Judicial Promotion of Pro Bono
Court Employee Pro Bono Rules
Federal
Canon 4, Code of Conduct for Judicial Employees
According to Canon 4 of the Code of Conduct for Judicial Employees, a judicial employee can provide pro bono legal services in civil matters, “so long as such pro se, family, or pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the judicial employee’s workplace, and does not interfere with the judicial employee’s primary responsibility to the office in which the judicial employee serves, and further provided that… in the case of pro bono legal services such work:
- is done without compensation;
- does not involve the entry of an appearance in any federal, state, or local court or administrative agency;
- does not involve a matter of public controversy, an issue likely to come before the judicial employee’s court, or litigation against federal, state or local government, and
- is reviewed in advance with appointing authority to determine whether the proposed services are consistent with the foregoing standards and the other provisions of the code.”
For more information, the full text of the Code of Conduct for Judicial Employees can be found here: http://www.uscourts.gov/guide/vol2/ch2a.html
State
Arizona
Arizona Code of Conduct for Judicial Employees Canon 3(E) and 4(B)
According to Canon 3(E) of the Arizona Code of Conduct for Judicial Employees, “Judicial employees may assist citizens in identifying available procedural options and in understanding and complying with court procedures. Judicial employees shall not advise a particular course of action.”
In addition, under Canon 4(B) of the Code, “…judicial employees shall not engage in any business activity or secondary employment that:
- Involves an organization or a private employer that regularly conducts business with the court;
- Requires the employee to appear regularly in judicial or administrative agency proceedings.”
For more information, the full text of the Arizona Code of Conduct for Judicial Employees can be found here: http://www.supreme.state.az.us/ethics/Employee_Code_of_Conduct.pdf
California
According to Tenet Five of the Code of Ethics for the Court Employees of California, court employees must refrain from any actual impropriety such as soliciting funds on the job and recommending private legal service providers. Furthermore, according to Tenet Seven, court employees must “serve the public by providing procedural assistance …without giving legal advice.”
For more information, the full text of the Code of Ethics for the Court Employees of California can be found here: http://www.courtinfo.ca.gov/reference/documents/codethic.pdf
Delaware
According to Rule XVIII of the Delaware Supreme Court Internal Operating Procedures, “[t]here is no disqualification per se for a law clerk to work on a case involving the firm from which the law clerk has accepted a job offer. Those assignments will be left to the discretion of the individual Justice.” A law clerk, however, “is not permitted to work on a case on which the law clerk worked or of which the law clerk had knowledge prior to the clerkship.”
For more information, the full text of the Delaware Supreme Court Internal Operating Procedures can be found here: http://courts.delaware.gov/Rules/?iops.pdf
Iowa
According to Rule 11.3 of the Employee Code of Ethics, the employee’s position within the judicial branch deserves primary attention. Thus, outside employment is permissible only if it complies with all of the following criteria:
- The outside employment is not with an entity that regularly appears in court or conducts business with the court system.
- It does not require the employee to have frequent contact with attorneys who regularly appear in the court system.
- The outside employment is capable of being fulfilled outside working hours and is not incompatible, inconsistent, or in conflict with the performance of the employee’s duties and responsibilities.
- The outside employment does not require or induce the employee to disclose confidential information contained in court records or acquired through official duties.”
Massachusetts
According to Canon 3 of Rules of the Massachusetts Supreme Judicial Court, a Clerk-Magistrate shall not engage in the practice of law. The Court, however, outlines several scenarios in which a court clerk may intervene. The Court stresses that a clerk must act with “impartiality.” Therefore, although the Committee feels that providing assistance with filling out forms and offering procedural advice to litigants is fine, drafting documents, taking over a case and becoming an advocate on behalf of a litigant is prohibited. The Committee feels that it is not the role of a court employee to advise a litigant to bring a problem before the court or to suggest the specific manner of proceeding.
Canon 4(D) states that, “[a] Clerk-Magistrate may use his or her title to engage in activity to improve the law, the legal system, or the administration of justice.” In addition, under Canon 5(B), a Clerk-Magistrate “may participate in civic and charitable activities that do not reflect adversely on the Clerk-Magistrate’s impartiality or interfere with the performance of his or her official duties. A Clerk-Magistrate may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members,…” Accordingly, a Clerk-Magistrate “may solicit funds for any educational, religious, charitable, fraternal, or civic organization, but shall not use or permit the use of the prestige of the office or solicit his or her staff for that purpose.”
Finally, Canon 9 states that a Clark-Magistrate who has retired or resigned from the judicial branch “shall not perform court-connected dispute resolution services except on a pro bono publico basis in any court of the Commonwealth for a period of six months following the date of retirement or resignation.”
For more information, the full text of the Rules of the Massachusetts Supreme Judicial Court can be found here: http://www.massreports.com/courtrules/sjcrules.htm
Minnesota
According to a 2009 policy statement of the Minnesota Judicial Council, “no Minnesota state court employee shall engage in the practice of law, including, but not limited to, performing legal research and providing client advice.” However, an attorney employed by the Court system, who is not otherwise prohibited from doing so under Minnesota Statutes, may perform pro bono public legal services through a services organization approved pursuant to Rule 2T of the Continuing Legal Education Board. The attorney employee who intends to perform pro bono public legal services must obtain prior written approval from the appointing authority and the District or MJC Human Resources Manager.
Mississippi Rules of Appellate Procedure, Rule 47
According to Rule 47 of the Mississippi Rules of Appellate Procedure, “[n]o one serving as clerk of the Supreme Court or as a law clerk or secretary to a justice of the Supreme Court or a judge of the Court of Appeals or as an employee of either court shall practice as an attorney or counselor in any court or before any agency of government while holding that position. No such person shall, after separating from that position, ever participate, by way of any form of professional consultation or assistance, in any case that was pending in either court during the tenure of such position.
For the full text of Rule 47 of the Mississippi Rules of Appellate Procedure, please click here: http://www.mscra.org/rules_of_appellate_procedure.pdf
Nevada
Under Canon 5 D of the Nevada Code of Judicial Conduct, a full-time judicial employee who is otherwise qualified to practice law in the State of Nevada may “provide pro bono legal services in civil matters, so long as such pro se, family, or pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the judicial employee’s workplace, and does not interfere with the judicial employee’s primary responsibility to the office in which the judicial employee serves.”
However, the pro bono work must be done without compensation, must not involve the entry of an appearance in any federal, state, or court or administrative agency, must not involve a matter of public controversy, an issue likely to come before the judicial employee’s court, or litigation against the federal, state, or local government, and must be reviewed in advance by the appointing authority to determine whether the proposed services are consistent with the Nevada Code of Judicial Conduct.
Furthermore, according to Canon 4 of the Model Code, court employees are authorized to “provide information about available pro bono, free/low cost civil legal services, legal aid programs and lawyer referral services.”
For more information, the full text of the Nevada Code of Judicial Conduct can be found here: http://www.courtethics.org/Nevada%20Model%20Code%20of%20Conduct.pdf
New Jersey
According to Canon 1(F) of the Code of Conduct for Judiciary Employees, “[n]o court employee shall give legal advice outside the scope of his or her judiciary employment, or…recommend the names of private attorneys.” Furthermore, Canon 5(B)(2) states that subject to notice requirements, “any court employee may teach, lecture or write on any subject, “ and Canon 5(b)(7) states that “[n]o judiciary employee shall engage in outside employment that regularly requires the employee’s appearance in court, or before an arbitrator, mediator, or hearing officer.
In addition, Canon 5(b)(8) states that “[n]o judiciary employee shall accept court appointment as an appraiser, receiver, commissioner, guardian ad litem, administrator, or other title for which a fee may be allowed in any matter pending in any court unless the employee agrees in advance to waive such fee.” Canon 5(C)(1) clarifies that “[l]aw clerks, judges’ secretaries, and employees in high-level managerial or policy-making positions shall be subject to the same limitations imposed on judges by the Guidelines for Extrajudicial Activities for New Jersey Judges….Employees subject to this Canon may apply for permission on a case-by-case basis to undertake activities otherwise precluded that could not reasonably be perceived by the public as impairing the appearance of impartiality of the judiciary.
Finally, according to Canon 5(D)(2) court employees may not solicit funds at any time from persons known to them as lawyers or litigants, nor can they solicit funds from charitable organizations while at the courthouse or while engaged in official functions.
For more information, the full text of the New Jersey Code of Conduct for Judiciary Employees can be found here: http://www.judiciary.state.nj.us/rules/appendices/code_emp.htm#P114_11154
Pennsylvania
Order re: Law Clerks Employed by Judges of the Courts of the Unified Judicial System of Pennsylvania – December 21, 2004
According to the Order re: Law Clerks Employed by Judges of the Courts of the Unified Judicial System of Pennsylvania, “…all law clerks employed by judges of the courts of the Unified Judicial System of Pennsylvania are prohibited from appearing as counsel in the division/section of the court in which the judge by whom they are employed serves. Furthermore, in courts which have no formally established divisions or sections, the law clerks are prohibited from appearing as counsel in the court itself.” Outside of this restriction, the permissibility of a law clerk’s private practice can depend on the discretion of the judge for whom they work.
Pennsylvania Rule of Appellate Procedure 3121
Rule 3121 of the Pennyslvania Rules of Appellate Procedure prohibits appellate court law clerks from practicing law “without prior approval of the judge on whose staff such person is employed or of the president judge if such person is not so employed.”
For more information, the full text of Rule 3121 can be found here: http://www.pacode.com/secure/data/210/chapter31/s3121.html
South Carolina
According to Canon 5(D) of the South Carolina Code of Conduct for Staff Attorneys and Law Clerks, a “staff attorney or law clerk shall not practice law in any federal, state, or local court, except in his official capacity as a staff attorney or law clerk, or undertake to perform legal services for any private client in return for remuneration. “ The lone exception to the rule allows the attorney to perform legal work necessary for the management of his personal affairs.
However, according to Canon 4(A) of the South Carolina Code of Judicial Conduct, a “staff attorney or law clerk may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, court administration, and the administration of justice.” Furthermore, Canon 4(B) of the Code states that the clerk “may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice, but should not participate in fund-raising activities for such an organization or agency.”
Canon 5(B) of the Code states that a “staff attorney or law clerk may participate in civic and charitable activities that do not detract from the dignity of his office or interfere with the performance of his official duties. He may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization and solicit funds for any such organization subject to the following limitations:
- He should not use or permit the use of the prestige of his office in the solicitation of funds.
- He should not solicit his subordinates to contribute to or participate in any civic or charitable activity, but he may call his subordinates’ attention to a general fundraising campaign…
- He should not solicit funds from lawyers or persons likely to come before the court he serves.”
The full tell text of the South Carolina Code of Judicial Conduct can be found here: http://www.sccourts.org/courtReg/displayRule.cfm?ruleID=501.0&subRuleID=Canon%204&ruleType=APP
Tennessee
Tennessee Supreme Court Rule 5
According to Tennessee Supreme Court Rule 5, a law clerk may act pro se and perform routine legal work incident to the management of the personal affairs of the assistant or a member of the assistant's family, and may provide pro bono legal services in civil matters, so long as such pro se, family, or pro bono legal work does not present an appearance of impropriety, does not take place while on duty or in the assistant's workplace, and does not interfere with the assistant's primary responsibility to the judge or justice whom the assistant serves, and further provided that:
(1) in the case of pro se legal work, such work is done without compensation (other than such compensation as may be allowed by statute or court rule in probate proceedings);
(2) in the case of family legal work, such work is done without compensation (other than such compensation as may be allowed by statute or court rule in probate proceedings) and does not involve the entry of an appearance in any court;
(3) in the case of pro bono legal services, such work: (i) is done without compensation; (ii) does not involve the entry of an appearance in any court; (iii) does not involve a matter of public controversy, an issue likely to come before the assistant's court, or litigation against federal, state or local government; and (iv) the proposed services are reviewed in advance with the appointing authority to determine whether the proposed services are consistent with the foregoing standards.
For more information on Tenn. Sup. Ct. Rule 5, please click here: http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/2009/Rule%205%20Adopted.pdf
Washington
RCW 2.56.020
According to RCW 2.56.020, neither the Administrator for the courts nor any assistant shall engage in the private practice of law except when performing “legal services of a charitable nature.” However, if the “legal services of a charitable nature” interfere “with the duties of the administrator or any assistant” the legal services may not be performed.
For more information, the full text of RCW 2.56.202 can be found here: http://apps.leg.wa.gov/RCW/default.aspx?cite=2.56.020
