Employee Rules

Courts can set an example for the bar by encouraging their own attorney employees to do pro bono work. See below to learn about policies and rules allowing court employees to do pro bono work.

Federal

Canon 4, Code of Conduct for Judicial Employees

According to Canon 4 of the Code of Conduct for Judicial Employees, a judicial employee can provide pro bono legal services in civil matters, “so long as such pro se, family, or pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the judicial employee’s workplace, and does not interfere with the judicial employee’s primary responsibility to the office in which the judicial employee serves, and further provided that… in the case of pro bono legal services such work:

  1. is done without compensation;
  2. does not involve the entry of an appearance in any federal, state, or local court or administrative agency;
  3. does not involve a matter of public controversy, an issue likely to come before the judicial employee’s court, or litigation against federal, state or local government, and
  4. is reviewed in advance with appointing authority to determine whether the proposed services are consistent with the foregoing standards and the other provisions of the code.

State

Arizona

According to Canon 2.6(A) of the Arizona Code of Conduct for Judicial Employees, Judicial employees, “may explain how to accomplish various actions within the court system and provide information about court procedures, without recommending a particular course of action."

In addition, under Rule 3.1(B) of the Code, ". . . judicial employees shall not engage in any business activity or secondary employment that:

  1. “Involves an organization or a private employer whose officers, employees, or agents are regularly involved as a litigant, an attorney, or a witness in cases filed with the court in which the judicial employee is employed;
  2. Requires the employee to appear regularly in judicial or administrative agency proceedings."

However, the commentary to the Code makes clear that judicial employees are free to teach, lecture or write on any subject.

California

According to Tenet Five of the Code of Ethics for the Court Employees of California, court employees must refrain from any actual impropriety such as soliciting funds on the job and recommending private legal service providers. Furthermore, according to Tenet Seven, court employees must "serve the public by providing procedural assistance . . . without giving legal advice.”

Delaware

According to the Delaware Code of Conduct for Judicial Branch Employees, Section D(2), “judicial branch employees may engage in…volunteer services as long as such services are completed outside of the employee’s normal working hours, do not conflict with the performance of the employee’s official responsibilities, and do not involve potential conflicts of interest or the appearance of a conflict of interest.”  

In additional, the Delaware Code of Conduct for Law Clerks, Canon 5(D), a “law clerk shall not practice law in any federal, state, or local court, or undertake to perform legal services, whether or not for remuneration.”

Iowa

According to Rule 11.3 of the Employee Code of Ethics, the employee's position within the judicial branch deserves primary attention. Thus, outside employment is permissible only if it complies with all of the following criteria:

  1. The outside employment is not with an entity that regularly appears in court or conducts business with the court system.
  2. It does not require the employee to have frequent contact with attorneys who regularly appear in the court system.
  3. The outside employment is capable of being fulfilled outside working hours and is not incompatible, inconsistent, or in conflict with the performance of the employee's duties and responsibilities.
  4. The outside employment does not require or induce the employee to disclose confidential information contained in court records or acquired through official duties."

Massachusetts

According to Canon 3 of Rules of the Massachusetts Supreme Judicial Court, a Clerk-Magistrate shall not engage in the practice of law.  Canon 4(D) states that, "[a] Clerk-Magistrate may use his or her title to engage in activity to improve the law, the legal system, or the administration of justice." In addition, under Canon 5(B), a Clerk-Magistrate "may participate in civic and charitable activities that do not reflect adversely on the Clerk-Magistrate's impartiality or interfere with the performance of his or her official duties. A Clerk-Magistrate may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members . . ." Accordingly, a Clerk-Magistrate "may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office or solicit his or her staff for that purpose."

Minnesota

According to the Minnesota Judicial Council, Policy 307, “no Minnesota state court employee shall engage in the practice of law.” However, an attorney employed by the judicial branch, may “perform pro bono legal services through a pro bono legal clinic, approved pursuant to Rule 2B of the Continuing Legal Education Board, involving uncontested matters or matters not pending before any court or government agency, e.g., preparation of wills through Wills for Heroes. An attorney employee providing pro bono legal services may not appear in court, give legal advice pertaining to, or draft or review documents for matters that may come before any court or government agency as a contested matter.”

Mississippi

According to Rule 47 of the Mississippi Rules of Appellate Procedure, "[n]o one serving as clerk of the Supreme Court or as a law clerk or secretary to a justice of the Supreme Court or a judge of the Court of Appeals or as an employee of either court shall practice as an attorney or counselor in any court or before any agency of government while holding that position. No such person shall, after separating from that position, ever participate, by way of any form of professional consultation or assistance, in any case that was pending in either court during the tenure of such position.”

Nevada

Under Canon 3.2(A) of the Nevada Model Code of Conduct for Judicial Employees, a full-time judicial employee who is otherwise qualified to practice law in the State of Nevada may "provide pro bono legal services in civil matters, so long as such…pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the judicial employee's workplace, and does not interfere with the judicial employee's primary responsibility to the office in which the judicial employee serves."

However, the pro bono work must be done without compensation, must not involve the entry of an appearance in any federal, state, or court or administrative agency, must not involve a matter of public controversy, an issue likely to come before the judicial employee's court, or litigation against the federal, state, or local government, and must be reviewed in advance by the appointing authority to determine whether the proposed services are consistent with the Nevada Code of Judicial Conduct.

New Jersey

According to Canon 1(F) of the Code of Conduct for Judiciary Employees, "[n]o court employee shall give legal advice outside the scope of his or her judiciary employment, or . . . recommend the names of private attorneys." Furthermore, Canon 5(B)(2) states that subject to notice requirements, "any court employee may teach, lecture or write on any subject, " and Canon 5(b)(7) states that "[n]o judiciary employee shall engage in outside employment that regularly requires the employee's appearance in court, or before an arbitrator, mediator, or hearing officer.

In addition, Canon 5(b)(8) states that "[n]o judiciary employee shall accept court appointment as an appraiser, receiver, commissioner, guardian ad litem, administrator, or other title for which a fee may be allowed in any matter pending in any court unless the employee agrees in advance to waive such fee." Canon 5(C)(1) clarifies that "[l]aw clerks, judges' secretaries, and employees in high-level managerial or policy-making positions shall be subject to the same limitations imposed on judges by the Guidelines for Extrajudicial Activities for New Jersey Judges . . . . Employees subject to this Canon may apply for permission on a case-by-case basis to undertake activities otherwise precluded that could not reasonably be perceived by the public as impairing the appearance of impartiality of the judiciary.

Finally, according to Canon 5(D)(2) court employees may not solicit funds at any time from persons known to them as lawyers or litigants, nor can they solicit funds from charitable organizations while at the courthouse or while engaged in official functions.

Pennsylvania

According to the Supreme Court of Pennsylvania Per Curiam Order No. 454 (Dec. 2015), ". . . law clerks employed in the Unified Judicial System are prohibited from appearing as counsel in the division/section of the court in which the judge by whom they are employed serves. Furthermore, in courts which have no formally established divisions or sections, the law clerks are prohibited from appearing as counsel in the court itself."Rule 3121 of the Pennyslvania Rules of Appellate Procedure prohibits appellate court law clerks from practicing law "without prior approval of the judge on whose staff such person is employed or of the president judge if such person is not so employed." However, the rule does not apply to pro bono activities, which are allowed as long as they are, “performed without compensation; do not involve the entry of an appearance before any court or tribunal; do not involve a matter of public controversy, an issue likely to come before the person’s court, or litigation against federal, state or local government; and are undertaken after written approval of the Justice or Judge for whom the person is employed and the Chief Justice, or the President Judge of the Superior Court or Commonwealth Court, depending on which court employs the person.”

South Carolina

According to Canon 5(D) of the South Carolina Code of Conduct for Staff Attorneys and Law Clerks, a "staff attorney or law clerk shall not practice law in any federal, state, or local court, except in his official capacity as a staff attorney or law clerk, or undertake to perform legal services for any private client in return for remuneration. " The lone exception to the rule allows the attorney to perform legal work necessary for the management of his personal affairs.

However, according to Canon 4(A) of the South Carolina Code of Judicial Conduct, a "staff attorney or law clerk may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, court administration, and the administration of justice." Furthermore, Canon 4(B) of the Code states that the clerk "may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice, but should not participate in fund-raising activities for such an organization or agency."

Canon 5(B) of the Code states that a "staff attorney or law clerk may participate in civic and charitable activities that do not detract from the dignity of his office or interfere with the performance of his official duties. He may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization and solicit funds for any such organization subject to the following limitations:

  1. He should not use or permit the use of the prestige of his office in the solicitation of funds.
  2. He should not solicit his subordinates to contribute to or participate in any civic or charitable activity, but he may call his subordinates' attention to a general fundraising campaign . . .
  3. He should not solicit funds from lawyers or persons likely to come before the court he serves."

Tennessee

According to Tennessee Supreme Court Rule 5, a law clerk may act pro se and perform routine legal work incident to the management of the personal affairs of the assistant or a member of the assistant's family, and may provide pro bono legal services in civil matters, so long as such pro se, family, or pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the assistant's workplace, and does not interfere with the assistant's primary responsibility to the judge or justice whom the assistant serves, and further provided that:

  1. in the case of pro se legal work, such work is done without compensation (other than such compensation as may be allowed by statute or court rule in probate proceedings);
  2. in the case of family legal work, such work is done without compensation (other than such compensation as may be allowed by statute or court rule in probate proceedings) and does not involve the entry of an appearance in any court;
  3. in the case of pro bono legal services, such work: (i) is done without compensation; (ii) does not involve the entry of an appearance in any court; (iii) does not involve a matter of public controversy, an issue likely to come before the assistant's court, or litigation against federal, state or local government; and (iv) the proposed services are reviewed in advance with the appointing authority to determine whether the proposed services are consistent with the foregoing standards.

Washington

According to Washington RCW 2.56.020, neither the Administrator for the courts nor any assistant shall engage in the private practice of law except when performing "legal services of a charitable nature." However, if the "legal services of a charitable nature" interfere "with the duties of the administrator or any assistant" the legal services may not be performed.

 

Updated April 2020