Risk Update

Ex-Clerk Conflicts? — “Playbook + Inside” Information Causing Concerns

With a hunch that the provocative title a NYT editor crafted might raise eyebrows, I nevertheless found the substance of this discussion interesting, and certainly risk radar worthy: “Law Firms Pay Supreme Court Clerks $400,000 Bonuses. What Are They Buying?” —

  • “Supreme Court justices make $265,600 a year. The chief justice gets $277,700. Their law clerks do a lot better. After a year of service at the court, they are routinely offered signing bonuses of $400,000 from law firms, on top of healthy salaries of more than $200,000.”
  • “Still, the former clerks are typically young lawyers just a couple of years out of law school, and the bonuses have a second and more problematic element, said Stephen Gillers, an expert on legal ethics at New York University. ‘They’re buying something else: a kind of inside information about how the court is thinking and how individual justices might be thinking,’ he said.”
  • “The Supreme Court appears to recognize that this is a problem. Its rules impose a two-year ban barring former clerks from working on ‘any case pending before this court or in any case being considered for filing in this court.’ (The rules also impose a permanent ban on working on ‘any case that was pending in this court during the employee’s tenure.’)”
    “Professor Gillers said the rule was a partial solution. ‘The two-year ban is meant to dissipate the value of the inside information,” he said. “You cannot eliminate it altogether.'”
  • “Letting lawyers exploit that relationship raises concerns about fairness, the study said. ‘Law firms throw money at former clerks for the same reason companies, unions and organized interests hire former government officials as lobbyists: They expect these insiders to influence their previous employers,’ the study said.”
  • “Former clerks have come to dominate Supreme Court arguments. In the past 15 years, the study found, about 75 percent of arguments before the court included at least one former clerk.”
  • The article cites two studies on the matter: available here and here.

Curious, I looked for other discussion of this topic beyond the Supreme Court, surfacing a few relevant and interesting resources. First: “What to do when your adversary was the Judge’s clerk?” —

  • “Most of the reported cases involving judges and former clerks deal with the situation where the clerk was employed while a matter was pending and later joins a firm involved in the same matter or representing one of the parties. That law is well-settled.”
  • “But suppose the issue is not whether the case was in front of the judge in some fashion when your adversary was clerking; what if the issue is more thorny? Do they still have a close enough relationship to put your client at a perceived or actual disadvantage?”
  • “After reading about In Re: Gizella Pozsgai, case number 19-3872 in the U.S. Court of Appeals for the Third Circuit, you have to consider raising the delicate issue before the judge and the adversary and hope for honest and complete answers. (Although that doesn’t always work so well. See below).”
  • “In Patzner v Burkett, 779 F. 2d 1363 (8th Cir. C.A. 1985), the court noted recusal is left to the judge’s discretion and declined to act when the adversary made no claim of bias towards the former clerk, although the clerk had worked for the judge only nine months prior to the inception of the case.”
  • “The case is heading to the Third Circuit and bears watching. In the meantime, if you clerked and have a case assigned to your judge, promptly notify your adversary of the details of the clerkship and your present relationship with the judge.”

Next, Maryland on the matter, which mentions and distinguishes its treatment from other jurisdictions, all focusing on the judge side of the equation, in “Maryland Judicial Ethics Committee 2017-21

  • “Is a judge required to disclose the fact that a lawyer appearing before the judge is his/her former law clerk?”
  • “Absent a relationship between the judge and the former law clerk that would otherwise require the judge to recuse, a judge is not required to disclose the fact that a lawyer in a case over which the judge is presiding is a former law clerk.”
  • “Some states have addressed the law clerk issue by enacting rules or policies that impose temporal restrictions upon a judge’s ability to preside over cases in which former law clerks appear as counsel. See New Jersey Revised Code of Judicial Conduct Rule 3.17(e) (Judge should not preside over an action in which a former clerk appears for six months following termination of clerkship.); Delaware Conflict of Interest Policies for Law Clerks (same). There is no analogous provision in the Maryland Code of Judicial Conduct.”

This paper explores the “side switching” aspect of clerks movement, not the playbook element: “Conflicts of Interest for Former Law Firm Clerks Turned Lawyers” —

  • “There is no consensus for how the legal profession should treat a lawyer who has a conflict that arises from their time working as a law clerk while in law school.”
  • “Clerkships are beneficial to both the student and the potential employer, and to limit these educational experiences due to fear of subsequent imputed disqualification would be a detriment to the legal community.”
  • “It is necessary to implement a change in the ethical approach to a clerk’s conflicts of interest. One potential solution states could adopt is to permit a clerk to be screened in the same manner as a paralegal or legal assistant would. Consideration must be given to how a client would feel if they knew someone who had previously worked on their case was now working for the opposing law firm, and for this reason the ethics rules should be empathetic to a client’s legitimate concerns for a conflict of interest.”

Further, Karen Rubin digs into details on relevant Texas and Ohio opinions, in: “Hiring student law clerks and avoiding disqualification — two states weigh in.”