Risk Update

Clerk Conflicts — Ex-Clerk Now at Firm Doesn’t Warrant Disqualification

It definitely feels like we’re seeing more stories about “law clerk conflicts allegations.” This one reads more cut and dry. But it’s an interesting to see how and when these come up, and how the play out. The latest example via Mr Volokh: “No Recusal When Judge’s Ex-Clerk, Who Clerked While Case Was Pending, Now Works for a Law Firm in the Case” —

From a decision on April 21 by Judge James L. Robart (W.D. Wash) in Straw v. Avvo, Inc.:

  • “Mr. Straw assert[s] claims against Defendant Avvo, Inc. … for defamation; tortious interference with prospective contractual relations; intentional infliction of emotional distress; and violations of Title II of the Americans with Disabilities Act. These claims arose from statements that Avvo published on Mr. Straw’s profile in a directory of lawyers on the Avvo.com website…
  • “Mr. Straw … argues that recusal is necessary because Avvo’s law firm, Davis Wright Tremaine LLP (“DWT”), employs an attorney who formerly served as one of the undersigned’s law clerks while Mr. Straw’s case was pending in this court. He contends that “the existence of [the law clerk] on the roster of attorneys at DWT … favors the trial judge’s clerk, his firm, and that firm’s clients.” As a result, according to Mr. Straw, the undersigned violates his duty to be fair and impartial by continuing to preside over this case.”
  • “Mr. Straw asserts that because ‘Avvo has been wrong so severely in injuring [him] and with its false statements to courts and poor ethical judgment, taking data not allowed to be republished and publishing it to injure [him] over [his] objections, [he] want[s] a trial judge who has NO CONNECTION whatsoever to Avvo, its parent companies, or its lawyers.’ If there is no such judge in this district, he asks that the Chief Judge of the Ninth Circuit ‘find someone who is unconnected and disinterested.'”
  • “The undersigned declines to recuse … from this case. The fact that a former law clerk now works for a law firm that represents a party in a matter before the court does not, without more, provide a basis for recusal… Moreover, the attorney to whom Mr. Straw refers in his motion did not work on Mr. Straw’s case while he served as a law clerk and, according to DWT, has not worked on Mr. Straw’s case since joining that firm… Because the undersigned harbors no bias against Mr. Straw or in favor of Avvo or its attorneys, he declines to recuse himself.”

The Chief Judge has declined to require recusal:

  • “Plaintiff has not set forth a basis upon which Judge Robart’s impartiality may reasonably be questioned. Plaintiff does not allege that Judge Robart’s former clerk has worked on this matter on behalf of Avvo. Plaintiff does not allege that Judge Robart’s former clerk has any information related to the case that is not in the public record. Plaintiff does not allege that any communication related to his case has occurred between Judge Robart and his former clerk.”
  • “Rather, Plaintiff speculates, without a factual basis, that Judge Robart will favor the clients of a large firm that now employs a single attorney who previously clerked for Judge Robart. Such speculation does not establish an objective basis to conclude that Judge Robart’s impartiality can reasonably be questioned.”
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