January 01, 2014

The Public Interest Fellowship Model for Judicial Clerkship: A Win-Win for Recent Law Grads, Law Schools, and the Courts

By Judge Elizabeth S. Stong

The ABA Task Force on Legal Access Job Corps has the twin goals of matching unmet needs for legal services across the United States with the significant number of new lawyers seeking employment. If you describe this “justice gap” to most lawyers, they will imagine an underserved urban neighborhood where the basic needs of individuals, families, children, and small businesses simply aren’t being met. Or perhaps they will recall hearing ABA President James Silkenat describing rural areas of the country where a prospective client cannot locate a lawyer to represent him or her to purchase a home, draft a will, collect child support, incorporate a business, pursue a benefits claim, or undertake any of the dozens of routine legal matters that arise in the daily life of a family or business—routine, that is, if you have a lawyer—because the nearest lawyer’s office is hundreds of miles away.

But not every unmet legal need arises in the context of a client’s access to the justice system. Rather, some lie within our federal and state courthouses themselves, and within the judge’s chambers. Faced with growing numbers of cases and cases of growing complexity, the workload of federal and state judges seems to grow every year. On the other side of the ledger, funding at both the federal and state levels remains flat at best—and has been reduced over and over again in many jurisdictions.

How can courts continue to provide access to justice, including a prompt hearing, a timely decision, and attentive and facilitative case management when it seems that, every year, we are called upon to do more with less? For the last several years, one part of the answer to this question has been a new kind of collaboration between federal and state courts on the one hand and law schools, law firms, and other institutions on the other, which links some of the best recent law school graduates with law clerk and internship opportunities in federal and state judicial chambers.

How does this work? Law students and recent graduates seek out clerkship opportunities with judges that are open to the possibility of hiring an unpaid law clerk or intern. At the same time, law schools, law firms, and other organizations offer funding in the form of public interest fellowships, stipends, and similar awards and grants in support of the law clerk’s work during the clerkship term.

It’s worth considering what this arrangement has to offer for each of the participants. Let’s start with the law students and recent graduates. Anyone who has been fortunate enough to begin his or her legal career as a law clerk to a federal or state judge knows from experience what “my judge,” U.S. District Judge David Mazzone of the District of Massachusetts, told me on the first day of my clerkship: serving as a law clerk to a federal judge is the “second-best job a lawyer can have.” The best job, he quickly added, was his—serving as a federal judge. Federal judges receive dozens, even hundreds, of applications for every law clerk position, from law students and recent law graduates, who seek the opportunity to learn how to think, analyze, listen, and write for the court, and who also feel the call to public service. Many may sense that someday, they too would like to become a judge, and others may view that the clerkship experience will help them to be effective in their practice. (It’s not a bad credential, either.) But with so many more qualified and motivated applicants than there are positions, many prospective law clerks that would benefit greatly from the experience may never have the opportunity.

What about the courts—and the judges? You don’t have to look too far to find a court that is straining to meet the growing needs of its caseload with resources that are not keeping pace with the demands. At one end of the spectrum, courts work hard to meet the special requirements of complex multiparty cases. Here in the bankruptcy court, a large corporate reorganization may require hearings as soon as the same day that it is filed, and dozens of sophisticated lawyers and other professionals may have significant roles in moving the case forward. At the other, courts strain to provide meaningful access to justice to self-represented individuals who cannot afford to hire a lawyer. And, of course, each type of case is equally important to those involved and requires the time and careful attention of the judge and chambers team. Sometimes, funds are available for an additional temporary law clerk position based on the court’s caseload, and that can help to provide invaluable support to the process. But even with this support, the needs of chambers remain substantial.

Here’s where the opportunities created by these collaborative efforts, including law school public interest fellowships and law firm public interest stipends, have a role to play. Law schools plainly recognize that it can be important to their mission to support their recent graduates in their desire to begin their careers with a judicial clerkship, for many reasons. Of course, the experience—and the credential—are invaluable in a new lawyer’s professional development, and in his or her employment prospects too. And every time a law clerk is placed, that law school strengthens its relationship with the court. As Brooklyn Law School Dean Nicholas Allard states, “We view our Brooklyn Law Graduates’ Public Service Fellowship program as a resource for the entire legal community. For the courts, recent graduates bring efficiency, sound training, and a genuine desire to serve. For the Law School, we strengthen and extend important relationships with the legal community. And for the Fellows, the program opens doors to where their efforts are most needed—leading not just to personal and professional development, but to a more civil and just society.”

Many law firms also recognize the value of the clerkship experience for their incoming associates. In an unpredictable market for legal services, some firms have invited their incoming associates to defer their starting dates for as much as one year in order to pursue an unpaid judicial clerkship or other opportunity for public service, and have supported this with substantial stipends. In the courts, these arrangements require careful attention to the ethics rules applicable to law clerks and other judiciary employees, including the restrictions on receiving payment from outside sources during a law clerk’s time with the court, but many courts have become very experienced with these rules. And the benefits to all the participants are huge—the firm reduces its costs for that year and gains a significantly more experienced new associate, the law clerk has the opportunity to be part of a judge’s chambers, and the judge has one more member of his or her chambers team to accomplish the work of the court.

How does this work in practice? In our chambers, we seek applicants for both paid and unpaid term law clerk positions every year. We look for applicants with the same qualities: a record of accomplishment inside and outside the classroom, excellent references, a commitment to the work of the court, and an appreciation that, in a judge’s chambers, there are no small or unimportant cases. We also look for those intangible qualities that indicate that the prospective law clerk will bring dedication, perspective, and a collaborative spirit to all of the work of chambers. Judgment, grounded in confidence and life experience but tempered by humility, is also important. Viewed another way, our standards and the position are exactly the same, regardless of whether the law clerk position is a paid or unpaid line within the court.

When the law clerk enters on duty, here too, no distinction is made between a paid and an unpaid position. We administer the same oath; the same nameplate goes on the door; and the same titles, tasks, and burdens are shared by all.

And, importantly, when the law clerk’s appointment ends, generally after a one-year term, we make no distinction with respect to the title, position description, or participation in our chambers alumni family. We like to say that “chambers is forever,” and the professional relationship that is formed between a law clerk and a judge should be a life-long resource for the law clerk. These law clerks deserve no less, and they have often accepted their positions at significant financial sacrifice. A clerkship that is facilitated by a public interest fellowship or stipend, like every judicial clerkship, can lead to extraordinary opportunities, and my former (unpaid) law clerks have always secured exceptional—and paid—positions following their clerkship year, and are now working in the private sector as associates at leading national and international law firms and in the nonprofit and public sectors as a staff attorney in a legal services office, as a prosecutor—and as law clerks.

What are the ethical issues that may arise when law firms pay stipends to law clerks? In federal courts, the ethics rules applicable to law clerks and other judiciary employees restrict individuals from receiving payment from outside sources during the employee’s period of service with the court. Uncompensated volunteers, whether they are called “volunteer law clerk,” “extern,” “intern,” or some other term, are considered judicial employees and are bound by the Code of Conduct for Judicial Employees. A prospective law clerk may accept a payment from a law firm before the clerkship begins, if the law clerk is not legally obligated to repay the firm. Salary advances, either before or during a clerkship, are not permitted because they are viewed as loans, and this kind of obligation is inconsistent with the notion of an independent judiciary. Nor may a law clerk or intern accept payments during the clerkship, based on these same considerations. But a former law clerk is not bound by these rules, and, as a result, he or she may accept payments such as clerkship bonuses after the clerkship ends.

Smart lawyers know how to solve their clients’ problems. Insightful law schools have led the way in addressing the problems faced by their recent graduates as they confront a challenging legal job market by supporting their best students and graduates with public interest fellowship opportunities. Courts and judges have wisely embraced the chance to bring on board additional law clerks to help meet the needs of a growing workload and diminishing resources. Could there be a better model for the ABA’s Legal Access Job Corps?