“Salty”

Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).  The Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  If the Court approves the plan, it will stay part or all of the suspension during the plan’s term; if the judge successfully completes the plan, the Court will consider waiving any remaining suspension.

(1) The Court held that the use of “f**k” “is unprofessional and—almost always—undignified for a judge,” violating the rule requiring a judge to treat everyone with patience, dignity, and courtesy.  In response to the panel finding that the judge had also violated the rule requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” the judge argued that the F-word is ubiquitous “in the current culture’s vernacular” and “cussing is so common in Southeast Kansas” that it does not reflect negatively on character.  The Court concluded that the judge’s “offensive conduct went far beyond any undignified and unprofessional use of the word ‘f**k’” and that his “aggressiveness; his reference to a female litigant as ‘crazy’; his overt and public humiliation” of the chief clerk; and “his loud, angry, and expletive-filled reprimand” of a court clerk “collectively” violated the rule.

The judge also argued that his profanity could not have undermined public confidence in the judiciary because the incidents “did not occur in a public forum.”  However, the Court noted that at least 2 incidents had occurred or could be heard in a hallway near members of the public.  Further, the Court explained that the judge’s argument “defies logic” by suggesting that his “conduct has not been discussed in the community by the people who witnessed it.”

The judge also argued in his defense that he was often fair to court staff.  The Court stated that, “while that may be true, good behavior on some—even most—occasions does not disprove misbehavior on other occasions.”  Further, it emphasized that good behavior did not “override” code violations, but at most was relevant as mitigation for discipline.  It explained:  “Frankly, good behavior, while commendable in a judge, is also expected.”

(2) The panel had concluded that the judge’s “use of derogatory words,” particularly “b***ch” and “c**t,” to describe women manifested a clear bias based upon sex and “was hostile toward the individuals about whom he was speaking. . . .  Intentionally gender-based derogatory references toward women have no place in the administration of justice, and have no place in a judge’s vernacular.”  (The Court noted that a minority of the justices believed that there was no showing of bias against females generally but only bias against certain females.)

The judge asserted that his statements did not violate the code because he did not make them while performing judicial duties, that is, “during or in relation to any matter he was adjudicating” or while performing administrative duties.  The Court rejected that argument:

Respondent interprets “judicial duties,” including his administrative duties, too narrowly.  While in the courthouse—when court business of every kind was being addressed—Respondent was present in his official capacity as a district judge, and sometimes also as chief judge.  A judge does not lose his mantle of authority when he steps out of his chambers into a hallway.  A judge’s performance of “judicial duties” occurs constantly in the courthouse during the course of any given day. . . .  Those duties include the times a judge presides over hearings, completes administrative reports, and evaluates employees, but they also include those occasions when a judge discusses employee performance with attorneys and other staff; admonishes persons waiting in the hall to be quieter so as not to disrupt court proceedings; offers to assist a wandering law enforcement officer who needs an application for search warrant reviewed; directs a member of the public to the right courtroom; addresses a complaint; and deals with innumerable other things that require a judge’s professional attention, judgment, and decision throughout the day.

(3) During a bond hearing for a young black male student at a local college, the judge asked, “Can I assume you’re not even a Kansas boy?”  There was a second bond hearing also involving a young black male student immediately afterward.

The judge testified that he did not intend the term “boy” to have any racial connotation, that he considers himself a “Chautauqua County boy,” and that his reference to the young man as “a Kansas boy” was similar.  The panel found that the judge’s testimony was credible and that he did not intend the term as a term of racial derision, noting “geographic origin was relevant for proper administration of the bond hearing, and the men were teenagers.” 

Noting that “words and phrases . . . are important,” the Court concluded that, “regardless of inflection, tone, or local custom,” the judge’s conduct “during these bond hearings created a reasonable perception of racial bias . . . .”  It explained:

Specifically, two adult Black men appeared before the judge during a bond hearing, both presumed innocent of their criminal charges. A reasonable individual might perceive that the following may have shown racial bias:

• Something about the defendants’ appearance caused the judge to believe they were athletes;
• Something about their appearance caused the judge to assume they were not from the area;
• Something about their appearance caused the judge to question—even disbelieve—one defendant’s assertion that he had no felony record; and
• During the judge’s comments he used a term — “boy”— that has been used at times in the past as a common and well-known slur against Black men.

The Court concluded that, “when taken altogether and in context, a reasonable perception of bias cannot be denied.”

In mitigation, the judge stated that he is efficient, fair in his hearings, and “does not mean to hurt or harm” but “is just ‘salty.’”  The Court found that the judge’s conduct “quite troubling.  He has intimidated and publicly humiliated court employees.  He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings.  By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.”

Not a matter of management style

The North Carolina Supreme Court found that a court of appeals judge had committed willful misconduct by allowing his executive assistant/law clerk, who was a close friend, to create a toxic work environment for the female law clerks in his chambers.  In re Inquiry Concerning Murphy, 852 S.E.2d 599 (North Carolina 2020).

After he became a judge in January 2017, the judge hired his close, personal friend from high school, Ben Tuite, to serve as his executive assistant and permanent third law clerk.  The judge gave Tuite “express and implied authority to supervise and manage the term law clerks and the operations of his chambers.”  The judge hired Clark Cooper and Lauren Suber as his term law clerks.  In March 2017, after Cooper suddenly resigned, the judge hired Mary Scruggs.  After Suber completed her clerkship in August 2017, she was replaced by Chelsey Maywalt. 

The Judicial Standards Commission found that Tuite “regularly used profanity during the workday, belittled others,” “used fear and intimidation while interacting with and supervising the law clerks,” “engaged in profane, violent and angry outbursts in the office,” and made “lewd or sexually inappropriate comments in the workplace.”  For example:

  • Tuite frequently used the word “f**k” in the workplace.
  • Tuite referred to the female law clerks more than once as “b***h” or “b***hing.” 
  • Tuite told Suber and Scruggs on separate occasions early in their clerkships that “he likes to have relationships with female co-workers but that they should not misconstrue his efforts to spend time with them.”
  • Tuite told Suber that “he would like to see her in a wife beater’ tank top and shorts on a cold day” and that he “was married but not blind.”
  • While reviewing a law clerk application with the judge, Suber, and Scruggs, Tuite repeated “derogatory and belittling online comments” that called the female applicant’s breasts “fun bags.”
  • On one occasion, Tuite, “after being told of a problem with his work product, yelled ‘f**k’ loud enough for everyone in the judge’s] chambers, including [the judge] who was in his office with the door open, to hear, and slammed his fist on a table hard enough to activate a panic alarm that was attached to that table.”
  • On another occasion, during a meeting, Tuite, in the judge’s presence, got angry at Maywalt, slammed his fist on his chair, said, “Goddamn it, Chelsey,” and told her to shut her mouth and that “her opinion did not f**king matter.”

The judge observed some of Tuite’s conduct, and the law clerks told him about other incidents, but he failed to take any action.  The female clerks “were miserable, felt unsafe and uncomfortable working in [the judge’s] chambers and did not trust [the judge] to accurately portray their reports of workplace misconduct to others or to protect their well-being.”  2 of the clerks resigned before their terms were over; one did not accept the judge’s offer to extend her term. 

Another judge reported his concerns about the environment in Judge Murphy’s chambers to the chief judge.  In subsequent meetings with and emails to the Commission and the human relations department, the judge did not disclose the law clerks’ complaints about Tuite or any of the incidents he had observed and “downplayed, minimized, and mischaracterized” Tuite’s actions.  “The judge dismissed the female clerks’ concerns as complaints about “‘how things are handled’ inside and outside of chambers.”  The judge also regularly assured Tuite and indicated to others that Tuite’s employment at the court of appeals would continue.  However, after a judicial colleague advised him to ensure that “his female law clerks were not uncomfortable” and after learning that Scruggs was interviewing for another position, the judge asked Tuite to resign, which he did in January 2018.

Finding that he had been “influenced by his close personal friendship with and loyalty towards Mr. Tuite,” the Commission concluded that, by failing to act, the judge condoned “Tuite’s workplace misconduct and therefore . . . contributed to and enabled a toxic work environment.”  The Court adopted the findings of the Commission.

The Court rejected the judge’s argument that he could not be held accountable for others’ actions; it noted that the code of judicial conduct specifically states that a judge should require “dignified and courteous’ behavior of his staff” and require “staff and court officials subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.”  The Court concluded:

The incidents for which respondent was present . . . were sufficient to warrant corrective action with regard to Mr. Tuite.  Instead, respondent continued to turn a blind eye.  This shortcoming is not, as [the judge] contends, simply a matter of managerial style.  Rather, it is a failure to recognize the gravity of Mr. Tuite’s sexually explicit language and profane and suggestive language directed toward [the judge’s] law clerks and the impact on the law clerks of such unprofessional behavior.

Multiple acts of misconduct aggravated by a failure to acknowledge fault or show remorse and by a lack of candor often result in a judge’s removal or suspension without pay in judicial discipline cases.

However, the North Carolina Supreme Court only publicly censured Judge Murphy without explanation except the conclusion that his conduct “did not rise to the level of incurring suspension or removal as contemplated in other decisions of this Court.”  The Court did not cite its other decisions, but since 2008, it has removed 2 judges and suspended 2 judges without pay, in addition to imposing several censures and reprimands.  See In re Chapman, 819 S.E.2d 346 (North Carolina 2018) (30-day suspension without pay for failing to issue a ruling for more than 5 years on a motion for permanent child support); In re Hartsfield, 722 S.E.2d 496 (North Carolina 2012) (based on stipulated facts, 75-day suspension without pay for ticket-fixing); In re Belk, 691 S.E.2d 685 (North Carolina 2010) (removal of former judge for remaining on the board of directors of a corporation and making intentional misrepresentations during the Commission investigation); In re Badgett, 666 S.E.2d 743 (North Carolina 2008) (removal of judge for mishandling a domestic violence protective order case and, during the investigation, making untruthful, deceptive, and inconsistent statements to a State Bureau of Investigation agent and attempting to influence the recollections of a deputy clerk and the plaintiff’s attorney; the judge had been censured and suspended earlier in the year for unrelated misconduct).

Social media direction and control

In a recent advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions stated that, when an appellate justice learns that a staff member has posted a comment on social media that violates the canons, the justice should immediately take steps to remedy the ethical violation.  California Oral Advice Summary 2020-37.  It explained that, “at a minimum, the justice should instruct the staff member to take all reasonable steps to delete or to have removed from public view any improper comment that violates the canons, and then follow up with the staff member to ensure that they have done so.”  Further, the committee stated that, if the justice learns that “an improper comment has already been viewed by the public, republished or otherwise disseminated, then depending on the circumstances, the justice may need to instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning or offensive, or otherwise undermines the dignity of the court.”

The opinion noted that “appellate court staff can be expected to post their thoughts, comments and opinions online” like anyone in the general public who participates in social media to express themselves and stated that “staff are not prohibited from posting comments on social media about their employment or about the courts in general.”  However, the committee warned that “the canons constrain the content of any such comments and obligate justices to require staff compliance with the canons.”  The committee added that appropriate training would help court staff understand their “vital role” in maintaining public confidence in the integrity of the judicial system and “the importance of maintaining confidentiality and impartiality and of upholding the dignity of the court in their postings to social media.”

The inquiry to the California committee was from an appellate justice so the opinion addresses the obligations of appellate justices, but the code provisions it interpreted apply to “anyone who is an officer of the state judicial system.”  The committee based the obligation of justices to “exercise reasonable direction and control” over staff on several provisions in the California code of judicial ethics.

  • Canon 3B(9) states that judge shall require staff and court personnel, like judges themselves, “to abstain from “any public comment about a pending or impending proceeding in any court” and “any nonpublic comment that might substantially interfere with a fair trial or hearing.”
  • Canon 3C(3) states that judges shall require staff and court personnel to, like judges themselves,  “observe appropriate standards of conduct and to refrain from (a) manifesting bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, or (b) sexual harassment in the performance of their official duties.”

Rule 2.10(C) of the American Bar Association Model Code of Judicial Conduct is similar to California Canon 3B(9).  Rule 2.3(B) of the model code states that a judge “shall not permit” court staff, court officials, or others subject to the judge’s direction and control to, in the performance of their duties, “by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.”

See also New Mexico Advisory Opinion Concerning Social Media (2016) (“a judge’s supervisory duties include ensuring that court staff do not participate in social networking that would undermine the judge’s responsibilities.  Examples of such activity include engaging in social media exchanges that either involve ex parte communications or statements concerning pending or impending cases”).

Interpreting the codes of conduct for court staff adopted in their jurisdictions, the Arizona Supreme Court Judicial Ethics Advisory Committee and the U.S. Judicial Conference Committee on Code of Conduct have issued extensive advisory opinions on judicial employees’ use of social media.  See Arizona Advisory Opinion 2014-1; U.S. Advisory Opinion 112 (2014).

Marching up-date

In a new opinion, the New York Advisory Committee on Judicial Ethics stated that judges may permit their law clerks to participate in peaceful Black Lives Matter protests away from the courthouse during non-working hours.  New York Opinion 2020-141.  However, the opinion advised the judges to instruct their clerks not to carry signs calling for the arrest or prosecution of police officers involved in a specific shooting and not to remain with any protestors engaging in vandalism or violence.  The advice applied only to law clerks personally appointed by the judges who do not have quasi-judicial titles or functions.

The Center for Judicial Ethics has compiled and posted on its website summaries of judicial ethics advisory opinions about judges and staff participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events.  Also, please watch the CJE’s inaugural CourtClass Ethics-in-Brief tutorial on judges and court employees participating in marches and demonstrations.

Review and approve

The Minnesota Board on Judicial Standards publicly reprimanded a judge for failing to supervise her law clerk, approving her clerk’s inaccurate timesheets, and exchanging inappropriate emails with the clerk.  Public Reprimand of Leahy (Minnesota Board on Judicial Standards March 19, 2020)

Based on several complaints about the judge’s law clerk, a judicial branch auditor performed a thorough review of the clerk’s timekeeping for December 12, 2018 through March 5, 2019.  According to the audit report, the clerk could not account for 50.5 hours claimed on timesheets during that period.  The audit report states:

Employee was paid for hours not worked during the scope of review.  Employee did not always take the appropriate leave time when necessary.  Employee was not appropriately coding and working the hours captured on the timesheet in accordance with MN Judicial Branch Payroll Policy . . . .

Judge did not properly review and approve employee timesheets to ensure hours recorded by employee were worked.  This is the responsibility of the judge as to the employee’s supervision in accordance with the MN Judicial Branch Payroll Policy . . . .

Employee did not have a teleworking agreement on file that provided hours of work and approval from the judge.

At the time, law clerks were not authorized to work outside of the courthouse or from home.

In a meeting with the Board, the judge stated that she had no basis to criticize the auditor’s report but noted that she was trying to assist the clerk by making work accommodations for the clerk who was going through a difficult time personally.

The Board stated:

A judge may set and communicate expectations for an employee’s work hours in accordance with Judicial Branch policies.  When a judge is not in the courthouse, the judge could look to other judges or court personnel to supervise employees, if necessary.  When an employee is dealing with personal or health issues, a judge may need to provide additional supervision to ensure the employee is fulfilling the employee’s duties.  Proper supervision of employees is critical to maintaining cordial relationships with court administration and to maintaining public confidence in the judiciary.

See also In the Matter of Groneman, 38 P.3d 735 (Kansas 2002) (public censure for allowing his administrative assistant to work a second job with the Kansas Turnpike Authority at times that conflicted with her judicial branch duties and signing timesheets that falsely claimed the assistant was working at her judicial branch employment when she was working at her second job); In re Johnson, 1 So. 3d 425 (Louisiana 2009) (public censure for allowing his full-time judicial assistant to also be employed full-time by the U.S. Small Business Administration, in addition to other misconduct); In the Matter of Walters, Public reprimand and conditions (Minnesota Board on Judicial Standards April 22, 2014) (public reprimand for allowing his law clerk to take some pro bono bankruptcy cases, which he worked on during his regular work hours, and signing and approving the clerk’s timesheets even though he knew or should have known that the clerk did not work the hours reported on the timesheets, in addition to other misconduct).

During the auditor’s review of the clerk’s timekeeping, inappropriate use of judicial branch emails by the judge and the clerk was discovered, including “comments that could reasonably be considered harmful to the reputation and business of the Judicial Branch” and comments about matters before the court while court was in session.

The judge and the clerk disparaged attorneys and parties in emails.  For example, in an email with the subject line “[S]hoot me already,” the judge wrote of an attorney:  “He is an awful attorney.”  Of a party, the judge wrote:  “He is a most obnoxious mean man.”  In another matter, the judge wrote in an email to the clerk:  “Kill me,” in response to an email about the attorney appearing before her.

During a jury trial regarding a criminal sexual conduct charge, the clerk wrote:  “[Y]our last sexual experience;” the judge responded: “EEEEEEEEEEEkkkkkkkkkkkkkkkkkk.”

Regarding another criminal jury trial, in an email with the subject, “[C]an you keep a secret?” the clerk wrote:  “This VD sucks.  Don’t tell anyone.” The judge responded:  “Deep sigh.”  “VD” stood for voir dire.

In another criminal jury trial, the clerk stated in an email:  “[J]ust accept the [jury] panel and put on [the] case!”  The judge responded:  “They won’t . . . the [S]tate will ask a million dumb questions about burden of proof, etc.”

In an email to the clerk, the judge referred to the sheriff’s department employees involved in a decision to change the warrant process as “stupid people.”

At the meeting with the Board, the judge admitted that her emails with the clerk were inappropriate and that she should have chosen her words more carefully.  The Board noted that, not only did the judge not advise the clerk that the emails were inappropriate, she personally engaged in the same inappropriate use of judicial branch emails.

The Board stated:

The duty to supervise court employees also extends to an employee’s use of electronic communications.  The Code and Judicial Branch policies prohibit a judge from sending disparaging and inappropriate emails.  Even when electronic messages are considered confidential, they may be forwarded outside the Judicial Branch or otherwise made public.  Emails that are disparaging to attorneys, litigants, and witnesses violate Rule 2.8(B).  Rule 2.8(B) requires a judge to “be patient, dignified, and courteous to litigants, jurors, witnesses, court staff, . . . and others with whom the judge deals with in an official capacity, and shall require similar conduct of lawyers, court staff, . . . and other subject to the judge’s direction and control.”

 

 

To hear and decide

Recently, the California Commission on Judicial Performance publicly admonished a judge for delegating his responsibility to conduct case management conferences to his court clerk.  Public Admonishment of Hiroshige (California Commission on Judicial Performance October 24, 2018).

Case management conferences are scheduled to address items such as what discovery issues are anticipated, whether discovery is complete, the nature of the injuries, the amount of damages, and any additional relief sought, as well as ministerial issues, such as the setting of a jury trial date.  Counsel for represented parties and each self-represented party must appear by telephone or personally and must be prepared to discuss and commit to the party’s position on the issues unless a judge issues a case management order based on the parties’ written submissions after determining that a conference is not necessary and notifying the parties.

In contrast, the judge’s practice was to review the parties’ written submissions and provide his notes to the court clerk for use during the conference at which the parties were still required to appear.  In 2010, the Commission privately admonished the judge for this practice.

The judge continued the practice despite the private admonishment.  In response to the Commission, the judge explained that, after the private admonishment, he posted a notice in his courtroom advising counsel and parties that he had reviewed all submitted case management conference statements and indicated to the clerk the range of dates that should be scheduled in each case, that “[t]he clerk will meet & confer with counsel/parties and attempt to schedule dates in court that are agreeable to all parties,” and that, if there is any disagreement, “please request to discuss the issue with the court.”

The Commission found that, as noted in the private admonishment, the judge’s practice violates the requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  The Commission stated that the judge’s “[i]mproper delegation of judicial responsibilities to the court clerk constitutes misconduct” and “dereliction of duty.”

The Commission explained that the judge’s “practice of having his clerk meet with parties and counsel and convey his decisions in court gives the appearance that the clerk, rather than the judge, is running the court.”  Further, it stated, discussions between the judge and parties or counsel can effectively resolve issues that may not have been apparent from the written submissions, and, therefore, “an appearance before a judge at a case management conference can be more efficient and effective in terms of the disposition and management of a case than issuing an order without an appearance before a judge.”

The fall 2016 issue of the Judicial Conduct Reporter has an article analyzing previous discipline cases involving improper delegation of adjudicative responsibilities.

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.