Code of Conduct for Staff Attorneys and Law Clerks Canon 1

NORTH CAROLINA COURT OF APPEALS

CODE OF CONDUCT FOR STAFF ATTORNEYS AND LAW CLERKS

CANON 1

A STAFF ATTORNEY OR LAW CLERK SHOULD CONDUCT HIMSELF OR HERSELF IN A MANNER AS TO UPHOLD AND PROMOTE THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

An independent and honorable judiciary is indispensable to justice in our society. A staff attorney or law clerk should observe, and should impart to anyone under his or her supervision, high standards of conduct so that the integrity and independence of the judiciary may be preserved and his or her office may reflect a devotion to serving the public. The provisions of this Code should be construed and applied to further those objectives.

CANON 2

A STAFF ATTORNEY OR LAW CLERK SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS OR HER ACTIVITIES

A staff attorney or law clerk should not engage in any activities that would put into question the propriety of his or her conduct in carrying out the duties of his or her employment. He or she should not allow his or her family, social, or other relationships to influence his or her judgment or the performance of the duties of his or her employment. He or she should not lend the prestige of his or her position to advance the private interests of others; he or she should not convey the impression that he or she is in the position to influence the Court or any judge, nor permit others to convey the impression that they are in a special position to influence him or her.

CANON 3

A STAFF ATTORNEY OR LAW CLERK SHOULD PERFORM THE DUTIES OF HIS OR HER OFFICE IMPARTIALLY AND DILIGENTLY

The employment duties of a staff attorney or law clerk take precedence over all his or her other activities. His or her duties include all the duties assigned by the employing judge or the Court of Appeals. In the performance of these duties the following standards apply:

A. A staff attorney or law clerk shall respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A staff attorney or law clerk shall be faithful to the highest standards of his or her profession and maintain professional competence in it. He or she should be patient, dignified, courteous, and fair to all persons with whom he or she deals in the performance of his or her duties. He or she should diligently discharge the responsibilities of his or her position in an efficient, fair-minded, and professional manner.

C. A staff attorney or law clerk should never perform any function of his or her position in a manner which improperly favors any litigant or attorney, nor should he or she imply that he or she is in a position to do so.

D. A staff attorney or law clerk shall disqualify himself or herself in a manner in which his or her impartiality might reasonably be questioned, including but not limited to instances where: (1) he or she has a personal bias or prejudice concerning the matter:

(2) he or she served as a lawyer in the matter in controversy; or a lawyer with whom he or she previously was associated in private practice, either as lawyer or law clerk, served during such association as a lawyer concerning the matter;

(3) he or she, or his or her spouse, or any person within the third degree of relationship to either of them, is known to have an interest that could be substantially affected by the outcome of the proceeding;

(4) he or she, or his or her spouse, or any person within the third degree of relationship to either of them, is a party to the proceeding, or an officer, director, or trustee of a party, or a lawyer in the proceeding.

CANON 4

A STAFF ATTORNEY OR LAW CLERK MAY ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE

A staff attorney or law clerk, subject to the proper performance of his or her duties, may engage in the following activities:

A. He or she may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, court administration, and the administration of justice.

B. He or she 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.

C. He or she may promote the development of professional organizations and foster the interchange of technical information and experience with others in his or her profession. He or she may make himself or herself available to the public at large for speaking engagements and public appearances designed to enhance the public’s knowledge of the operation of the court system.

CANON 5

A STAFF ATTORNEY OR LAW CLERK SHOULD REGULATE HIS OR HER EXTRA-OFFICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE DUTIES OF HIS OR HER POSITION

A. Avocational Activities. A staff attorney or law clerk may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other social recreational activities, if such avocational activities do not detract from the dignity of his or her employment or interfere with the performance of his or her duties.

B. Civic and Charitable Activities. A staff attorney or law clerk may participate in civic and charitable activities that do not detract from the dignity of his or her employment or interfere with the performance of his or her duties. He or she 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, except that he or she should not solicit funds from lawyers or persons likely to come before the Court of Appeals.

C. Financial Activities.

(1) A staff attorney or law clerk should refrain from financial and business dealings that interfere with the proper performance of his or her duties, exploit his or her position, or involve him or her in frequent transactions with lawyers or persons likely to come before the Court of Appeals. Before or during a clerkship or tenure as a staff attorney, a law clerk or staff attorney may seek and obtain employment to commence after the completion of his or her service to the Court; if any law firm, lawyer, or entity with whom a law clerk or staff attorney has been employed or is seeking or has obtained future employment appears in any matter pending before the appointing judge, the law clerk or staff attorney should promptly bring this fact to the attention of the appointing judge or his or her attorney supervisor, and shall have no further involvement in connection with such matter. In relation to such future employment, the law clerk or staff attorney may accept payment of relocation expenses from the future employer.

(2) Neither a staff attorney or law clerk nor a member of his or her family residing in his household should accept a gift, bequest, favor, or loan from any person under circumstances that might reasonably be regarded as influencing the performance of his or her duties.

D. Practice of Law. A staff attorney or law clerk shall not practice law in any federal, state, or local court, except in his or her official capacity as a staff attorney or law clerk, or undertake to perform legal services for any private client to return for remuneration. This prohibition, however, shall not be construed to preclude the performance of legal work necessary to the management of the personal affairs of the staff attorney or law clerk, his or her spouse, parents, or minor child, so long as:

(1) such work is done without compensation;

(2) it does not require any act, including the entry of an appearance in a court of this State or of the United States, that would suggest that his or her position is being misused, that preferential treatment is being sought by virtue of the holding of that position, or that would otherwise be inconsistent with his or her primary responsibility to the employing court;

(3) such activity does not conflict or reasonably appear to conflict with court duties or will not reflect adversely on the court or create the appearance of impropriety.

This provision shall not be construed to preclude staff attorneys or law clerks who are members of the reserve components of the armed forces or National Guard from fulfilling the duties in those organizations.

CANON 6

A STAFF ATTORNEY OR LAW CLERK SHOULD REFRAIN FROM CERTAIN POLITICAL ACTIVITY

A staff attorney or law clerk may engage in political activity that does not tend to reflect adversely on the dignity of the Court, or interfere with the proper performance the duties of his or her employment, subject to the following limitations:

A. He or she should not use the prestige of his or her position to advance political interests of others;

B. He or she should not engage in political activity during any period of time within which he or she is expected to perform services for which he or she receives compensation from the State, nor utilize the property, supplies, or funds of the State to solicit support for, or oppose, any candidate, party, or issue in any election. Nothing contained herein shall be construed to interfere with the right of any staff attorney or law clerk to engage as an individual in political activity outside regularly scheduled working hours or at other times when he or she is not performing services for which he or she receives compensation from the State. See N.C.G.S. 126-14.

CANON 7

A STAFF ATTORNEY OR LAW CLERK SHOULD NOT REVEAL THE CONFIDENCES GAINED IN THE COURSE OF OR AFTER HIS OR HER EMPLOYMENT

The relationship between the staff attorney or law clerk and his or her employing judge and the Court is sensitive and privileged. The highest standard of care is required because of the degree to which the lives of others may be affected by even the inadvertent disclosure of non-public or confidential information gained in the course of employment. Disclosure of such confidential information is highly prejudicial to the administration of justice. Therefore:

A. He or she shall never reveal confidences gained in the course of his or her employment except where disclosure is specifically permitted, in writing, by his or her employing judge or the Court.

B. He or she shall insure that all confidential documents are protected from disclosure except where specifically permitted, in writing, by the employing judge or the Court.

C. He or she shall never employ such information for his or her own or another=s personal gain.

D. He or she should not communicate or cause to be communicated, except as required in the performance of the duties of his or her employment, any information, opinion, or rumor about the decision making process of the Court, including, for example, when a decision is likely to be filed, the substance of draft opinions or per curiam opinions, who is writing or may write an opinion, how any judge of the Court as a whole is likely to vote or has voted, and how a case is progressing inside the Court. This policy of confidentiality remains in effect after a decision of the Court has been filed. A former staff attorney or law clerk must observe the same restrictions on disclosure of confidential information that apply to a current staff attorney or law clerk.

Maintaining the Public Trust Ethics for Federal Judicial Law Clerks Second Edition

Federal Judicial Center 2011 An order form for additional copies of this pamphlet appears on the last page. First printing, July 2011 Contents Introduction, 1 How to Approach an Ethics Question, 2 What sources should you consult?, 3 If you have questions after consulting the sources, what should you do?, 3 Are there limits on the Committee’s role?, 4 Will your inquiry be kept confidential?, 5 Confidentiality, 5 Dealing with attorneys, 7 Dealing with the press, 8 Dealing with other judicial employees, 8 Conflicts of Interest, 9 Caution, 13 Political activities, 13 Online activities, 15 Gifts, 17 Community and Other Outside Professional and Social Activities, 19 Compensation for outside activities, 20 Use of office equipment, 21 Career, 23 Ethics Checklist for Federal Judicial Law Clerks, 26 Confidentiality, 26 Conflicts, 26 Caution, 28 Community Activities, 28 Career, 29 Appendix: How To Obtain Online Ethics Resources, 30

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks iii

Introduction New law clerks: welcome to the federal court system. Career clerks: thank you for your continued service. During your clerkship, you will provide valuable assistance as your judge resolves disputes that are of great importance to the parties, and often to the public. The parties and the public accept judges’ rulings because they trust the system to be fair and impartial. Main- taining this trust is crucial to the continued success of our courts. That’s why, although you have many responsibilities that demand your attention, you must never lose sight of your ethical obligations. You need to become familiar with the Code of Conduct for Judi- cial Employees, which has five canons. In brief, the canons provide that you should • uphold the independence and integrity of the judiciary and of your office; • avoid impropriety and the appearance of impropriety in all activities; • adhere to appropriate standards in performing your duties; • avoid conflict with official duties and the appearance of impropriety in all outside activities; and • refrain from inappropriate political activities. Scrupulously follow these canons and the other rules that govern your conduct. Do not assume that good intentions are enough. It is not enough to simply learn and follow the Code of Conduct and other related ethics rules, however. You also need to familiar- ize yourself with and follow your judge’s ethical guidelines. These guidelines may differ from chambers to chambers. Your judge may impose restrictions that go beyond the Code. Although many of your obligations are the same as those of other federal judicial employees, certain restrictions are more stringent because of your special position in relation to the judge. Some obligations continue after your service to the court concludes. Sometimes new law clerks are surprised by some of the canons, although after they analyze those canons, the rationale becomes clear. The canons emphasize avoiding activity that raises the appearance of impropriety, as well as actual impropriety itself.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 1 Many outside activities cannot be neatly separated from your official duties. You will need to maintain a heightened awareness of how others may perceive your actions—in and out of the court. To help you get started, the federal judiciary’s ethics committee, known as the Judicial Conference Committee on Codes of Conduct (the Committee), prepared this pamphlet in cooperation with the Federal Judicial Center. This pamphlet provides an overview of your ethical obligations as well as resources you can consult for further information. These obligations apply to all law clerks, including career clerks, clerks who serve for a defined period of time, and clerks who work full-time or part-time, for pay or as a volunteer. The next section discusses how to approach an ethics question. The following sections present the “5 Cs” as an easy way to remember the main categories of your ethical obligations. They are • confidentiality; • conflicts of interest; • caution (political activities, online activities, and gifts); • community and other outside professional and social activities; and • career. Each “C” section includes examples that illustrate challenges you may face, as well as sources of guidance. The Ethics Checklist for Federal Judicial Law Clerks, on pages 26–29 will help you identify ethics problems that may require you to isolate yourself from a case in your judge’s chambers or refrain from certain activities outside the office. You should complete the checklist and then review it with your judge. How to Approach an Ethics Question The rule to always look both ways before crossing a street provides guidance in approaching an ethics question: move cautiously and carefully. You are responsible for conducting yourself according to the ethics guidelines. Train yourself to stop, think, and evaluate before you take an action—inside or outside of work—that may have ethical implications.

2 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks What sources should you consult? If you identify a potential ethics problem, you can take several steps to resolve it. First, review the sources of your ethical obligations and previous guidance from the Codes of Conduct Committee: • The Code of Conduct for Judicial Employees. The Code applies to almost all judicial employees, including judges’ personal staff, such as law clerks, judicial assistants, secretaries, court law clerks, and staff attorneys. • The Ethics Reform Act of 1989 and the Judicial Conference regulations promulgated under it. The provisions that apply to law clerks address receipt of gifts and honoraria. • Advisory Opinions that the Judicial Conference Committee on Codes of Conduct has issued on questions that arise frequently, including issues specific to law clerks and other judicial employees. • The Compendium of Selected Opinions. The Compendium contains summaries of confidential advice that the Commit- tee has offered in response to individual inquiries from judges and judicial employees. If you do not have these resources at hand, they are readily available to you. The appendix to this pamphlet explains how to obtain ethics resources. Second, remember to consult all the relevant Code canons and Judicial Conference regulations. An activity that may seem permissible under a general section of a canon may not be permissible under a more specific provision. Third, consult with your judge as soon as possible, even if your initial investigation suggests a clear-cut answer. Individual judges or courts may set standards that exceed the standards set by the Code and related rules and opinions discussed above. If you have questions after consulting the sources, what should you do? You or your judge may ask the Codes of Conduct Committee for advice. The Committee is composed of 15 members: a judge from each circuit, a bankruptcy judge, and a magistrate judge.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 3 Contact the Committee representative from your circuit or the Committee Chair. You can also contact the Committee Counsel at the Administrative Office of the U.S. Courts, who has a wealth of ethics information. The Committee welcomes questions. In many instances, it will have already addressed a question similar to yours and established a precedent. If so, an informal phone call or e-mail exchange may quickly resolve your dilemma. If the Committee has not established a precedent, you can seek a formal opinion. You can also ask for a formal opinion if, for some reason, you want to skip the informal step. Address your request to the Committee Chair and submit it by e-mail. An e-mail meets the requirement that the request be in writing. The Committee will respond promptly. Are there limits on the Committee’s role? Yes. The Committee develops ethics policy for the federal courts and provides advice to federal judges, federal judicial employees, and federal defenders on specific ethics questions. It does not provide advice about conduct other than that of the person asking the question. It does not conduct investigations or mete out discipline. And

How to Contact the Codes of Conduct Committee A list of current Committee members is on the J-Net, at http://jnet. ao.dcn/EthicsCommittee_on_Codes_of_Conduct.html. Requests for opinions and other questions concerning the Code and its applicability should be addressed to the Chair and e-mailed to [email protected]. You can also contact the Committee at Chair, Committee on Codes of Conduct c/o General Counsel Administrative Office of the United States Courts Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC 20544 202-502-1100 All inquiries are confidential.

4 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks it does not interpret statutes, rules, or regulations other than those related to the Codes of Conduct for Judges, Judicial Employees, and Federal Defenders. Will your inquiry be kept confidential? Yes. The Committee keeps all inquiries and responses confidential. If you contact the Committee directly, the Committee will maintain your confidentiality. Confidentiality During your clerkship, you will learn a broad range of confidential information. Some of this information will pertain to individual cases; some will concern internal court workings; some will relate to the practices of your judge or other judges; and some will defy easy categorization. Although the Code of Conduct does not define confidential information, the term generally includes any information you receive through your clerkship that is not part of the public record. This includes information about past cases and the decision-making process used by your judge, chambers, and/or court in a prior, pending, or impending case. You have a strict obligation to keep this information confidential, unless your judge specifically authorizes you to disclose it. This obligation continues after your court service concludes. Canon 3D of the Code states that employees should not • disclose any confidential information received in the course of official duties except as required in the performance of such duties; • employ such information for personal gain; or • comment on the merits of a pending or impending action. Your obligation not to disclose any confidential information applies to your communications with family, friends, and former colleagues, just as it does to your communications with strangers, parties to a case, and the general public. The prohibition against commenting publicly on the merits of a pending or impending action extends to anonymous disclosures, such as disclosures on blogs.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 5 Code of Conduct for Judicial Employees, Canon 3D A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. This proscription does not extend to public statements made in the course of official duties or to the ex- planation of court procedures. A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority. Information That’s Confidential • Statements, or even hints, about a judge’s likely actions in a case • The timing of a judge’s decision or order, or any other judicial action • The content of case-related discussions with a judge, including past cases • Observations about a judge’s decision-making process in specific cases • Documents or other information related to a sealed case • Information obtained in the course of a law clerk’s work that is not available to the general public Information That’s Not Confidential • Court rules • Court procedures • In general, information on how the court operates • Court records, including the case docket available from the clerk’s office • Information disclosed in public court proceedings

6 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks Find out if your judge has specific confidentiality rules you must follow. Some courts and judges, for example, use the model confidentiality statement, Form AO-306, which is on the J-Net at http:// jnet.ao.dcn/Forms/AO_National_Forms/AO_ 306.html. The danger of unintentionally disclosing confidential information is especially high in certain situations, such as when talking to former law school classmates or professors or when engaging in online activities, such as social networking. (See pages 15–17 for a detailed discussion of online activities.) At first, you may struggle against a natural desire to share more than you should and to sat- isfy other people’s curiosity about your work. But as your clerkship progresses you will find that by exercising caution and remaining vigilant, you can honor your confidentiality obligation while maintaining your relationships. You can give your family and friends a clear picture of your career as a law clerk without mentioning specific cases or legal issues. Dealing with attorneys Dealing with attorneys can pose challenges. Attorneys often want an insider’s view on how their cases are going and how they can improve their clients’ prospects. They may call and try to argue their points, and lead you into a discussion of a case. Do not participate in these conversations. Some judges do not permit law clerks to talk with counsel at all. But even if your judge allows you to talk with attorneys under certain circumstances, never discuss or divulge confidential information. If an attorney tries to continue the conversation, say, “If you made those points in your filing, the judge will read it and consider them.” If the attorney tries to discern the judge’s thoughts, say, “I’m sorry, but you’ll have to wait until the opinion issues.” Making these statements can be more difficult if you know the attorney from law school or through your family, or if the attorney has appeared in multiple cases before your judge. But your obligation to the court remains the same: to protect confidential information and the integrity of the court.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 7 Dealing with the press Journalists may press for information about a case or the court. Canon 3D provides firm guidance on this point: law clerks should not disclose any confidential information or comment publicly on the merits of any pending or impending actions. Many judges prohibit their clerks from talking to the media, so be sure to check your judge’s guidelines on media inquiries. Never respond to substantive questions or reveal confidential information. With your judge’s permission, you may be able to direct callers to information in the public record and comment on technical, administrative, or procedural matters. Some courts designate specific employees to respond to media inquiries, and written guidelines for such inquiries may be available from your judge or the clerk of court. Dealing with other judicial employees You also must not discuss any confidential case-related information with clerks or other judicial employees who do not work for your judge, unless your judge explicitly gives you permission to do so. This includes information about past cases or your judge’s decision- making process in a particular case. This prohibition extends to appellate clerks who work for different judges on the same panel. Examples • A litigant calls Julia, a district court clerk, seeking information on when her judge will issue a summary judgment order. Should Julia respond? No. The release date of specific orders is confidential. • Roberto’s college friend now attends journalism school. For a class, his friend plans to write a feature about recidivism in the criminal justice system. May Roberto explain to his friend the basic steps in a criminal prosecution, trial, and sentencing? Yes. Roberto may explain the basic steps in a criminal case, as long as he avoids revealing any confidential information. • Prior to a nonjury trial, one of the attorneys, from another city, calls An- thony, a clerk, to ask procedural questions about the judge’s courtroom practices, such as whether she generally requests opening and closing

8 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks statements and whether she prefers that attorneys stand to make objec- tions. May Anthony answer these questions? Perhaps. Canon 3D permits a court employee to explain general court procedures to attorneys and the public, but Anthony should find out if his judge has a more restric- tive policy for her chambers. If his judge allows him to talk with the attorney, Anthony should be careful not to let the conversation move into substantive matters. • Lena clerks for a judge whose district borders Mexico. Her uncle asks her what she and her judge think about a new state immigration law that recently made headlines, especially whether that law could be challenged in the courts. How should Lena respond? Lena may discuss her personal thoughts about the law, but she must not say anything that suggests she knows how challenges to the law would be decided. She should emphasize that she is speaking personally and not for the judge. She must not disclose anything that reveals her judge’s thoughts about the law, especially since her judge could hear a case involving it. • Delia clerks for a judge who is presiding over a high-profile trial. Journal- ists ask Delia for the time and location of upcoming hearings and for access to the judge’s rulings as soon as they are filed. May Delia respond as requested? Yes, but only if her judge gives her permission. The time and location of hearings are (generally) public information, as are judicial opinions. Thus, they may be disclosed, so long as the clerk does so in accordance with the judge’s rules for communicating with the media.

Where to look for guidance on confidentiality • Canons 1, 2, and 3 of the Code of Conduct, particularly Canon 3D • Compendium § 3.9-1[1]: Avoid Comment on Pending Matters [Ju- dicial Employees]

Conflicts of Interest Canon 3F(1) of the Code of Conduct advises judicial employees, including law clerks, to avoid conflicts of interest. Conflicts arise when you—or your spouse or other close relative—might be so personally or financially affected by a matter that a reasonable person would question your impartiality. The considerations that apply to a spouse also apply to a person with whom the clerk lives in an intimate relationship.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 9 As a law clerk, you are subject to additional restrictions, which the Code sets out in Canon 3F(2). You may not work on any matter where • you have a personal bias or prejudice toward a party, or personal knowledge of disputed facts; • you or a lawyer with whom you practiced serves or served as a lawyer in the matter; • you, your spouse, or minor child who lives in your household has a financial interest in the subject matter or in a party; • you or your relatives within the third degree are a party, a lawyer, or likely to be a material witness, or have an interest that could be substantially affected by the matter’s outcome; or • through prior government employment, you participated as counsel, advisor, or witness concerning the proceeding or expressed an opinion about it. A new clerk may bring conflicts to the clerkship, for example, from existing personal relationships or former employment. Other conflicts may arise during the clerkship, for example, from contacts with a prospective employer (which will be discussed later under “Career”) or from newly acquired financial interests. Under Canon 3F(4), you have a duty to keep informed about your personal and financial interests, and to remain reasonably informed about the financial interests of your spouse and minor children. If you, your spouse, or child owns even one share of stock in a party to a case, you have a financial interest in the party and cannot work on the case. However, owning government securities or mutual funds does not create a financial interest in the entities that issued the securities or the companies whose stock the mutual fund owns. If you own innovative investment vehicles that are not easily catego- rized as an equity stock or mutual fund, it may be difficult to decide whether you have a financial interest in a party. If so, err on the side of caution—consult with your judge. As you can see from the examples presented in the box below, you can predict some conflicts and some may recur. You must ex- amine other situations on a case-by-case basis. Remember to inform

10 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks your judge as soon as you become aware of a conflict or a potential conflict. Your judge will then determine how to proceed. Most judges have more than one law clerk and can assign another clerk to a case if necessary.

Actual Conflicts • In a previous legal job, you worked on a lawsuit now assigned to your judge • A lawyer with whom you previously practiced law served as counsel concerning a matter now assigned to your judge • The firm where you plan to work after your clerkship serves as counsel in a matter before your judge • You witnessed a crime, and your judge will hear the case • You, your spouse, or minor child owns stock in a company that is a party in a case before your judge • Your spouse or your spouse’s firm represents a party in a proceeding before your judge • Your sister or brother is a plaintiff in a class action lawsuit assigned to your judge

Potential Conflicts Potential conflicts do not necessarily disqualify you from working on a case, but you should alert your judge to them. • A neighbor’s name appears on a witness list in a case before your judge • An attorney you met and talked with at a social function appears to argue a motion before your judge • An environmental hazard in a case before your judge borders your parents’ vacation property • As an editor of your school’s law review, you expressed opinions on the merits of a case now on appeal before your judge

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 11 Examples • Greta’s husband inherited six shares of corporate stock when his grand- mother passed away. The corporation just filed a lawsuit, and Greta’s judge will preside over it. May Greta work on the case? No. Greta will need to isolate herself from the case. Even a single share of stock held by her spouse creates a disqualifying interest. • For two years before his clerkship, David worked as a lawyer in a large international law firm’s executive compensation group. Another of the firm’s offices filed a successfulforum non conveniens motion in an insurance dispute. David never worked on the insurance case, nor did he know about it. He just learned that his judge will preside over the case. May David assist his judge? No. David may not work on any matter that was pending with his former firm while he worked there. • Rachel’s husband works as an estate planning associate in a firm that represents a party in a products liability case. Rachel’s judge will preside over the case. May Rachel work on it? No. Even though her spouse is not involved in the litigation, she is prohibited from participating. • In 2009, Molly’s former law firm represented an environmental advocacy group that sued an oil company after an oil spill. Now, another environmental advocacy group is suing the oil company in the court where Molly works. Molly’s former firm does not represent the advocacy group involved in the current litigation. May Molly work on the case? The conflicts rules do not bar Molly from working on the case, but she should tell her judge that her former firm represented a different client in a similar case. • Eliza owns an exchange traded fund (ETF) composed mainly of telecommunications stocks. In a class action recently assigned to her judge, a group of plaintiffs allege a price-fixing conspiracy among three major telecommunications companies. May Eliza work on the case? This question does not have a clear-cut answer. Eliza should proceed with caution and consult with her judge. The conflicts rules generally treat ETFs like mutual funds, but this may be a unique case because her ETF is composed of telecommunications stocks, and it seems likely that this class action could substantially affect all major telecommunications companies.

12 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks Where to look for guidance on conflicts of interest • Advisory Opinion No. 51: Law Clerk Working on Case in Which a Party Is Represented by Spouse’s Law Firm • Advisory Opinion No. 74: Pending Cases Involving Law Clerk’s Fu- ture Employer • Compendium § 2.7-1: Withdrawing from Law Practice to Become a Judge or Judicial Employee [Judicial Employees] • Compendium § 2.11-1: Doing Business with Parties Before the Court [Judicial Employees] • Compendium § 3.1-8: Financial Conflicts [Judicial Employees] • Compendium § 3.1-9[1]: Duty to Keep Informed of Financial In- terests [Judicial Employees] • Compendium § 3.2-2[1]: Recusal: Spousal Relationships [Judicial Employees] • Compendium § 3.3-1[1]: Recusal: Withdrawal from Firm; Former Firm Appearing in Case [Judicial Employees] • Compendium § 3.4-6[1]: Recusal: Charitable and Religious Orga- nizations [Judicial Employees] • Compendium § 3.4-7[1]: Recusal: Future Employment [Judicial Employees] • Compendium § 3.5-1: Isolating Judge’s Staff When Relatives or Relatives’ Interests are Involved in Litigation [Judicial Employees]

Caution Caution is a theme that unites all of your ethical obligations, but you need to exercise special caution in three areas: political activities, online activities, and gifts. It is easy for clerks who are engaged in their communities and lead busy lives outside the court to stumble in these areas. Political activities Canon 5 of the Code of Conduct prohibits law clerks from engaging in both partisan and nonpartisan political activity. You may not run for office; campaign for others; publicly endorse or oppose candidates; or contribute funds to political organizations, candidates, or events. You should not even take passive actions that might link you with a political issue, such as displaying a political sign or bumper sticker.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 13 Exercise considerable caution before engaging in activities with obvious political overtones, even if they don’t meet the Code of Conduct’s definition of political activity. These might include, for example, activities related to a hotly debated political issue. Your spouse and children may engage in political activities; however, if they do, you have an obligation to disassociate yourself from their involvement. For example, if your spouse makes political contributions, he or she should do so from a bank account without your name on it. What political activities may you participate in? You may register with a political party and vote in partisan and nonpartisan primary and general elections. You may express a personal opinion privately, for example, to a family member or friend. But be careful not to express your political opinions to broader audi- ences. The Online Activities section, on pages 15–17, discusses how far your circle of friends extends. Advisory Opinion No. 92 discusses permissible and impermissible political activities for judicial employees. The key is to prevent any association of particular political opinions with the court, thus protecting the independence and impartiality of the judiciary. Ask your judge if you have any question about whether it is appropriate to participate in a particular activity. Examples • Jesse’s domestic partner runs the election campaign for a local city council person and plans to host a strategy meeting at their house. What, if anything, should Jesse do? Jesse should take reasonable steps to disassociate himself from the campaign. For example, he should ask his partner not to post a campaign sign in their front yard and not to make campaign contributions from their joint checking account. Jesse should not be at the house during the strategy meeting. • In law school, Kathy devoted her free time to environmental advocacy. Just after she began her clerkship, her state passed a controversial ballot measure that some regard as bad for the environment and in violation of federal environmental laws. May Kathy volunteer for a local organization that plans to document and raise awareness about what it views as

14 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks the measure’s ill effects? No. Kathy should not volunteer for the local organization while serving as a clerk. The activity has significant political overtones and involves a controversial issue that may ultimately be litigated in federal court. • Prakash lives in a state that holds caucuses for presidential primaries. Prakash would like to attend a caucus so that he can cast a vote. Is this permissible? No. As a member of his judge’s personal staff, Prakash should refrain from all political activities, including participation in a caucus. • A hotly contested senatorial race just began in Natasha’s state. She would like to attend an information meeting that one of the candidates is host- ing, so that she can learn more about his views on the important issues at stake. May she do so? No. Natasha may not attend the meeting. Her presence might be viewed as an endorsement. She may, however, attend a nonpartisan event to which all candidates are invited, such as a debate sponsored by the League of Women Voters.

Where to look for guidance on political activities • Advisory Opinion No. 92: Political Activities Guidelines for Judicial Employees • Compendium § 5.3-1: Spouse’s and Other Relatives’ Political Ac- tivities [Judicial Employees] • Compendium § 5.4-1: Public Support Causes [Judicial Employees] • Compendium § 5.5: Other Partisan Political Activities [Judicial Employees] • Compendium § 5.6: Other Nonpartisan Political Activities [Judicial Employees] Online activities Many law clerks spend a significant amount of time online. Using the Internet and other social media can facilitate appropriate research, lead to exchanges with other professionals, and help you maintain contact with family and friends. But your online activities can also pose a threat to multiple ethical obligations, including your responsibilities to maintain confidentiality, to preserve the appearance of impartiality and the independence of the judiciary, and to uphold the dignity of the court.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 15 Before participating in any online activity, answer the following six questions: 1. Does the activity readily identify you with the court system? 2. Does the activity reveal case information or other confidential court information? 3. Does the activity reflect poorly on the court or express an opinion about a controversial topic that may come before the court? 4. If you post pictures or comments on a blog or social media site, will they detract, even indirectly, from the dignity of the court or the judicial process? 5. If your research is related to a case, would it be appropriate for your judge to take judicial notice of the sources you are using? 6. The ultimate question: Are you comfortable with your post becoming front-page news on a popular blog or lawyer news site? Be sure to find out whether your court, your judge, or both have policies that govern online activities during your clerkship, and obtain your judge’s permission before participating in such activities. Also ask for your court’s policies regarding use of government com- puters and computer services. You cannot exercise too much caution with online activities. Examples • Malia just started a clerkship. Malia’s judge told her that she may continue to participate in online social networking, as long as she abides by her ethical obligations. May Malia include in her social networking profile that she works as a federal law clerk? Malia should avoid identifying the federal judiciary, her particular court, or her judge as her employer. Such identification increases the likelihood that anything Malia posts will be associated with the courts. However, if Malia has an important reason for identifying her employer on a particular site—if, for example, she wants to participate in a job-search or a professional- networking site—she should consult with her judge. • In the most recent presidential election, Garrett campaigned strongly for the successful candidate. Garrett knows he may not participate in po-

16 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks litical activities during his clerkship, and he removed his party affiliation from his social networking profile. His profile picture, however, promi- nently displays him wearing a campaign T-shirt for the President. Is this permissible? No. The T-shirt clearly affiliates Garrett with a political party and a politician. He should remove the photo from his networking profile. • Fred loves food. He especially loves pastries, and has, for several years, maintained a modest blog cataloguing his endeavors to make French pastries. May Fred continue this blog while clerking? Yes. He may continue the blog, provided his judge consents and his blog sticks to culinary commentary. • Minerva uses a social networking site to tell her friends and family about her adventures clerking in a new city. Usually, her messages are not work- related, but the court just issued an important civil rights opinion, and Minerva wants to send a link so that people can read the opinion as soon as it becomes available. Should she do this? Minerva should check with her judge. Although the opinion would be public by the time she sent the link, Minerva may unintentionally give impressions regarding the opinion that would be improper, such as a predisposition about the legal issues at stake. • Chase worked on an opinion that struck down a state law as unconsti- tutional under the First Amendment. This morning the court published it. May Chase update his online “status” with any of the following comments: (a) “Just scored a major win for free speech!” (b) “Check out Free- speaker v. New York, published today. Interesting opinion.” (c) “Dear New York: please stop infringing free speech.” (d) “I ♥ the First Amend- ment.”? No. None of these comments is appropriate. Chase should not post online any comments about cases or legal issues that have come, or could come, before his court.

Gifts The ethics rules place restrictions on the kinds of gifts you may receive during your clerkship and from whom you may receive them. Under the rules, “gifts” are not just presents wrapped up with nice bows. The Judicial Conference Gift Regulations, § 620.25, define gifts as “any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other similar item having monetary value.”

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 17 You may not solicit or accept gifts from anyone “who is seeking official action from or doing business with the court” or anyone “whose interests may be substantially affected by the performance of” your official duties. Gift Regulations § 620.30; Code of Conduct Canon 4C(2). You also may not accept any gift in return for being influenced in the performance of an official act, or accept gifts on a basis so frequent that it appears you are using your law clerk position for private gain. Gift Regulations § 620.45. The Code of Conduct imposes the additional duty that a judicial employee should endeavor to prevent any household family members from soliciting or accepting any gift that the judicial employee may not accept. Canon 4C(2). There are exceptions to the general prohibition on receipt of gifts. You may accept gifts from relatives and friends on special occa- sions, such as an anniversary or birthday. You may also accept invitations to bar-related functions. Gift Regulations § 620.35. You may also accept ordinary social hospitality; scholarships or fellowships available on standard terms; and opportunities and benefits, including commercial discounts that are offered on the basis of factors other than your status as a judicial employee. You may also accept rewards and contest prizes, and anything for which market value is paid. Gift Regulations § 620.25(a)–(h). Examples • The local Inn of Court invited Warren to attend an introductory recep- tion at which there will be modest free food and drinks. May Warren attend? Yes. Warren may attend this event, sponsored by a law-related organization, at which regular social hospitality will be offered. • Nanette’s judge is celebrating 20 years on the bench this year, and she is helping organize a party in his honor. May Nanette approach the judge’s former firm to help sponsor the event? The judge always recuses himself from matters involving the firm. No. Nanette may not solicit the gift of sponsorship from the firm, which does business before the court. In addition, her solicitation of funds could at least create the appearance that her judge is asking for money from his former colleagues, which would also be inappropriate. • A CLE seminar group invited Seamus to a national intellectual property law conference. The group asked him to participate in a panel on clerk-

18 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks ship application strategies for summer interns. In return, Seamus can attend the conference for free. The group offered Seamus’ co-clerk, Jean, an admissions discount. May Seamus and Jean accept the invitations? Yes. In general, a judge or judicial employee may accept gifts of an invitation and travel expenses to attend bar-related functions, educational activities, or activities dedicated to improvement of the legal system. • As part of its interview process, a firm takes Yasmin to dinner at a fancy local restaurant. A few days later, the firm offers Yasmin a position after her clerkship ends, which she accepts. The firm then invites her to attend its annual retreat, at a nearby fancy mountain resort. May Yasmin accept the dinner and the invitation to the retreat? Yasmin may accept the dinner. Taking applicants to dinner is a standard part of the firm’s interview process, and thus unlikely to raise an appearance of impropriety. Yasmin may not attend the retreat. The retreat is an expensive gift that suggests Yasmin is closely affiliated with the firm. This raises the appearance of impropriety. The gift regulations permit a judicial employee to accept benefits—such as an interview-related meal—that are provided in connection with bona fide employment discussions.

Where to look for guidance on gifts • Advisory Opinion No. 83: Payments to Law Clerks from Future Law Firm Employers • Compendium § 2.5-1: Future Employment [Judicial Employees] • Compendium § 2.9-1: Benefits Received from Entities Doing Busi- ness with the Courts [Judicial Employees] • Compendium § 4.8-5[1]: Discounts [Judicial Employees] • Compendium §§ 21–29: Section on the Ethics Reform Act and Ju- dicial Conference regulations concerning gifts

Community and Other Outside Professional and Social Activities Like judges, many law clerks participate actively in community organizations and other outside professional and social activities. This involvement is laudable, and the ethics rules permit you to continue participating in these activities, with certain limitations. Be sure to consult with your judge; many judges have specific policies about outside activities.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 19 Canon 4A of the Code of Conduct sets the basic threshold for involvement by law clerks in any outside activities, including business, financial, and fiduciary activities. It permits you to undertake these activities as long as they do not interfere with the performance of your official duties or adversely reflect on the operation and dignity of the court. You may participate in charitable, religious, cultural, avocational, and recreational activities. If you write, lecture, or teach, you must have your judge’s permission, especially if the topic is controversial, law-related, or likely to be the subject of litigation. You may engage in fund-raising; however, you may not use, or permit anyone else to use, the prestige of your position with the court in a fund-raising effort. You may not solicit funds from lawyers or persons likely to come before the court, nor may you solicit funds from subordinates or other court personnel. Do not raise funds for organizations that litigate regularly in any court or for organizations that take controversial stands on issues that may find their way to federal court. Do not solicit funds for or contribute to a partisan political organization, candidate, or political event. If an outside activity relates in any way to the law or the legal system, consult with your judge before engaging in that activity. Dur- ing your clerkship, you may not practice law. The rules permit only a few narrow exceptions: you may appear pro se; you may perform routine legal work concerning the management of your own affairs or those of a family member (although you may not enter an appearance in federal court); and you may act pro bono in certain civil cases (although you may not enter an appearance in any state or federal court or administrative agency). Compensation for outside activities You may earn compensation from certain outside activities or receive reimbursement for expenses related to those activities, but there are limits. See Canon 4E. You may receive compensation for a series of speeches or articles, as long as they are unrelated to your official duties. You may not, however, accept honoraria, which are defined as payments for a single appearance, speech, or article. You may not receive compensation for the limited practice of law that is authorized by Canon 4D.

20 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks Outside Legal Activities—A Checklist You should consult with your judge before engaging in any outside activity that might be construed as legal. If you answer yes to any of the questions below, you should not engage in the activity.

• Does the activity interfere with your performance of your official duties? • Will the activity exploit your government position? • Does the activity present an appearance of impropriety or reflect adversely on the court? • Will the activity associate you in a substantial financial manner with attorneys appearing in your court? • If the activity involves routine family legal work, does it • involve any appearance in federal court? • occur while you are on duty or in the workplace? • result in compensation (other than in probate proceedings)? • If the activity involves the pro bono practice of law, does it • involve any appearance in a federal, state, or local court or administrative agency? • occur while you are on duty or in the workplace? • involve a matter of public controversy or an issue likely to come before your court? • result in compensation? • Is the activity inconsistent with any additional condition or limitation your judge imposes on law clerks’ law-related activities?

You may need to file reports regarding compensation or reimbursement for outside activities. Check with your court regarding such requirements. Use of office equipment You may be tempted to use office equipment and courthouse services for tasks associated with your outside activities. Be careful. Judicial employees have a responsibility to protect and conserve government

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 21 property and should not use government property for other than authorized purposes. Never use office equipment and services for outside activities in a manner that imposes substantial costs on the government. Your court may have a policy permitting the de minimis use of resources, such as occasionally copying short documents. Use that does not impose any cost on the government, such as use of the court’s library in the evening, should also be acceptable. However, any practice of law that is permitted under Canon 4D should not take place in the workplace. Examples • Nelson’s church invited him to assume an important position as lay leader. This position requires extensive community outreach. May he accept? Yes. Nelson may accept the position, so long as it does not include activities that would jeopardize his ethical obligations as a clerk. He may not, for example, speak about a controversial social topic that might be litigated in court. • During law school, Vasily worked as a guardian ad litem representing children in abuse and neglect proceedings. Vasily would like to continue representing one of the children, in a case with heartbreaking facts. A state judge will preside over the proceeding. May Vasily continue the representation? No. Vasily may perform certain pro bono legal work in non-criminal cases, but he may not represent a client in any state or federal court or before an administrative agency. • Donna, a career law clerk, would like to join the newly formed local chapter of a national organization devoted to promoting conservative legal views. May Donna join the group? Yes. Donna may join the group, as long as the group does not participate in or sponsor political activities and as long as Donna’s involvement does not raise an appearance of impropriety based on certain considerations. For example, Donna should avoid involvement with the advocacy group if it suggests a predisposition as to legal issues or an influence due to the relationship. Concerns would also increase with Donna’s level of involvement (i.e., attendee, contributor, member, or officer); the group’s degree of advocacy; and any overlap between the group’s activities and her official duties. Similar considerations govern involvement in public protests.

22 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks • Before her clerkship, Tammy participated actively in a local legal aid organization. The organization asked her to serve on its board of direc- tors. May she? No. Assuming that the organization regularly represents clients who appear before Tammy’s judge, acceptance of the position would require her to withdraw from participation in such cases. Clerks should not engage in activities that would often make them ineligible to work on cases assigned to their judges. • A few months into his clerkship, a local law school invites Guillermo to teach a seminar on international tax law as a visiting professor. Guill- ermo would like to accept the invitation, as he hopes to become a law professor after his clerkship. May he teach the seminar? Yes. Subject to his judge’s prior approval, Guillermo may teach the class. He must make sure to adhere to his ethical obligations while teaching. He must not, for example, discuss any of his judge’s pending cases.

Where to look for guidance on participation in community and other outside activities • Compendium § 1.3-1: Service in State Government Positions [Ju- dicial Employees] • Compendium § 2.11-1: Doing Business with Parties Before the Court [Judicial Employees] • Compendium § 4.1-3[4]: Participation in Bar Association Activi- ties, and Service on Boards and Committees [Judicial Employees] • Compendium § 4.1-4[1]: Arbitration and Mediation [Judicial Em- ployees] • Compendium § 4.1-5[1]: Practice of Law [Judicial Employees] • Compendium § 4.2-7: Nonprofit Civic, Charitable, Educational, Religious, or Social Organizations [Judicial Employees] • Compendium § 4.4-6: Business Activities [Judicial Employees] • Compendium § 4.6-6: Governmental Appointments [Judicial Em- ployees] • Compendium § 4.8-7[1]: Attendance at Seminars and Reimburse- ment of Expenses [Judicial Employees]

Career Many law clerks serve the court for a year or two, and need to start thinking about future employment shortly after their clerkships begin. Other clerks serve for a longer period of time, but may also

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 23 decide to pursue other professional opportunities. The ethics rules place limits on how you engage in activities related to future (or past) employment. Be mindful of three issues in particular. First, a job search may create new conflicts of interest. Ask your judge if you may apply for a job with a firm that represents a party currently before the court. If you interviewed with a firm but have not accepted an offer, your judge has discretion about whether you may work on matters involving the firm. Once you have accepted an offer, however, the ethics rules take the decision out of your judge’s hands. You may not work on any pending or future cases involving your future employer. Second, do not let down your guard regarding confidentiality during your job search. Exercise care when preparing applications. Ask your judge whether you may submit written work from your clerkship as part of your application. While some judges may permit you to use a redacted bench memorandum, draft opinion, or order as a writing sample, others may not. Maintaining confidentiality can be particularly challenging during job interviews. Prospective employers may probe for insight into your judge’s deliberative process and your contributions to judicial opinions, but your confidentiality obligations remain firmly in place. Check with your judge before you interview. You should be able to speak generally about your role as a law clerk without divulging specific cases or legal issues. Third, prospective employers may offer gifts or benefits that raise ethical issues. Generally, you may accept benefits that employers cus- tomarily provide in connection with bona fide employment discussions, such as meals or hospitality during the application process. Once you accept a position, an employer may offer additional benefits, such as a clerkship bonus, compensation for bar-related expenses, or an invitation to a firm retreat. During your clerkship, you may only accept bar expenses and relocation expenses. You may not accept clerkship bonuses or other financial incentives (such as interest-free loans or salary advances). You should generally decline invitations to major firm events, such as retreats, although you may want to check with your judge regarding invitations to other firm events, as circumstances vary.

24 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks Finally, your ethical obligations impose certain ongoing restrictions that follow you to the next step in your career. You may not participate in any matter that was pending before your judge during your clerkship. Your judge may have a policy about whether you may appear before the judge and, if so, how much time must first elapse. The court for which you clerked may also place restrictions on your participation and appearance in matters. It may be helpful to check on these restrictions before your clerkship ends. And, of course, your confidentiality obligations continue. Former law clerks must observe the same restrictions on disclosing confidential information as current clerks do. Examples • After Clementine accepted an offer to work for a local law firm after her clerkship, the firm invited her to a day-long training session on how to take a deposition. May Clementine attend? No. Clementine should not attend the training, which would be a benefit from an organization that does business with the court. Clementine may not attend even if she has already isolated herself from the firm’s cases. • Daniel has been offered a position in a U.S. Attorney’s Office in another part of the state. Must he isolate himself from any matter involving a U.S. Attorney’s Office? No. He is only restricted from working on matters handled by the specific U.S. Attorney’s Office he is joining. • Joshua accepted a job with a large law firm. Before his clerkship ends, the law firm asks for a list of all matters he has worked on. It wants to run a conflicts check. May Joshua comply? No. The matters that Joshua worked on are confidential and may not be disclosed—before or after Joshua starts work at the firm. When he arrives at the firm, Joshua may identify which of the firm’s current matters he cannot work on, so that he can continue to comply with his obligations to the court. • Sam accepted an offer with a firm, which offers (a) a salary advance of up to $7,000; (b) a clerkship bonus of $50,000; (c) reimbursement for a bar review course and bar exam fees; and (d) reimbursement for relocation costs. Which, if any, of these may Sam accept? During his clerkship, Sam may accept reimbursement for bar-related expenses and relocation costs. But he may not accept the salary advance or bonus until his clerkship concludes. A salary advance is impermissible because it is considered an interest-free loan.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 25 Where to look for guidance on career • Advisory Opinion No. 74: Pending Cases Involving Law Clerk’s Fu- ture Employer • Advisory Opinion No. 83: Payments to Law Clerks from Future Law Firm Employers • Compendium § 2.5-1: Future Employment [Judicial Employees]

Ethics Checklist for Federal Judicial Law Clerks This section presents a checklist of actions and circumstances that could raise an ethical issue. When these actions or circumstances occur, or seem likely to occur, you should be aware of potential ethical issues and discuss the appropriate course of action with your judge. Your judge may have stricter standards than those of the Code of Conduct or statutes. If so, you must follow the policies of your judge. Confidentiality It is always important to observe your judge’s specific requirements about the confidentiality of your court work and chambers discussions. You should find out exactly how your judge wants you to • deal with the press, including • restrictions on communications with the press • procedures to follow when contacted by the press • the availability of written guidelines for press inquiries • deal with counsel, including • restrictions on communications with counsel • procedures to follow when contacted by counsel • handle case-related discussions with court staff who do not work in your judge’s chambers, including other law clerks. Conflicts Your judge maintains a list of people, companies, and cases that would generally preclude his or her participation in related cases that come before the court. Most courts use this list to make sure such cases are not assigned to your judge. As a law clerk, you should maintain a similar list to check for possible conflicts whenever you may be assigned to work on a case.

26 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks You should include on this list • any company in which you • personally own one or more shares of stock or some other financial interest • have an equitable interest (e.g., as a vested beneficiary) in an estate or trust that has a financial interest in the company • serve as an officer, director, advisor, trustee, or active par- ticipant in the affairs of the company • serve as a fiduciary of an estate or trust that has a financial interest in the company • any company in which your spouse or minor child has a similar interest • any agency, company, or law firm with which you are discussing future employment. You should inform your judge that you have an actual conflict if, in a case assigned to your judge, • you have personal knowledge of disputed evidentiary facts • you previously served as counsel in the matter • your previous or future law firm served as counsel in the matter • you are a party • you are likely to be a material witness • you have previously served in government employment as counsel, advisor, or material witness in the matter, or expressed an opinion concerning the merits • your spouse or a close relative is a party or counsel in the matter • your spouse or a close relative is an officer, director, or trustee of a party • your spouse works for a law firm that represents a party in the matter • your spouse or a close relative is likely to be a material witness • you, your spouse, or a close relative has an interest that could be materially affected by the outcome.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 27 Caution Clerks must exercise special caution in political activities, online activities, and accepting gifts. You may not • engage in partisan political activities, either as a candidate or on behalf of others • engage in nonpartisan political activities. Clerks must ensure that their online activities do not conflict with their ethical obligations or undermine the impartiality and independence of the court. Ask your judge about his or her policies, or the court’s policies, if you • contribute to a blog • maintain a profile on a social or professional networking site. Community Activities Clerks are not expected to give up their lives outside the courthouse, but working for the judiciary does impose constraints that may not be obvious. Some activities you take for granted may be inappropriate while you are employed as a clerk; for example, do you • serve as a member or on the board of a professional or law- related organization? • serve as a member or on the board of a civic, charitable, or social club? • belong to an organization that litigates frequently in federal court? • belong to an organization engaged in lobbying or political activities? • raise funds for your outside activities? If your answer to any of these questions is yes, consult with your judge. You should also find out exactly how your judge wants you to deal with opportunities to write, speak, or publish, including • restrictions on writing and publishing during your clerkship • procedures to be followed before agreeing to speak, write, or teach • restrictions on law-related subjects • restrictions on other subjects.

28 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks Career Because most clerkships are short-term, clerks are often in the process of securing future employment. Some may work at other jobs. In addition to being familiar with ethical restrictions, be sure you understand exactly how your judge wants you to • deal with law practice or other outside employment, including • restrictions on the practice of law (pro bono or otherwise) • restrictions on other law-related pursuits. • deal with efforts to seek future employment, including • applying to or interviewing with prospective employers before your clerkship ends • using writing samples produced during your clerkship • discussing your contributions to your judge’s work • discussing your judge’s office procedures and proclivities • working on matters handled by law firms with whom you are seeking employment • accepting a job offer before your clerkship ends.

Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 29 Appendix: How To Obtain Online Ethics Resources The Administrative Office of the U.S. Courts (AO) and the Federal Judicial Center (FJC) maintain extensive ethics information online. The AO information includes the Code of Conduct for Judicial Employees, Advisory Opinions, the Compendium of Selected Opin- ions of the Codes of Conduct Committee, and regulations and statutes related to gifts and outside income and employment. To access any of this information (and more): • go to http://jnet.ao.dcn/Ethics; and • select the resource you need. The FJC’s website includes numerous education and training programs for law clerks, judicial employees, and judges. To access these programs: • go to http://cwn.fjc.dcn; • click on “Ethics and Codes of Conduct” under “Resources by Subject”; and • select the resource you need.

30 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

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1991 Some Ethical Considerations for Judicial Clerks John Paul Jones University of Richmond, [email protected]

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Recommended Citation John Paul Jones, Some Ethical Considerations for Judicial Clerks, 4 Geo. J. Legal Ethics 771 (1991)

This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Some Ethical Considerations for Judicial Clerks

JOHN PAUL JONES*

INTRODUCTION

Since 1875, new law graduates have served judges of federal and state courts as legal researchers, executive assistants, and professional confidants.I In return, the best of the newest lawyers have gotten a chance to complement their classroom education with field study of bench and bar-from behind 2 the bench. The ideal relationship which should develop between law clerks and their judges is symbiotic: the judges enjoying the energies and fresh per-

* Professor of Law, University of Richmond School of Law. The author wishes to thank Wil- liam 0. Quirey, Jr., University of Richmond School of Law Class of 1992 for diligence and acuity as a research assistant. This article grew out of a chapter in A Guide for Judicial Clerks in State Courts, produced by the author as part of a judicial clerkship education project supported by a grant from the State Justice Institute, a private, non-profit corporation created by Congress in 1984 to futher the development and adoption of improved judicial administration in state courts. See 42 U.S.C. § 10701 (1988). 1. Horace Gray first employed a recent law graduate as a personal assistant when he was Chief Justice of the Massachusetts Supreme Court and his half brother, John Chipman Gray, was a professor at Harvard Law School. Justice Gray took the practice with him to the United States Supreme Court in 1882. J. OAKLEY & R. THOMPSON, LAW CLERKS AND THE JUDICIAL PROCESS 11 (1980). The first official mention of clerical assistance for Supreme Court Justices was made in the 1885 Annual Report of the Attorney General of the United States which recommended statu- tory provision of stenographic assistance, a recommendation which was acted on in the Sundry Civil Act of August 4, 1886 (24 Stat. 254 (1886)). Within two years each of the nine Justices employed an assistant. Newland, PersonalAssistants to Supreme Court Justice" The Law Clerks, 40 OR. L. Rnv. 299, 301 (1961). Law clerks appeared in the chambers of the Supreme Court of Cali- fornia in 1930, J. OAKLEY & R. THOMPSON, supra, at 32 n.2.86), and within the next several years began serving jurists of the highest courts of Illinois, New Jersey, New York, Oklahoma, and Penn- sylvania as well. Id. at 18. See also Dorsen, Law Clerks in Appellate Courts in the United States, 26 MOD. L. REv. 265 (1963). An abridged version of the Oakley and Thompson book appears as Law Clerks in Judges' Eye&" Tradition and Innovation in the Use of Legal Staff by American Judges, 67 CALIF. L. REv. 1286 (1979). 2. In this article, the term "law clerk" is treated as synonymous with the term "judicial clerk." They both denote recent law school graduates who spend a year or two as paid members of the personal staff of a judge, performing legal research, drafting and editing court documents, and otherwise assisting the judge. Some judges (eg., those of the California Supreme Court) prefer to engage lawyers as a career, rather than employ lawyers for only one or two years. J. OAKLEY & R. THOMPSON, supra note 2, at 31. Many courts also employ staff attorneys. Staff attorneys too can be either recent law graduates or career professionals who assist one or more judges in the court's work. Judicial clerks and staff attorneys are as easily distinguished by their situations as by their functions: judicial clerks are selected by judges, work directly for judges, and share their chambers; staff attorneys are selected by a senior lawyer employed by the court, operate under that lawyer's direction, and share a central office in the courthouse. A law clerk who works for more than one judge can look a lot like a staff attorney, just as a staff attorney continuously assisting a particular judge with a complex case can, after a while, look a lot like that judge's personal clerk. In terms of what they do and learn, distinctions between judicial clerks and staff attorneys are insignificant. But cf 15 Comp. Gen. 765 (1936) (a judge's clerk works for the judge not the court, so that the Federal GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771 spectives of brand new professionals rated top among their contemporaries by law professors, and the law clerks obtaining tutorials by senior jurists regarded as among the best by their former peers at the bar. The special relationship between judge and clerk raises special questions of professional conduct for both. Various published standards supply at least some of the answers. Once a law clerk has been admitted to the bar, he will be bound by the standards expressed in his bar's code of professional responsibility. 3 As the trusted agent of a judge, a clerk is regarded by some courts as bound by the judicial standards binding his principal. 4 Law clerks in federal courts are bound by a code designed particularly for them. 5 Law clerks in some state courts are expressly charged with adherence to particular local standards, 6 although no code has yet been developed for general application to the conduct of law clerks in state courts.7 These clerks are therefore bound, if at all, only by the patchwork quilt consisting of bar standards applicable after admission and bench standards applicable by derivation.

CODIFIED STANDARDS APPLICABLE TO LAW CLERKS All attorneys, including law clerks, are bound as soon as they acquire membership in their local bar by standards of professional conduct adopted by their bar. These are generally based in whole or in part on the American Bar Association's Model Code of ProfessionalResponsibility or Model Rules of ProfessionalConduct. 8 Sections of these codes that are of particular rele- vance to a law clerk are: prohibition on appointment of family members may not apply.) See infra notes 44-45 and accompanying text. While still in school, law students sometimes perform on a part-time basis some or all of the duties assigned a law clerk or staff attorney. These typically unpaid assistants are called "interns" or "externs," sometimes depending on whether their work at the court earns them law school cred- its for clinical education. This article is intended as much for their edification as for that of their seniors in post-graduate assignments. 3. See infra note 8. 4. See infra note 14 and accompanying text. 5. See infra note 15 and accompanying text. 6. See infra note 16 and accompanying text. 7. A Model Code of Conduct for Nonjudicial Court Employees has been offered by the Ameri- can Judicature Society. See Ozar, Kelly & Begue, Ethical Conduct of Nonjudicial Court Employees: A Proposed Model Code, 73 JUDICATURE 126 (1989). It is intended for court clerks, docket clerks, data processing personnel, bailiffs and judicial secretaries. AJS Model Code of Conduct for Nonjudi- cial Court Employees, 73 JUDICATURE 138, 138 (1989) [hereinafter AJS Model Code]. Originally, its authors intended to include law clerks as well. Ozar, Kelly & Begue, Ethical Conduct of State Court Employees and Administrators: The Search for Standards, 71 JUDICATURE 262, 266 (1988). However, in the final version, its authors explicitly omit from coverage law clerks, "who should be held to a higher standard." AJS Model Code, supra at 138. 8. At one time, the standards of professional responsibility adopted by almost every state closely resembled those in the Model Code of ProfessionalResponsibility promulgated by the American Bar Association in 1969. By the end of 1987, 25 states had modified their codes in response to the 1991] ETHICS FOR JUDICIAL CLERKS

DR 8-101. Action as a Public OfficiaL (A) A lawyer who holds public office shall not:

(3) Accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as public official. 9 DR 9-101. Avoiding Even the Appearance of Impropriety.

(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. (C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official. 10 Model Rule 1.12(b) (in pertinent part): A lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator. I I Judges are bound by the standards of professional conduct adopted for their court.12 By their terms, such standards expressly bind only judges, not law clerks, but certain standards specifically address the judge's responsibility for the actions of his staff. Two rules in the ABA Code of Judicial Conduct which refer to a judge's staff are: Rule 3.A Adjudicative Responsibilities

(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.

(6) A judge should abstain from public comment about a pending or

Model Rules of Professional Conduct adopted by the ABA in 1983 as a replacement for the Model Code. M. SCHWARTZ & R. WYDICK, PROBLEMS IN LEGAL ETHICS 10 (2d ed. 1988). 9. MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 8-101 (1980) (hereinafter MODEL CODE); see also MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4(e) (1983) (hereinafter MODEL RULES). 10. MODEL CODE DR 9-101 (B)-(C); see also MODEL RULES Rules 1.11, 1.12(b), 7.1(b), 8.4(e). 11. MODEL RULES Rule 1.12. 12. Forty-seven states, the District of Columbia, and the Judicial Conference of the United States have adopted, in whole or in substantial measure, the Model Code of Judicial Conduct promulgated by the American Bar Association in 1972. For a current list of citations to the Code as adopted in each state, see J. SHAMAN, S. LUBET, & J. ALFINI, JUDICIAL CONDUCT AND ETHICS § 1.02 nn. 18- 19 (1990). GEORGETOWN JOURNAL OF LEGAL ETHICS [V7ol. 4:771

impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control.

Rule 3.B Administrative Responsibilities

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence 13 that apply to him. Even when they are not expressly held by judicial standards, law clerks can be otherwise held to those standards by the expectations of their judges. At least two federal courts of appeal have concluded that what binds the judge also binds the law clerk. 14 Additionally, law clerks in federal courts are bound by a Code of Conduct for Law Clerks adopted by the Judicial Conference of the United States in 198 1,I5 and some judges bind their law clerks with oaths or written agreements. 16

ETHICALLY SENSITIVE AREAS FOR CLERK AND JUDGE

Three subjects are important enough to warrant particular discussion about a law clerk's duty: the confidentiality of chambers, the appearance of conflict of interest, and the limits imposed by decisionmaking on the record. How well a law clerk fulfills these duties is rarely if ever noticed by anyone, including her judge. What does attract (unwanted) attention is the occa-

13. CODE OF JUDICIAL CONDUCT Canon 3(A)(3),(A)(6), 3(B)(2) (1972). In Texas, the State Commission on Judicial Conduct publicly admonished Supreme Court Justice William W. Kilgar- lin in 1987 after two law clerks from his staff accepted free weekend vacations in Las Vegas from a law firm with cases pending before his court. The Commission found that Justice Kilgarlin had failed to require his staff to observe ethical standards. Blodgett, Texas Justices' Conduct Hit, 73 A.B.A. J., Sept. 1, 1987, at 19; Taylor, Defiant Justices Say They Won't Quit, NAT'L L.J., Jun. 29, 1987, at 7, col. 1. 14. Hall v. Small Business Admin., 695 F.2d 175, 179 (5th Cir. 1983) (see infra text accompanying note 29); Price Br'thers Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980), cert. denied, 454 U.S. 1099 (1981) (see infra text accompanying note 48). Cf. In re Corrugated Container Antitrust Litig., 614 F.2d 958, (5th Cir.), cert. denied, 449 U.S. 888 (1980) (see infra text accompanying note 21). 15. REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 28 (198 1). The Judicial Conference was established by Congress in 1922. Myers, Origin of the Judicial Conference, 57 A.B.A. J. 597, 597 (1971). Comprised of the Chief Justice, the chief judge of each judicial circuit, and a district court judge from each circuit, the Conference is charged with oversee- ing the conduct of business in the federal courts, and is empowered to make recommendations and adopt rules which enhance court efficiency, fairness, and cost effectiveness. See 28 U.S.C. § 331 (1988). Certainly this equality of honor which binds the judge and her clerk is reflected as well in the Code of Conductfor Law Clerks. The very language of the Canons of that Code closely parallels in many instances that of the Code of Judicial Conduct. The Code of Conduct for Law Clerks, as most recently amended in 1988, appears as an appendix at the end of this article. 16. Comment, The Law Clerk's Duty of Confidentiality, 129 U. PA. L. REV. 1230, 1236 (1981) (hereinafter Confidential Duty). 1991] ETHICS FOR JUDICIAL CLERKS 775 sional breach of one of these duties. The consequences of even a careless slip can extend far beyond the remainder of the clerk's term with the court, af- fecting not only her own professional reputation and career, but also the trust her judge will extend to the clerks who follow in subsequent years.

WHAT GOES ON IN CHAMBERS STAYS IN CHAMBERS A judge is bound by Canon 3 of the Code of Judicial Conduct to perform her duties impartially.1 7 She must not only refrain from public comment about a pending or impending proceeding in any court, but must also require similar abstention by her clerks.' 8 In 1919, a clerk for Justice McKenna of the United States Supreme Court used inside information about decisions not yet announced by the Court to speculate in the stock market. An investigation by the Attorney General resulted in both the law clerk's resignation and his criminal indictment.' 9 In In re Corrugated Container Antitrust Litiga- tion,20 the court considered whether a trial judge should have been disquali- fied after his law clerk volunteered her own opinions about the case to the defendant's lawyer and commented to a reporter on a settlement proposal in a related civil suit. The court of appeals found that the law clerk's comments to counsel raised many questions of propriety and that her statement to the press "most likely breached duties imposed upon her by Canons 3 A(6), and 3 B(2), of the Code of Judicial Conduct for United States Judges."'2' As the cause of appellate review for her judge's abuse of discretion is not how a law clerk would wish to be remembered - by her judge, by the courts, or by the spectating bar.

WHAT GOES ON IN CHAMBERS STAYS IN CHAMBERS PART II Aside from the law clerk's derivative duty to refrain from comments indi- cating pre-judgment or bias regarding pending cases, he has a duty to preserve the privacy of the court. Thus, long after the case has been completed, an obligation may still exist to keep confidential that information to which the clerk has been made privy only through the special access he acquired as a member of the chambers staff. The authors of The Brethren: Inside the Supreme Court bragged that more than 170 former law clerks had contrib- uted inside information to their expose of the inner workings of the Supreme Court.2 2 When law clerks or former law clerks tattle about the off-bench

17. See CODE OF JUDICIAL CONDUCT Canon 3(A)(1) (1972). 18. See id. at Canon 3(A)(6); CODE OF CONDUCT FOR LAW CLERKS Canon 3(c). 19. Newland, supra note 1, at 310. 20. 614 F.2d 958, 963 (5th Cir. 1980). 21. Id. at 968 (citations omitted). 22. B. WOODWARD & S. ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 3-4 (1979). Writing with obvious journalistic pride, the authors noted: 776 GEORGETOWN JOURNAL OF LEGAL ETHics [Vol. 4:771 remarks, behavior, or collegiality of their judges, they violate the trust placed 23 in them when they are invited into the private world of the chambers. Just as the cloak of confidentiality enhances the effectiveness of the relationship between attorney and client, it also enhances the effectiveness of the relationship between law clerk and judge. One judge has written: My relationship with my law clerks is a close and confidential one. If I cannot speak freely to them, they cannot do their job for me. And I could not speak freely to them if I thought that my questions, soul-searching, and opinions would be made matters of public record or private conversation. There is often a good deal of give and take and what finally emerges may not have been anyone's original thought. If my half-formed ideas or pre- liminary thoughts are not kept confidential by my law clerks-then I will have to keep them confidential myself and that will seriously impair the 24 decision-making process. Telling tales out of court is incompatible with the clerk's role as confidant and sounding board. It also threatens a major benefit of the clerkship for future clerks, and it should raise questions among the clerk's observers about his capacity for protecting the secrets of his future law firm and its clients.

Most of the information in this book is based on interviews with more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court.... Virtually all of the interviews were conducted "on background," meaning that the identity of the source will be kept confidential. This assur- ance of confidentiality to our sources was necessary to secure their cooperation. The sources who helped us were persons of remarkable intelligence. They had unusually precise recall about the handling of cases that came before the Court, particularly the important ones. However, the core documentation for this book came from unpublished material that was made available to us by dozens of sources who had access to the documents. We obtained internal memoranda between Justices, letters, notes taken at conference, case assignment sheets, diaries, unpublished drafts of opinions and, in several instances, drafts that were never circulated even to the other Justices. Id. What was intended by two journalists as a description of thorough and successful investigation is also an indictment of the elite among American law graduates for their shocking disloyalty to their Justices. But see Abramson, Should a Clerk Ever Reveal ConfidentialInformation? 63 JUDI- CATURE 361, 402 (1980), for the view that information furnished by law clerks to Woodward and Armstrong regarding non-pending cases may serve the public interest by revealing deliberative im- purities resulting largely from the dramatic politicization of the highest state and federal courts. The political and historical value in disclosure may justify eventual release of non-public information about courts and judges, and ought to persuade judges to consent to such publication. But it ought not, at least during the judge's lifetime, ever justify tales of former confidential employees told on their own initiative. 23. See In re Certain Complaints Under Investigation by an Investigating Comm. of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (1 1th Cir. 1986). The court of appeals found that a privilege for the benefit of the judge generally obtained with respect to communications between a judge and his clerks, limited only by competing "concerns of great moment." Id. at 1524. Judicial recognition of such a common law privilege evidences the importance which courts attach to their institutional privacy, and underscores the gravity of its violation by young Lawyers in whom special trust and confidence has been placed by their employer judges. 24. Anonymous judge quoted in Confidential Duty, supra note 16, at 1237. 1991] ETHICS FOR JUDICIAL CLERKS

POTENTIAL CONFLICTS ARISING FROM FUTURE EMPLOYMENT AND FAMILY

The brief terms of most clerkships make possible conflicts of interest and the appearance of impropriety. A clerk who begins a term in chambers already assured of association afterwards with a particular firm would face a conflict of interest were she to involve herself with a case in which her future employers appear. In Oliva v. Heller,25 a law clerk was sued for more than five million dollars in damages for working on a prisoner's petition for post- conviction relief after having accepted an offer from the U.S. Attorney's office. 26 In Miller Industries, Inc. v. CaterpillarTractor Co., 27 the court found that a law clerk's continued participation in a case in which the clerk's future employers were counsel required disqualification of his judge.28 In Hall v. Small BusinessAdministration, 29 the court found, relying on 28 U.S.C. § 455, that a magistrate should have recused himself when he learned on the first day of trial that his only law clerk was a member of the plaintiff class in the sexual discrimination suit, that she had left defendant's employ complaining of sexual discrimination, and that she had accepted a job offer from plaintiffs' counsel. 30

25. 670 F. Supp. 523, 525 (S.D.N.Y. 1987), aff'd, 839 F.2d 37 (2d Cir. 1988). 26. The court found her entitled to derivative judicial immunity for actions within the scope of her employment with the court. Id. at 526. 27. 516 F. Supp. 84 (S.D. Ala. 1980). 28. Id. at 86, 89 (citing 28 U.S.C. § 455(a) which requires a judge to disqualify himself "in any proceeding in which his impartiality might reasonably be questioned"). 29. 695 F.2d 175 (5th Cir. 1983). 30. Id. at 177-79. Other cases are collected in Annotation, Conduct or Bias of Law Clerk or Other JudicialSupport Personnel as WarrantingRecusal of FederalJudge or Magistrate, 65 A.L.R. FED. 775 (1983). The Judicial Conference's Advisory Committee on Codes of Conduct thinks that disqualification of the judge is not necessary so long as the clerk is excluded from the case in which the future employer is involved. Advisory Op. No. 74 (Oct. 26, 1984). The Advisory Committee takes the same position when the clerk's future employer is the United States' Attorney. Advisory Op. No. 81 (Sept. 14, 1987). Compare the Conference's disparate treatment of the appearance of impropriety arising from employment of a clerk's spouse in a case. In a 1977 Advisory Opinion, the Committee on Judicial Activities relied upon "the spirit of Canon 3 C(l)(c)" in concluding that a judicial clerk should not work on a case in which the firm employing his or her spouse appears. The Committee's view did not depend on the spouse's personal involvement in the case, nor, conversely, on the impenetrability of any "Chinese wall" within the firm. Distinguishing a prior ABA Formal Opinion which allowed an adequately informed client to decide whether to continue representation when his lawyer's spouse worked in an opposing firm, the Committee noted the absence of any client to whom the law clerk or judge coud refer the decision. The Committee was unpersuaded that referral to the attorneys would suffice in the alternative. Advisory Op. No. 5 1, Advisory Com- mittee on Judicial Activities (Aug. 15, 1977). The Committee also thought that a different question would be presented were the spouse an Assistant United States Attorney, public defender, or other government attorney, because of the absence of a financial interest on the spouse's part. Id. (citing Advisory Opinion No. 38). This view fails to consider the importance of a spouse's interest in tenure and advancement as a government lawyer. If public employment ambitions can be just as important to a clerk's spouse as private GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771

Many judges make it known to applicants for their clerkships that they prefer young lawyers who will join local firms after their stint with the judge. Such a preference increases the likelihood of conflicts involving law clerks, and such clerks ought to be retained by judges only after consideration of the concomitant risk to efficient chambers administration. In any case, the decision about what to do about an apparent conflict of interest, like most other decisions in his court, belongs to the judge, not the clerk. "Judges recuse themselves, not law clerks."' 31 Law clerks ought to heed the advice of Rule 1.12 of the Model Rules32 and keep their judges well informed about employ- 33 ment interviews and offers. Judge Alvin B. Rubin, who authored the opinion in Hall v. Small Business Administration, opined in a handbook for federal law clerks: "When a clerk has accepted a position with an attorney or with a firm, that clerk should cease further involvement in those cases in which the future employer has an interest."' 34 Judge Rubin's strict view of law clerk purity no doubt stems from his experience in an appellate court, where several judges are each served by three law clerks. Withdrawal by one clerk will be relatively pain- less for the appellate judge who can easily recruit a stand-in from his own or from another judge's chambers. However, many other courts lack such resources. Like federal magistrates, many state judges enjoy the services of but one clerk; indeed, some judges must share a single clerk. Substitutes can be hard to come by in rural courts. The limitations of a small pool of available law clerks might seem well illustrated by the web of conflicts potentially handicapping Judge Raymond Acosta's use of his law clerks in mass tort litigation in Puerto Rico. Fifty- one Puerto Rican law firms appeared for 2,300 defendants at a time when less than 500 lawyers comprised the entire federal bar of the island. One clerk's brother was a partner in a San Juan law firm representing 58 plaintiffs; the other clerk's brother was a member of the firm representing the defendant corporation. In In re Allied-Signal, Inc.,"3 the Court of Appeals employment ambitions, then the safeguards concerning judicial clerks married to public lawyers ought to be as stringent as those for the clerk spouses of private lawyers. 31. Interview of Judge David Schwartz, United States Court of Claims (1981). 32. MODEL RULES Rule 1.12(b) states in part, A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator. 33. CODE OF CONDUCT FOR LAW CLERKS Canon 3(D). See generally Comment, Protecting the Appearance of Judicial Impartiality in the Face of Law Clerk Employment Negotiations, 62 WASH. L. REV. 813 (1987). 34. A. RUBIN & L. BARTELL, LAW CLERK HANDBOOK 23 (Rev. 1989). 35. See In re Allied Signal, Inc., 891 F.2d 967, 972-73 (1st Cir. 1989), cert. denied, 110 S. Ct. 2561 (1990). 1991] ETHICS FOR JUDICIAL CLERKS declined to order a mistrial or disqualify Judge Acosta despite the potential appearance of impropriety presented by his clerks' family connections. Writ- ing for the court, Judge Breyer took some pains to distinguish this case from others in which a law clerk's family connections create at least the appearance of impropriety. Recognizing that "the appearance of impropriety" has a relativist component, the Appeals Court noted that The risk that a law clerk, or some other staff member, will have a brother or sister or some other family member involved in this case is a likely concomitant of trying such a large case in a small district.... [A] knowledge- able objective observer is therefore more likely to see the relation as implicit in the special circumstances than as an odd coincidence the failure 36 to avoid which might suggest bias. In addition to the external context in which propriety is tested, Judge Breyer noted that Judge Acosta had shown an appreciation for circumstances which demanded withdrawal by granting a recusal motion in an ear- lier case in which both a former law clerk and a brother of the only available current law clerk appeared as counsel. 37 In a complex case such as Allied Signal, however, the benefit of the normally appropriate procedure of deny- ing the clerk's participation in the case was outweighed by the potential contributions of two career law clerks who had been with Judge Acosta since the 38 case began. Judge Breyer appears not to have considered the relative ease with which substitutes untarnished by family connections could have been recruited for temporary assignment to Judge Acosta. Judge Breyer mistakenly measured the pool of available law clerks by the number on the island of Puerto Rico. Fixing the sum of available clerk resources at the number locally available arbitrarily overstated the burden on Judge Acosta of preventing even the appearance of impropriety. But judicial clerks ought to be at least as inter- changeable as federal judges, when substitution is prompted by the appearance of impropriety. 39 The pool of available substitutes should therefore be

36. Id. at 971-72. 37. Id. at 971 (citing Opinion and Order of Sept. 10, 1986, Pan American Grain, Inc. v. M/V Freedom, Civil No. 84-1795 (D.P.R.)). 38. Id. at 972-73. 39. The chief judge of each of the federal circuits is authorized to temporarily assign a district judge to another district within the circuit, or to the circuit's court of appeals, whenever the business of the court so requires. Accord 28 U.S.C. § 292 (1988). The Chief Justice of the United States may temporarily assign a district judge to another circuit, when the need arises. Id. See generally 1 C. MILLER, CYCLOPEDIA OF FEDERAL PROCEDURE §§ 1.17 & 1.21-1.30 (3d ed., 1989 rev. vol.). A recent example of the latter procedure is reported in United States v. Claiborne, 870 F.2d 1463 (9th Cir. 1989). During the period Aug. 1, 1988 through Jan. 31, 1989, 58 intercircuit assignments were undertaken by 47 judges. Report of the Proceedings of the Judicial Conference of the United States, supra note 15, at 18. An intercircuit assignment particularly instructive in this context occurred in 1981, when a judge GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771 measured nationwide. Certainly volunteers among judicial clerks and staff attorneys unrelated to members of the law firms involved in the suit could have been found elsewhere in the First Circuit (if not elsewhere in the federal court system) willing to take an assignment to Judge Acosta's chambers in San Juan - particularly if they were approached in the wintertime. In de- clining to order Judge Acosta to remove his clerks from the case, Judge Breyer assigned too little weight to the importance of consistency in dealing with questions of judicial impropriety and too much weight, as did Judge Acosta, to the court's convenience. Whether real or imagined, the influence said by some to be exercised by law clerks over their judges4O makes the appearance of impropriety by a law clerk as serious as the appearance of impropriety by his judge. Rules and remedies for the former are reasonably 4 drawn from among those for the latter. ' As Judge Acosta's case illustrates, family relationships, like employment, can produce apparent conflicts of interest for the law clerk. In Parker v. Connors Steel Co.,42 the court found an appearance of partiality where the law clerk's father was a partner in the firm representing a party. While the appellate court did not require the trial judge's recusal in either Parker or Allied Signal, the judges' handling of the issue came under close scrutiny on appeal. To avoid the necessity for such scrutiny, the law clerk owes the judge prompt notice of either family or career connections with a case in the judge's court. Federal law prohibits the appointment of a federal judge's family member to "any office or duty in any [federal] court."' 43 The Comptroller General has stated that the position of law clerk is not an office or duty within the of the Eastern District of Virgina was ordered by Chief Justice Burger to San Juan. Designation of District Judge for Service in Another Circuit (the Hon. Robert R. Merhige, Jr. to the District of Puerto Rico) (June 13, 1981); Inter-Circuit Assignment of a United States Judge, Certificate of Need, United States District Court for the District of Puerto Rico (1st Cir., March 24, 1981). In San Juan, Judge Merhige considered a motion for disbarment brought by the governor of Puerto Rico, Carlos Romero Barcelo, against his apparent successor and political nemesis, Rafael Her- nandez Colon. The motion was based upon Hernandez Colon's televised claim that Romero Barcelo had hired an assassin to kill Hernandez Colon and burn down the building where guberna- torial ballots were being counted. In re Hernandez Colon, No. 80 Misc. 0052, December 28, 1982. This cause cilkbre pitted the leaders of Puerto Rico's two major political parties against each other in federal court. Neither Chief Judge Coffin nor Chief Justice Burger appears to have regarded the island's small coterie of federal judges as the total pool from which a judge had to be drawn. 40. See, e.g., Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. NEWS & WORLD REP., Dec. 13, 1957, at 74; Rogers, Do Law Clerks Wield Power in Supreme Court Cases?, U.S. NEWS & WORLD REP., Feb. 21, 1958, at 114; see also Crump, Law Clerks.- Their Roles and Rela- tionships with Their Judges, 69 JUDICATURE 236 (1986); Mahoney, Law Clerks: For Better or Worse?, 54 BROOKLYN L. REv. 321, 326-27 (1988). 41. A judge would not inappropriately express himself on the subject by paraphrasing Caesar: "I wished my clerk to be not so much as suspected." Cf PLUTARCH, LIvEs, CAESAR, § 10. 42. 855 F.2d 1510 (11th Cir. 1988), cert. denied, 490 U.S. 1066 (1989). 43. 28 U.S.C. § 458 states: "No person shall be appointed to or employed in any office or duty in 1991] ETHICS FOR JUDICIAL CLERKS meaning of this prohibition," so the anti-nepotism statute apparently does not prevent a judge from appointing as a law clerk his own or a colleague's relative.45 The Judicial Conference's Advisory Committee on Codes of Con- duct has announced, however, that the Code of Judicial Conduct sets a standard stricter than that of the nepotism statute, and prohibits a judge from hiring as her clerk the son or daughter of a judge sitting on the same court.4 The Committee relied upon Canons 2 and 3(B)(4) as the basis for its opinion.47 A similar limitation ought to bind every judge.

JUDGES AND THEIR CLERKS ARE CONSTRAINED BY THE RECORD

As the judge's research assistant, the law clerk is free to investigate as thoroughly as time permits the legal issues presented in a case before the court. The same is not true for issues of fact. A law clerk must curb her curiosity about matters of fact when it cannot be satisfied by what has been placed in the record. She is not free to do her own investigation to supple- ment facts provided by the parties, except as to facts of which the court is free to take judicial notice. Such facts generally include only those within everyday common knowledge and those readily ascertainable from indisputa- ble sources. 48 Otherwise, the law clerk must confine herself to the record, or else she and her judge can be accused of prejudice against a party. In Price Brothers v. Philadelphia Gear Corp. 9 a pipe manufacturer claimed that gears supplied by the defendant in a pipe-making machine were defective, amounting to a breach of warranty. At some point before trial, the judge's law clerk travelled, without notifying either party, to inspect the any court who is related by affinity or con-sanguinity within the degree of first cousin to any justice or judge of such court." 28 U.S.C. § 458 (1988). 44. See supra note 2. The opinion leaves very much open the applicability of the statute to staff attorney appointment. 45. It is at least arguable, however, that the Comptroller General was simply wrong. The dis- tinction he makes might make some sense in situations where law clerk salaries were paid out of pocket by the judges for whom they worked. However, as already noted, by 1886, Congress had authorized payment for one clerical assistant for Supreme Court Justices and increased that to two in 1919. Federal circuit judges gained their first congressionally authorized clerks in 1930, and in the year of the Comptroller General's opinion, certain district judges were allowed the same assistance. J. OAKLEY & R. THOMPSON, supra note 1, at 18. 46. Advisory Comm. on Codes of Conduct, Advisory Op. No. 64 (Aug. 25, 1980). In this context, the Committee regarded each district and circuit court as separate. A majority of the Commit- tee thought a judge could hire the relative of another judge on a different court in the same circuit, so long as that clerk was excluded from any participation in cases from the other court. 47. Id. 48. See FED. R. EvID. 201. See generally MCCORMICK ON EVIDENCE, §§ 328-35 (3d ed. 1984); 9 J. WIGMORE, EVIDENCE § 2569 (Chadbourn rev. 1981); Davis, "There is a Book Out... " An Analysis of JudicialAbsorption of Legislative Facts, 100 HARV. L. REV. 1539 (1987); Morgan, Judi- cial Notice, 57 HARV. L. REV. 269 (1944). 49. 649 F.2d 416 (6th Cir.), cert. denied, 454 U.S. 1099 (1981). GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771 machine as it was installed in the plaintiff's factory. On appeal, the court found that such an adventure raised serious questions about the impartiality of fact-finding by the trial judge and created a presumption of prejudice to the defendant at trial.50 In Kennedy v. Great Atlantic & Pacific Tea Co.,51 a law clerk (with the unfortunate name of James Madison) on a rainy evening took his date to inspect the grocery store site of a slip and fall. When defendant's counsel found out, he called the law clerk to testify at trial. On appeal, the court found sufficient prejudice from the clerk's violation of canon 3(A)(4) of the Code of Judicial Conduct and of the FederalRules of Evidence Rule 60552 to warrant reversal and remand. 53 "It was his duty," wrote the court, "as much as that of the trial judge to avoid any contacts outside the record that might affect the outcome of the litigation."'54 What may have seemed to be an extra effort by a diligent subordinate at the time can prove a life-long professional embarrassment for the law clerk who investigates outside the record. The obligation to remain within the scope of the record goes beyond re- fraining from inspections of the scene. It extends to ex parte communication to the judge of facts relevant to disposition of the case. 55 The law clerk's role as a judge's research assistant does not necessarily make every communication between clerk and judge proper. On the contrary, when a clerk offers a judge deciding a case information about anything but law, the clerk usurps the role of counsel. Such communications are improper, only in part because they are typically ex parte. As a judge's research assistant, a clerk is expected to discover relevant law in published cases and promulgated statutes or regulations. To discover the law itself, a clerk is often expected to add the gloss of its published interpretations by legal scholars. That the law clerk frequently delivers to the judge his findings about law only after the record is closed, and without particular notice to the attorneys, seems nevertheless fair for the parties because of a convention regarding accessibility: The law and its interpretation is presumed to be out there for every lawyer to find.5 6 Clearly, albeit curiously, this convention reaches not only law found in the public record, but also its

50. Id. at 419-20. 51. 551 F.2d 593, 594 (5th Cir. 1977). 52. "[T]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." FED. R. EvID. 605. 53. 551 F.2d at 596-97. Acknowledging that Rule 605, by its terms, applied only to the judge, the court of appeals nevertheless found that presenting the presiding judge's law clerk to the jury as a witness posed the same threat to the jury's independence of judgment as would presenting the judge himself. Id. at 598. 54. Id. at 596. 55. "A judge should.., neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." CODE OF JUDICIAL CONDUCT Canon 3(A)(4) (1972). 56. See 9 J. WIGMORE, supra note 48, § 2569. "Since [legal facts] are to be decided by the judge, 1991] ETHICS FOR JUDICIAL CLERKS

interpretation, which is often found in privately published journals and trea- tises. In light of this convention, the clerk and his judge do not prejudice a party when the clerk delivers ex parte the results of legal research, even when such research includes cases or law review articles unmentioned by counsel in briefs or comments on the record. Indeed, a clerk's discovery of binding precedent not previously offered by counsel ought to be a moment of triumph for the clerk and satisfaction for his judge. The same is not, and should not be, true for the clerk's report of facts other than law and its associated commentary. Here applies the court's obligation to consider and decide within the constraints of a record dictated by counsel. Just as a law clerk's visit to the scene breaches the record of the case, so should a law clerk's gleaning of facts by research in other than legal libraries or databases. Where, for example, the record leaves the judge un- clear about how a machine, a bank, a drug, or a culture operates, the clerk ought not to repair to the local library for a text on the subject. Neither the social nor the physical sciences ought to be presumed to be as accessible to the legally trained as the law and its interpretation. 57 Thus, the convention regarding communications about law should not reach facts,58 and a clerk generally ought not to engage in research to enlarge upon the non-legal facts of the record. Judicial notice, an alternative convention, permits a judge to introduce into the record certain facts, but only after alerting counsel and affording them opportunity to challenge or qualify the source from which these facts are to be drawn. 59 Thus, if a judge and her clerk conclude that research to

he is at liberty to investigate the facts for himself in addition to receiving the evidence which the parties may offer." Id. at 725 (emphasis in original). 57. My colleague, Professor Andre Moenssens, has reminded me that law review articles are sometimes improperly relied upon for non-legal facts as well as, or instead of, legal interpretations. He tells of a series of law review notes and comments which all reported criticism of DNA testing (for identification of bodily secretions) made by scientists who had assumed an adversarial position regarding DNA identification reliability. The criticism appeared in an article by experts employed by the defense in a well-publicized trial. Their views were never subjected to expert peer review or presented to juried scientific journals; nevertheless, these opinions achieved more and more prestige in the legal literature as they were picked up and repeated by student authors who failed to adequately survey the relevant scientific literature. See Moenssens, DNA Evidence and its Critics-How Valid Are the Challenges?, 31 JURIMETRICS J. at nn. 12, 29, & 40 (1990). 58. Justice Marshall wrote in United States v. Wilson, 32 U.S. 150, 150 (1833): [T]he judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially; ... The looseness which would be introduced into judicial proceedings [otherwise] would prove fatal to the great principles of justice. 59. FED. R. EvID. 201(e). A complementary rule regarding legal facts exists in some jurisdic- tions. See, e.g., ALASKA R. EvID. 202; FLA. STAT. ANN. § 90.202 (West 1979); MoNT. R. EVID. 202; TEX. R. EvID. 202. No such rule exists in federal courts. These rules pertaining to legal facts are permissive, that is, they make explicit the judge's power to take notice of legal facts other than those offered by counsel; they do not incorporate the common notice and comment limitations (like those in FED. R. EVID. 201(c) and (e) on taking notice of facts). GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771 produce additional facts is essential, the record should be reopened in order to record notice to counsel and their response to either the importance of the research or the validity of its results. If supplementation of the facts in the record by a law clerk's research is normally to be discouraged and is only to be permitted in most instances after notice and comment by counsel, then it should follow with equal vigor that a clerk cannot offer his judge his expertise in matters other than law. Judges Leventhal and Wyzanski are both known to have engaged particular law clerks because of their non-legal expertise. 60 Judge Wyzanski appointed 61 a Harvard economist as his law clerk to assist with a difficult antitrust case. Judge Leventhal employed a scientifically trained clerk to help with difficult environmental cases. While Judge Wyzansky later admitted he would not make another such appointment, in part because of his concerns about the undue influence on the judge of an expert in chambers,62 Judge Leventhal called for special clerkships reserved for the scientifically trained.63 When a law clerk, also trained as an economist or a biologist, is available within chambers to offer economic or biologic information to a judge deciding fac- tual issues of economics or biology, the parties' right to a decision on the record is violated. Affording notice and an opportunity for comment on the clerk's findings cannot alleviate the harm without leading inexorably to the law clerk's transmutation from chambers staff to witness. Success in a field other than law ought not, however, create an obstacle to

60. Wald, Making "Informed" Decisions on the District of Columbia Circuit, 50 GEO. WASH. L. REV. 135, 152 (1982). 61. Id. at 152 n.80. 62. Wyzanski, The Law of Change, 38 N.M.Q. 5, 18-20 (1962). Judge Wyzanski's law clerk, Professor Carl Kaysen, agreed with his judge that the chambers expert created more problems than he solved: [I]t may be argued that everything that goes towards influencing the Court's decision, outside what is in the mind of the judge himself should be spread on the record.... Even if it is assumed that every judge is as well able to interpret what an economic expert tells him in private, use what is useful, and reject what is not, as Judge Wyzanski clearly was, and that therefore the parties are in no way prejudiced by this procedure, it may be argued that the adversary process is changed in an undesirable way. Ideally, the judge functions as an expert only in law; in other areas he is a layman, one unusually gifted in the art of receiving instruction from those temporary experts, counsel for the contending parties, on the substantive, non-legal facts before him. So instructed, he decides between the contending views presented to him. To inject into this process an expert in a particular class of facts and to allow him private access to the judge, protected from the scrutiny of examina- tion by the parties, undermines to some extent the adversary character of the proceedings. The more weight the expert has in the outcome, the more it can be argued that an ex parte process is being substituted for the traditional adversary proceedings.... Webster, The Use of Economics Experts as Witnesses in Antitrust Litigation, 17 THE RECORD 456, 460 (1962) (quoting from a speech by Carl Kaysen). 63. Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 550-552 (1974). 1991] ETHICS FOR JUDICIAL CLERKS subsequent appointment as a law clerk by a judge overzealous to prevent the appearance of impropriety by the suggestion of ex parte fact finding or improper influence. Any limitation on the communications between a judge and her chambers staff must, in the end, be largely self-enforced. A judge who announces a preference for one or more non-legal backgrounds ought to make clear to her law clerks from the outset how the record must limit the clerk even in the field of his expertise. Just as a careful clerk working for a careful judge will always relate each proposed conclusion of law to a case or statute, a careful clerk working for a careful judge will always relate each finding of fact to the specific part of the record in which supporting evidence can be found. Such a practice is the best safeguard against extra-record fact finding.

CONCLUSIONS

Judicial clerks who have been admitted to the bar are obliged to conform their professional conduct to ethical standards adopted by the bar, unless a higher standard applies because of their special status as court insiders. Whether admitted to the bar or not, all judicial clerks must conform to certain standards set by their judges. Some of these judge-made standards, particularly those derived from standards orginally imposed on the judges themselves, have appeared in case law. Others are transmitted informally by judges as part of each clerk's orientation. The standards which bind judicial clerks should also bind staff attorneys and students working as interns. The most important of these behavioral norms follow from the respect owed litigants by all court personnel and the loyalty owed judges by all staff members. From respect for litigants comes the duty to act impartially and with meticulous regard for the record; from loyalty to the judge comes the duty to preserve even the appearance of impartiality and the duty to keep silent about chambers matters. A judge's law clerk should watch for potential conflicts of interest arising from relationships of family or future employment. A clerk should immedi- ately bring any potential conflicts to the attention of her judge. It is for the judge, and not the clerk, to decide when the potential is serious. A judge's law clerk should not gossip. His reticence should reach not only matters under the court's active consideration, but also anything which the clerk has learned through the special access the job affords. This duty survives the end of the clerkship. A judge's law clerk should not investigate, nor introduce to the deliberation of the court, facts about any subject but the law. Upon each law clerk's faithfulness to these standards rest that clerk's reputation, every judge's confidence, and the future of the office. GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771

APPENDIX

CODE OF CONDUCT FOR LAW CLERKS

CANON 1

A LAW CLERK SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY AND THE OFFICE An independent and honorable judiciary is indispensable to justice in our society. A law clerk should observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. The standards of this Code shall not affect or preclude other more stringent standards required by law, by court order, or by direction of the appointing judge.

CANON 2

A LAW CLERK SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES A law clerk should not engage in any activities that would put into question the propriety of the law clerk's conduct in carrying out the duties of the office. A law clerk should not allow family, social, or other relationships to influence official conduct or judgment. A law clerk should not lend the prestige of the office to advance the private interests of others; nor should the law clerk convey or permit others to convey the impression that they are in a special position to influence the law clerk.

CANON 3

A LAW CLERK SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY The official duties of a law clerk take precedence over all other activities. Official duties include all the duties of the office prescribed by law, resolution of the Judicial Conference of the United States, the court in which the law clerk serves, and the appointing judge. In the performance of these duties, the following standards apply: A. A law clerk should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and of the office. B. A law clerk should maintain professional competence in the profession. A law clerk should be dignified, courteous, and fair to all persons with whom the law clerk deals in the law clerk's official capacity. 1991] ETHICS FOR JUDICIAL CLERKS

A law clerk should diligently discharge the responsibilities of the office. A law clerk should bear in mind the obligation to treat fairly and courteously the general public as well as the legal profession. C. The relationship between judge and law clerk is essentially a confidential one. A law clerk should abstain from public comment about a pending or impending proceeding in the court in which the law clerk serves. A law clerk should never disclose to any person any confidential information received in the course of the law clerk's duties, nor should the law clerk employ such information for personal gain. This subsection does not prohibit a law clerk from making public statements in the course of official duties to the extent authorized by the appointing judge. D. A law clerk should inform the appointing judge of any circumstance or activity of the law clerk that might serve as a basis for disqualification of the judge, e.g., a prospective employment relation with a law firm, association of the law clerk's spouse with a law firm or litigant, etc.

CANON 4

A LAW CLERK MAY ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE A law clerk, subject to the proper performance of official duties, may engage in the following law-related activities: A. A law clerk may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice. B. A law 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. C. A law clerk may promote the development of professional organizations and foster the interchange of technical information and experience with others in the profession. A law clerk may make himself or herself available to the public at large for speaking engagements and public appearances designed to enhance the public's knowledge of the operation of the court system.

CANON 5

A LAW CLERK SHOULD REGULATE EXTRA-OFFICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH OFFICIAL DUTIES

A. Avocational Activities. A law clerk may write, lecture, teach, and speak on nonlegal subjects and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 4:771

detract from the dignity of the office or interfere with the performance of official duties. B. Civic and CharitableActivities. A law clerk may participate in civic and charitable activities that do not detract from the dignity of the office or interfere with the performance of official duties. A law clerk may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization and solicit funds for any such organization subject to the following limitations: (1) A law clerk should not use or permit the use of the prestige of the office in the solicitation of funds. (2) A law clerk should not solicit court personnel to contribute to or participate in any civic or charitable activity, but may call their attention to a general fund-raising campaign such as the Com- bined Federal Campaign and the United Way. (3) A law clerk should not solicit funds from lawyers or persons likely to come before the court in which the law clerk serves. C. FinancialActivities. (1) A law clerk should refrain from financial and business dealings that tend to detract from the dignity of the office, interfere with the proper performance of official duties, exploit the law clerk's position, or involve the law clerk in frequent transactions with individu- als likely to come in contact with the law clerk or the court in which the law clerk serves. During the clerkship, a law clerk may seek and obtain employment to commence after the completion of the clerkship; if any law firm, lawyer, or entity with whom a law clerk has been employed or is seeking or has obtained future employment appears in any matter pending before the appointing judge, the law clerk should promptly bring this fact to the attention of the appointing judge, and the extent of the law clerk's performance of duties in connection with such matter should be determined by the appointing judge. (2) Neither a law clerk nor a member of the law clerk's household should solicit or accept a gift, bequest, favor or loan from anyone except for- (a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the law clerk and a family member to attend a bar-related function or an activity devoted to the improvement of the law, the legal system, or the administration of justice; (b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a law clerk residing in the law clerk's household, including gifts, awards and benefits for the use of both the spouse or other family member and the law clerk (as spouse or family member), 1991] ETHICS FOR JUDICIAL CLERKS

provided the gift, award or benefit could not reasonably be per- ceived as intended to influence the law clerk in the performance of official duties; (c) ordinary social hospitality; (d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commen- surate with the occasion and the relationship; (e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require that the law clerk take no official action with respect to the case; (f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not law clerks; (g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or (h) any other gift, bequest, favor or loan, only if: (i) the donor has not sought and is not seeking to do business with the court or other entity served by the law clerk; or (ii) the donor is not a party or other person who has had or is likely to have any interest in the performance of the law clerk's official duties. (3) A law clerk should report the value of any gift, bequest, favor, or loan as required by statute or by the Judicial Conference of the United States. D. Practice of Law. A law clerk shall not practice law in any federal, state, or local court, or undertake to perform legal services for any private client in return for remuneration. This prohibition, however, shall not be construed to preclude the performance of routine legal work necessary to the management of the personal affairs of the law clerk or a member of the law clerk's family, so long as: (1) Such work is done without compensation or for nominal compensation; (2) It does not require any act, including the entry of an appearance in a court of the United States, that would suggest that the position of Law Clerk is being misused, that preferential treatment is being sought by virtue of the holding of that position, or that would otherwise be inconsistent with the law clerk's primary responsibility to the court; and (3) So long as such activity does not have actual conflict or appear in conflict with court duties or will not reflect adversely on the court or create the appearance of impropriety. A law clerk should ascertain and observe any limitations imposed by the appointing judge or the court on which the appointing judge serves concerning the practice of law by a former law clerk before the judge or the court. GEORGETOWN JOURNAL OF LEGAL ETHICS [V/ol. 4:771

CANON 6

A LAW CLERK SHOULD REGULARLY FILE ANY REQUIRED REPORTS OF COMPENSATION RECEIVED FOR ALL EXTRA-OFFICIAL ACTIVITIES A law clerk may receive compensation and reimbursement of expenses for all extra-official activities permitted by this Code, if the source of such payments does not influence or give the appearance of influencing the law clerk in the performance of official duties or otherwise give the appearance of impropriety, subject to the following restrictions: A. Compensation. Compensation should not exceed a reasonable amount nor should it exceed that normally received by others for the same activity. B. Expense Reimbursement. Expense reimbursement should be limited to the actual cost of travel, food, and lodging reasonably incurred by a law clerk and, where appropriate to the occasion, by the law clerk's spouse. Any payment in excess of such an amount is compensation. C. Public Reports. A law clerk should make and file such reports as may be prescribed by law or by the Judicial Conference of the United States. Notwithstanding the above, a law clerk shall not receive any salary, or any supplementation of salary, as compensation for official services from any source other than the Government of the United States.

CANON 7

A LAW CLERK SHOULD REFRAIN FROM POLITICAL ACTIVITY A. PoliticalActivity. A law clerk should refrain from political activity; a law clerk should not act as a leader or hold office in a political organization; a law clerk should not make speeches for or publicly endorse a political organization or candidate; a law clerk should not solicit funds for or contribute to a political organization, candidate for political or public office; a law clerk should not otherwise engage in political activities.

EFFECTIVE DATE OF COMPLIANCE Persons to whom this Code becomes applicable should arrange their affairs as soon as reasonably possible to comply with it and should do so in any event within thirty days of the appointment.