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“Clerk-Loaning” Program Sparks Ethical Debate

By Duchess Harris, Litigation News Associate Editor – September 4, 2009

In today’s economic climate, the legal profession faces the same financial pressures all businesses do. Neither law firms nor court systems are immune, with hiring freezes and layoffs a regular occurrence. In an effort to keep the wheels of justice turning, Massachusetts is using a “clerk loaning” program that poses challenging ethical questions.

Ethical Questions
Experts and ethical advisory committees wonder whether this practice creates a genuine conflict that prohibits that firm from appearing before the judge (or court) where the associate “volunteers.” Critics express concern that the ubiquitous statue of justice may be viewed as peeking through her blindfold if courts embrace the practice of “borrowing” volunteer clerks who receive a salary from the firm to which they are “engaged.”

For years of course, firms have given judicial clerks “deferred offers” and “clerking bonuses” if the law student accepts a clerkship out of school. Reasons for this practice include that the future associate will build up valuable personal credibility with court personnel, gain insight into the operations of the court, may receive better training clerking for a trial judge than he or she might get in the first two years as an associate.

Though such an arrangement holds a promise of future employment (and even a large cash bonus), the clerk’s salary during the clerkship is paid by the court where he or she clerked. The difference with Massachusetts’ program is that clerks are in a financial position to “volunteer” only because they receive a salary during the clerkship from the law firm.

Benefits for Firms
The benefits to firms facing cash flow issues are preservation of cash (volunteer clerks receive only a percentage of their first year salary) and maintenance of good will with graduates who may come aboard later. Image conscious firms appear to prefer this result over the potential negative impact of flatly withdrawing from the offers of full-time employment from students for whom the firms have little or no billable work.

The Massachusetts Opinion
The Massachusetts Supreme Judicial Court’s Committee on Judicial Ethics (MA Committee) has blessed these clerk loans. Their June 8 opinion entitled “On Deferred Associates Serving as Volunteer Interns/Law Clerks” approves the practice.

“There are already rules that govern when a clerk plans to work for a particular firm after a clerkship. Judges don’t let clerks work on cases [involving firms] where they might work,” says Andrew S. Pollis, Cleveland, OH, cochair of the Section of Litigation’s Ethics and Professionalism Committee. Pollis does not feel that the Massachusetts approach presents a problem.

The MA Committee’s decision instructs the deferred associates and/or interns to keep the terms of their internship secret, even amongst fellow interns and associates. Likewise, firms are advised against any public acknowledgment of their “sponsorship” of interns.

“Volunteering is a sensitive issue because the court has to maintain an image of fairness and openness and must always project an image of propriety,” offers Scott E. Reiser, Roseland, NJ, chair of the Section’s Young Lawyers Subcommittee for the Ethics and Professionalism Committee. Reiser acknowledges that legal opinions regarding this question are both complex and sometimes inconclusive.

The New York Opinion
The New York Advisory Committee on Judicial Ethics (NY Committee) issued an opinion regarding the propriety of its state appellate courts “hiring” attorneys in various positions in the court without financial compensation by issuing strict guidelines. These include the required need for the individual to disqualify himself or herself to avoid the appearance of a conflict of interest with regard to any cases where the unpaid attorney’s former employers may appear before the judge for whom he or she works.

However, the NY Committee specifically makes mention of individuals brought into the court with the understanding that they are deferred hires of law firms and receiving compensation from them. With regard to these individuals, the opinion specifically states that the aforementioned rules are not applicable, but rather, a specific decision on these facts will be forthcoming. That opinion was published in April, but nothing has been made public since then.

Other States with Deferred Associate Strategies
The “deferred associates” as volunteer interns strategy is not limited to Massachusetts. State courts and law firms in Georgia are entering into similar agreements. New Jersey is exploring alternatives for keeping deferred associates who cannot be hired immediately engaged in the profession.

One strategy is to use volunteer (as opposed to job) fairs, where public interest groups seek traditional volunteers and not “stipend law graduates.” While this offers valuable experience, these arrangements are not without their own challenges, particularly financial concerns.

Keywords: Ethics, law clerks

  • September 9, 2009 – i think there are clear conflicts of interests issues however the courts and law firms will find no-conflicts because it is in their financial interests to have such arrangements.For example in a county in Northern California a clerk employed by the District Attorney's office calls the calendar and other clerical duties in the Arraignment conference Court of the Superior Court. The conflict is with the court as their budget would be strained if they had to pay that clerk and it was a necessary function,


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