Law clerks’ and future employers

Because judicial clerkships are generally short-term opportunities with the end date known before the clerkship starts, clerks usually look for and accept other employment before the clerkship ends if they have not done so even before the clerkship starts.  That future employment presents judges and clerks with several ethical questions.  Canon 5 of the Texas Supreme Court Code of Conduct for Law Clerks and Staff Attorneys, for example, states that “[l]aw clerks and staff attorneys may seek and accept other employment to commence after the completion of their employment here,” but provides that they “may participate only in such recruiting activity as would not detract from the dignity of their position or lend itself to an appearance of impropriety.”

Bonuses

Law firms frequently give signing bonuses to all newly hired attorneys and sometimes give clerkship bonuses when the new hire is a judicial law clerk.  Canon 5E of the Delaware code of conduct for law clerks, however, prohibits a law clerk from accepting “any bonuses . . . until the end of the clerkship.”

Canon 5 of the Texas Supreme Court code of conduct for law clerks and staff attorneys provides that law clerks and staff attorneys may not accept an employment benefit from a prospective employer “after they report for work with the Court and until their employment with the Court is ended” even if the benefit is one that is “equally offered by a prospective employer to all prospective employees.”  Further, the rule provides:

In negotiating for other employment, the law clerk or staff attorney may not ask for or accept compensation or other employment benefit or the promise of compensation or other employment benefit that is not made equally available by the prospective employer to other prospective employees based on similar academic achievement and work experience whether obtained through government or private sector employment.

The amendment followed a controversy about whether a clerk’s acceptance of a signing bonus from a law firm violated the state’s penal code provision that a public servant commits a criminal offense if he or she “solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.”

The advisory committee for federal judges stated that a law clerk may not, during his or her employment, accept any bonus given in anticipation of services to be provided for the clerk’s future employer.  U.S. Advisory Opinion 83 (2011).  The federal committee advised, however, that a prospective law clerk may accept a bonus before beginning the clerkship because the code of conduct for judicial employees applies only to “employees of the Judicial Branch,” not to prospective employees.  Noting that “some judges may prohibit their future or present law clerks from accepting bonuses that are permissible under this opinion,” the committee advised present or future law clerks to consult with their judges before accepting any bonuses.


Reimbursement

Reimbursement from a law firm of the expenses for traveling to and from an interview may be accepted under the Delaware code, although the clerk is required to “promptly inform the appointing judge” of such payments.  Delaware Advisory Opinion 2011-2.  The Texas code directs law clerks and staff attorneys to “limit reimbursement to those expenses reasonably related to the recruiting process” and to “restrict their recruiting travel to the home office or office of potential employment . . . .”.

Whether and when a law clerk may accept reimbursement for various other expenses from the law firm where the clerk will be working after the clerkship varies from jurisdiction to jurisdiction.  For example, a clerk in Delaware may not accept a salary advance to assist with moving and living expenses from a law firm/future employer (Delaware Advisory Opinion 2011-2), but regulations specifically permit a federal judicial employee “who has obtained employment to commence after judicial employment ends” to accept “reimbursement of relocation . . . expenses customarily paid by the employer.”  U.S. Advisory Opinion 83 (2011).

Delaware allows a clerk to be reimbursed by a future employer for the expenses of taking a bar review course and the bar examination (Delaware Advisory Opinion 2011-2), and federal clerks may accept “bar-related expenses customarily paid by the employer.”  U.S. Advisory Opinion 83 (2011).  In Arizona, before a clerkship begins, a recent law school graduate who has accepted a law firm’s offer of employment to begin post-clerkship may accept reimbursement from the firm for expenses incurred in taking the bar examination (Arizona Advisory Opinion 2002-2), but an appellate court clerk’s mandatory bar dues may not be paid by a law firm.  Arizona Advisory Opinion 2000-3.


Disqualification

A judge has an obligation to keep informed about a law clerk’s job search, and a law clerk has an obligation to keep the judge informed.  The federal advisory committee, for example, stated, “the judge should take reasonable steps to require that law clerks keep the judge informed of their future employment plans and prospects.”  U.S. Advisory Opinion 74 (2009)Accord Arizona Advisory Opinion 2002-2; D.C. Advisory Opinion 1 (1991); New York Advisory Opinion 2015-14.

A judge is not disqualified from cases in which a law clerk’s future employer or prospective future employer represents a party, but, under most authority, the judge should exclude the law clerk from any participation in the firm’s cases.  For example, the Arizona advisory committee stated that, “[w]hile nothing prohibits a law clerk from accepting an offer of employment by a law firm to commence upon the completion of the clerkship, the acceptance creates a relationship requiring that the law clerk be screened from all cases involving her future employer.”  Arizona Advisory Opinion 2002-2But see Canon 5E, Delaware Code of Conduct for Law Clerks (a “law clerk is not disqualified per se from working on a case in which a prospective employer is involved,” but the clerk is required to promptly inform the judge if any lawyer, law firm, or entity with whom a law clerk is seeking or has obtained future employment appears in any matter pending before the appointing judge who will determine the extent of the law clerk’s involvement).

The exclusion of the law clerk from cases involving a potential future employer must start at least as soon as an offer of employment has been made.  For example, the advisory committee for federal judges stated that the obligation “arises whenever an offer of employment has been extended to the law clerk and either has been, or may be, accepted by the law clerk,” adding “the formalities are not crucial.”  U.S. Advisory Opinion 74 (2009).  The committee noted that, in appropriate circumstances, the judge may decide to disclose to the parties that the law clerk may have a prospective employment relation with counsel in a case and that the policy of excluding the clerk from involvement in the case is being followed.  According to the committee, the occasion for precautionary measures “does not arise merely because the law clerk has submitted an application for employment,” but the nature of the litigation or the likelihood that future employment may render it advisable for the judge to exclude the clerk at a preliminary stage of the employment discussion.

Adopting a stricter rule, the New York committee advised that a judge must internally insulate a clerk from all cases involving a prospective employer not only after the judge learns the prospective employer offered employment to the law clerk but also when the law clerk and prospective employer are actually discussing or negotiating a position and that the judge should consider doing so as soon as the interview.  New York Advisory Opinion 2015-14.  The judge may discontinue insulating the law clerk after learning that the clerk will not join the firm.  See also New York Advisory Opinion 2007-174; New York Joint Advisory Opinions 2007-87 and 2007-95.

Adopting an even stricter rule, an invitation to interview that the clerk has not declined was identified as the “precipitating event” for excluding a clerk by the D.C. advisory committee.  D.C. Advisory Opinion 1 (1991).  The D.C. committee explained, “Any incentive on the part of the law clerk to attempt to act favorably towards the prospective employer might reasonably be viewed as being at least as strong during active negotiations for employment as it would be after an offer has been made and accepted,” and, therefore, the clerk’s disqualification should begin with “an offer of an employment interview or an offer of employment, whichever comes first.”

Finally, at least 1 state suggests a judge should insulate a clerk from cases involving a law firm as soon as the clerk applies for a position with the firm.  In Connecticut Emergency Staff Advisory Opinion 2009-20, a judge was advised that he was not required to prohibit a court employee from applying for a position with a law firm that was in the midst of a trial before the judge or that had recently had a trial before the judge but that, “should the court employee apply for the position with the law firm, whether the firm is appearing presently before the court or not, the Judicial Official should not allow the employee to work on any cases involving that law firm and should ensure that the employee has no further dealings on the Judicial Official’s behalf with that firm for a reasonable period of time under the circumstances.”

The D.C. advisory committee created an exception to the requirement of isolation when a law clerk’s prospective employer is a high-volume litigator in the judge’s jurisdiction such as the U.S. attorney for D.C., the city corporation counsel, or the public defender service.  D.C. Advisory Opinion 1 (1991).  Noting that those offices “cumulatively account for a very substantial percentage of the litigation” before the D.C. courts and that each superior court judge has only 1 law clerk, the committee concluded that “[u]nder these circumstances, the disqualification of a law clerk from so great a part of a judicial officer’s caseload would be extremely burdensome,” and advised that a law clerk may, in the judge’s discretion, continue to work on cases in which those offices appear even after an offer of employment has been proffered.  However, the committee emphasized, in those cases, the judge must “closely supervise[ ] the clerk and scrutinize[ ] the clerk’s work product to ensure that no conscious or unconscious bias on the part of the clerk has affected or may impair the impartiality of the court.”

In contrast, the federal advisory committee required isolation of a law clerk even when the prospective employer is the U.S. attorneys’ office.  U.S. Advisory Opinion 81 (2009).  The committee recognized that the U.S. attorney’s office is not a law firm and a law clerk would have no financial interest in cases handled by that office, but concluded that there would be an appearance of impropriety unless the judge isolated the clerk from cases involving the particular U.S. attorney’s office that will employ the clerk after the clerkship.

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