with the language of the statute itself. Newman v. Subsequent Injury Fund, 311 Md. 721, 723, 537 A.2d 274 (1988). This language is to be given its natural and ordinary meaning. Boulden v. Mayor, 311 Md. 411, 414, 535 A.2d 628 (1988). However:

    [W]e are not limited to the words of the statute as they are printed in the Annotated Code. We may and often must consider other "external manifestations" or "persuasive evidence," including ... amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.

Kaczorowski v. City of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (1987). "Furthermore, we construe statutes, if at all feasible, so that no word or phrase is rendered surplus or meaningless." State v. 149 Slot Machines, 310 Md. 356, 361, 529 A.2d 817 (1987). We turn then to the legislative history of former Article 10, §28.

B. Legislative History

Former Article 10, §28's practice-of-law prohibition is of ancient origin. It has its roots in a 1786 Act of the General Assembly that provided:

    No person, being register of wills for any county in this state, shall plead as an attorney at law in any court in the county where he is register of wills, for any person or persons, on any pretense whatsoever; ....

Chapter X, Laws of Maryland 1786.

In 1862, the reach of this prohibition was extended as follows:

    No Register of Wills, or deputy Register, clerk of any court, or deputy clerk, shall practice as an Attorney-at-Law in any of the courts of this State, for any person or persons.

Chapter 179, Laws of Maryland 1862. Thus, the classes of officials affected were expanded to include deputy registers, clerks of court, and deputy clerks; and the affected officials were prohibited from practicing before any Maryland court, not just a court in their county.

We think that the language of the 1862 Act left no doubt that the term "clerk of any court" was intended to mean only the Clerk and was not used in a generic sense to mean all clerks who serve the courts. Otherwise, the reference to Deputy Clerk would have been surplus and meaningless.

In 1868, the Legislature again amended the statute. This time it was changed to read:

    No Register of Wills or Clerk of any Court shall practice as attorney at law in any of the courts of this State whatsoever, nor shall any Deputy Register of Wills, or any Deputy Clerk of any Court, practice as attorney at law in any court of this State of which he is an officer, or to which he may be attached as a deputy or assistant officer.

Chapter 404, Laws of Maryland 1868.

Thus, the General Assembly decided to distinguish between the Registers of Wills and the Clerks of Court, on the one hand, and their deputies on the other. The former continued to be prohibited from practicing before any of the courts of Maryland, whereas the latter were prohibited only from practicing before their own courts. This distinction compels the conclusion that "Clerk of any Court" was not intended to be an all-inclusive term, but rather was limited to the Clerk.

In 1898 the Legislature narrowed the Clerks' (and Registers') prohibition so that they, like their deputies, could practice before courts other than their own. The 1898 statute provided:

    No Register of Wills or clerk of any court shall practice as an attorney at law in any of the courts of this State of which he is such register or clerk, nor shall any deputy clerk of any court practice as attorney at law in any court of this State, of which he is an officer, or to which he may be attached as a deputy or assistant officer.

Chapter 472, Laws of Maryland 1898. Once again, the continuing distinction between "clerk of any court" and "deputy clerk" confirms the view that the former means only the Clerk.

In 1914, the statute was rewritten and a penalty added. The new statute provided:

    Any Register of Wills or Clerk of any Court, or deputy Register or Clerk or assistant Clerk, appointee or employee of said Register of Wills or Clerk of any Court, or bailiff of any Court, or officer or employee of any Juvenile Court, who shall pursue the practice as attorney at law in this State during the term of their office or appointment, shall be deemed guilty of a misdemeanor and on conviction shall be fined not less than Twenty-five Dollars, and be suspended from the practice of law before any of the Courts of Maryland for one year.

Chapter 236, Laws of Maryland 1914.

Thus, the prohibition was broadened in two ways. First, the classes of officials to whom it applied was increased. In addition to the Register of Wills, the Clerks of Court and their deputies, the prohibition was expanded to apply as well to their appointees and employees, to assistant clerks, to bailiffs, and to officers and employees of any Juvenile Court. Secondly, the statute broadly prohibited "practice as [an] attorney at law in this State," not just practice before the local court.

This broadening of the statute made it even clearer that the "Clerk of any Court" reference was limited to the Clerk, for there would have been no need to apply the restriction to assistant clerks if the term were more expansive. Furthermore, although the list of affected officials and employees was lengthened considerably, a trust clerk appointed by a court was not among them.

Section 28 was last amended by Chapter 123 of the Laws of Maryland 1970, which repealed and reenacted it for the sole purpose of excepting a part-time Master for Juvenile Causes from its law practice prohibition. In 1989, as part of the code revision process, §28 was repealed and its prohibition was reenacted, without substantive change, as part of the new Business Occupations and Professions Article. It became §10-603(b)(4) of the new article.[5]

III

Conclusion

In summary, it is our opinion that the General Assembly intended the term "any ... clerk of any court," as used for well over a century in former Article 10, §28 and more recently in its offspring, BOP §10-603(b)(4), to mean only the Clerk of the Court, and not a trust clerk. We base this conclusion on the lengthy legislative history of §28's consistent distinction between, and often differing treatment of, the Clerks and deputy clerks, and against the background of the longstanding administrative practice of several circuit court benches. Cf. Baltimore v. Pattison, 136 Md. 64, 68, 110 A. 106 (1920) (practice of clerks in charging certain fees "has been so long and so universally recognized and acted upon as to become a part of the common law of the State").

Therefore, in our opinion, an individual who is appointed a trust clerk pursuant to Rule 1223 is not, by that fact alone, prohibited from practicing law.[6] Only if the individual designated as trust clerk also is the Clerk of the Court or a member of one of the other classes expressly enumerated in BOP §10-603(b)(4) (e.g., an employee or appointee of the Clerk of the Court) is he or she prohibited from practicing law.

                                             J. Joseph Curran, Jr.
                                             Attorney General

                                             Judson P. Garrett, Jr.
                                             Deputy Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] In response to the enactment of the Estates and Trusts Article, Chapter 4 of the Laws of Maryland 1969, the Court of Appeals revised the Maryland Rules concerning persons under disability (Chapter R) and fiduciaries (Chapter V). 38th Report of the Standing Committee on Rules of Practice and Procedure. Originally, Rule 1223 mandated the circuit courts for the counties, the then Supreme Bench of Baltimore City, and the Register of Wills for each county to designate a trust clerk, and limited the Register to designating either the Register himself or one of his deputies. The current rule was adopted October 1, 1980, effective January 1, 1981.

[2] Section 2-501(a) of the Courts Article authorizes the judges of the circuit courts to employ court administrators, assignment commissioners, auditors, masters, examiners, court reporters, messengers, bailiffs, court criers, librarians, clerks, secretaries, stenographers, jury commissioners, law clerks, and other employees necessary to conduct the business of the court.

[3] Although the punctuation suggests otherwise, the phrase "who is not employed full time" modifies only the exception for a master of juvenile causes. See Chapter 123, Laws of Maryland 1970.

[4] The Clerk of the Court of Appeals and the Clerk of the Court of Special Appeals are appointed by and serve at the pleasure of their respective courts. Article IV, §17 of the Constitution (Court of Appeals); §2-401 of the Courts Article (Court of Special Appeals). The Chief Clerk of the District Court, the chief administrative clerk for each district, and a clerk of the District Court in each county are appointed by the Chief Judge of the District Court. Article IV, §41F of the Constitution; §§2-601 and 2-602 of the Courts Article.

[5] Chapter 3 of the Laws of Maryland 1989 codified the substance of former §28 as part of new BOP §10-604(b)(4); Chapter 632 of the same Session Laws repealed BOP §10-603, and §10-604 was renumbered §10-603.

[6] We note that Rule 1232, the Code of Conduct for Judicial Appointees, differentiates between full-time and part-time appointees in its regulation of law practice. Canon 41 provides as follows: (1) Except as provided in subsection (2), a judicial appointee should not practice law. (2) A part-time judicial appointee may practice law to the extent permitted by the appointing authority, but the judicial appointee shall not use or attempt to use the appointee's position to further that practice. However, Rule 1232 does not apply to trust clerks. See introductory paragraph (definition). The Rules Committee may wish to consider an amendment applying this rule to trust clerks.