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July 01, 2022 Feature

Judicial Ethics and Law Clerks

By Marla N. Greenstein

In many ways, law clerks are an extension of the judge and the judicial position. Judges have a trusting relationship with their clerks and serve as the clerk’s chief mentor. This relationship entails assurance that deliberations and comments about proceedings remain confidential. So too, law clerks buffer the judge from communications with parties or others who may communicate with chambers. Consequently, it is not unusual for judges to extend their ethical obligations to their clerks.

There are a few provisions of the ABA Model Code of Judicial Conduct that explicitly apply to law clerks (as well as other court staff). Rules 2.3(B), 2.8(B), 2.9(D), and 2.10(C) require judicial staff to not manifest bias or prejudice; be patient, courteous, and dignified; avoid ex parte communications; and refrain from making public statements that may affect the fairness of a pending or impending matter. And then there is the “catch-all” provision under Rule 2.12(A): “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.”

While some courts have developed ethics codes that specifically apply to law clerks or all court employees, many courts have not. The ABA Judicial Division has a working committee attempting to draft a Model Code of Law Clerk Conduct that would parallel the Code of Judicial Conduct. In the interim, judges have differing expectations for law clerk conduct, especially as to law clerks’ personal activities.

As young professionals setting off on new careers, law clerks are at a point in their lives of both professional and personal development. While judges appropriately expect confidentiality, professionalism, and courtesy from their clerks, expectations that law clerks should be socially isolated from lawyers or free from political expression are both unrealistic and unfair. While well-meaning, restrictions on a law clerk’s personal relationships or political expression are fraught with problems.

Unlike judges, law clerks are not indispensable to any given case. It is relatively easy to isolate a law clerk due to a law clerk’s personal conflict or appearance of bias. For example, once a law clerk has accepted future employment with a law firm or agency office, it is accepted practice to notice that employment relationship and isolate the law clerk from that law firm’s cases for the pendency of the clerkship. So too, if a law clerk has a dating relationship with a lawyer, the clerk can relatively easily be isolated from all cases where that lawyer will appear.

More difficult are limitations on political activities or expression that would not be allowed if the law clerk were a judge. While there likely is a strong connection between some political issues and cases that may come before the court, many have no connection to the court. If there is concern that the law clerk would somehow be associated with the court or the judge, restricting the law clerk from referring to their position should address those concerns. Court system policies will likely address any direct conflicts for the court. Recent Colorado Ethics Advisory Opinions illustrate this need. When initially faced with an inquiry under Rule 2.12(A), the Colorado Ethics Opinion concluded that law clerks and externs should be counseled by the judge to not participate in a rally or demonstration in the political sphere as it could be imputed to the judge (Colo. Jud. Ethics Advisory Bd., Advisory Op. 2020-02). Subsequent to that opinion, their court amended Rule 2.12(A) to narrow the application of the Code to staff actions that are “in the performance of their official duties or in the presence of the judge.” A follow-up advisory opinion interpreting that modification to the Colorado Code acknowledged the change and withdrew the prior opinion (Colo. Jud. Ethics Advisory Bd., Advisory Op. 2021-03).

As with any good mentorship, a judge’s best guidance for a law clerk is to lead by example. Law clerks are highly motivated to achieve the Code’s goal of acting at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary (Rule 1.2). But it is equally important to recognize the unique role of the law clerks and their personal needs for developing full, meaningful adult lives. The law clerk is truly an extension of the judge in the courthouse and when performing official duties. The law clerk, however, is also an independent, thoughtful citizen learning how to become the kind of lawyer who may, one day, be willing to also make the personal sacrifices that the Code demands of judges.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].