Trial Court Law clerks to be bought [oops - paid for!] by private law firms! See poll!

Now that he has eliminated guardian ad litems for education, Chief Justice for Administration and Management Robert Mulligan [a/k/a "The CJAM] has come up with another bright idea – his plan, which looks like it will happen – let the big money firms pay for the SJC’s Trial Court’s law clerks and pick them out, too.  No I am NOT kidding!

THIS is ethics reform?  What our friend Ernie would call “Yet another Massachusetts-style Nationwide Search”

To quote the MBA ethics committee:

Andrew L. Kaufman, chairman of the Massachusetts Bar Association’s ethics panel, called the plan “a problem of judicial ethics for the trial courts” and added that the arrangement raises ethical issues for the sponsored clerks themselves.

“There’s a problem for the law clerks with respect to the Code of Professional Conduct governing lawyers, by reason of the fact that they are being paid by a private law firm while working in the judicial branch,” Kaufman said.

According to the CJAM, it will be fine for the law clerks to actually be paid by firms as long as they keep it a secret, the public doesn’t know, and the law clerks don’t brag on facebook or twitter.

I could not make this stuff up  

Note by David: I have edited the post and the title to clarify that these law clerks will be employed by the trial court, not by the SJC.  As far as I can tell from the article, the SJC will continue to select and pay its own law clerks.

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36 Comments . Leave a comment below.
  1. Let's clear up a few things

    First, because of budget cuts, all offers to Superior Court (i.e. trial court) clerks for the upcoming year were rescinded. That means more backlog and slower justice for all of us. So your title ("SJC law clerks") is misleading.

    Second, you say that the clerks will be "bought for" by private law firms - but you fail to mention that clerks will have to recuse themselves if their firm has a case in front of the court. This is still the case if a clerk has a job lined up with a firm for the following year or if they just came from a firm. The only difference is who funds these clerkships, which clerkships I would submit are necessary.

    Third, you seem to make the comparison between this scheme and advertising on a bus, as if justice is for sale. But the whole point is to keep it confidential. Firms cannot use this for marketing purposes, and the clerks will have to sign non-disclosure agreements, the violation of which will bring about their termination.

    Now if you want to debate the plan on the merits without insinuations and demagoguery, I welcome that debate.

    • Correction

      I see it was Charley who made the advertising comparison, not the author. So the third comment can (also) be directed to him.

    • Lets have the law firms pay for the judges while we are at it

      The idea that pitiful cosmetic procedures like the ones you cite will have any substantive effect is ludicrous.

      Firms cannot use this for marketing purposes, and the clerks will have to sign non-disclosure agreements.

      If the principle you suggest is valid, then why stop with clerks. Let's have the private law firms pay the salaries of the judges themselves, provided they agree not to use that fact for marketing purposes (of course).

      The judiciary should pay for its own clerks, or make do without them, just like police need to make do with the equipment they have, not ask the drug dealers to chip in for new cruisers. Asking the foxes to guard the chickens is a plan for slaughter, not justice.

      • But drug dealers *do* chip in for new cruisers, planes, and houses.

        It happens all the time, as when the police seize criminals' assets. They use it themselves in the line of work or auction it off and use the proceeds to supplement their budget.

        Why is the CJAM system "ludicrous"? Economic times are tough; the judiciary cannot pay for clerk (which affects us all); and some law firms have an overcapacity. No one is saying this is a perfect system, and it's only temporary. But just because it looks bad does not mean it's harmful in practice.

        There is precedent for this. Law firms in town farm out their lawyers to stints as assistant district attorneys (on the firm payroll), or to represent indigent clients as pro bono representation. Once the appropriate ethical barriers are set up, how is this any different?

        • Good Lord

          So your suggestion is that the courts seize the assets of some law firms -- the time of their attorneys to use your analogy -- and use them as they think best, or auction them off to supplement their budget.

          I have to admit there is a certain appeal to the idea of a judicial auction with numerous doleful attorneys up on the block being parceled out to the highest bidders. But I don't think it sounds like a recipe for more efficient administration of justice.

          I'm glad you agree this looks bad. In fact, I'd say it looks about as bad as the former speaker of the Massachusetts House being indicted. Maybe he is innocent, but it doesn't inspire confidence.

          As to your last point, prosecutors and defense attorneys present their cases before judges, who are supposed to weigh their arguments impartially. The advocates are supposed to be partisans, within the limits of the code of professional responsibility. This proposal will turn the judges themselves into partisans for whichever parties are closest to their law firm patrons. Lipstick on a pig, according to a saying that used to be common.

          • Apparently being hyperliteral is the order of the day.

            The asset forfeiture example was to illustrate the point that operating revenue comes from many sources. What matters is the influence those sources have on decision-makers. In tough economic times, can we really afford to be purists? If there are ethical safeguards, you do what you can with what you have, and then get creative.

            But your real point is directed towards the ethics of the thing. You don't believe judges will continue to be impartial under this system. Why? I don't think I need to repeat the article's recusal procedures.

          • Or the suggestion might have been..

            that drug dealers be allowed to pay the police dispatchers and evidence room clerks. Of course they would need to recues themselves in cases which involve their drug dealer.

        • Well following your logic bostonbound

          Why not confiscation of awards from highflying law firms to pay for the courts. Totally random of course we would not want one Law firm to think they were being unfairly fleeced or something. Maybe a court tax on awards won and lost so if you pay out 1 Million the court gets 5% and if you win 1 million the court gets 5% purely to cover courtroom costs. New robs maybe a new computer for the clerk or the Utility bill on the lights.

          All Aspects of the court system need to remain separate from those that plea before them. Isn't it practice enough that large law firms do shop for justices that they have a school or casual affiliate of a Partner or a firm member. I am not suggesting this has some how adversely effected outcomes but never the less it leaves some with a feeling that the scales are tipped in a certain way from time to time.

          If we allow the courts to become more like the legislature and executive branch where people and corporations, based on the ability to pay, are perceived to have inside knowledge or inside tracks to walk them through the system. Isn't this likely then to also fall into the systemic problem of mistrust and potential ethical failure? The majority of voters and residents in Massachusetts currently already have a sense of mistrust for our Political system we would be risking bring in the only system that has some modest amount of support as being a level playing field for Joe on the corner.

          As much as the case is being offered that suggests that a signing statement of no quid pro quo exists, your consequence is a little lean why not if a clerk were to violate and confidentiality they be barred from the possibility of ever becoming a member of the Bar and if a law firm were to hire such a clerk would also suffer a sanction of some punitive manner for doing so. Put some teeth in your argument and some one may listen but what you offer is only a 1/10th of 1% above useless when you are talking about the kind of money that can be thrown around when the situation warrants.

          As Usual Just my opinion

          • Sounds good to me.

            why not if a clerk were to violate and confidentiality they be barred from the possibility of ever becoming a member of the Bar and if a law firm were to hire such a clerk would also suffer a sanction of some punitive manner for doing so.
      • Is this really such a big deal?

        In the federal courts, most clerks begin their clerkship with a lucrative job in hand that will begin upon the end of their clerkship. Is what is being proposed here that much different? Or do you have an objection in that case as well?

        TedF

        • Starting with hand jobs? Has it gotten that bad in the judiciary?

          That obviously is a different  situation. Being paid by a law firm, and expecting to go to work at a law firm are two different things. Indeed, many law firms have been forced to pull or revise those "jobs in hand"  in recent months.

          • But is the conflict worse?

            I assume what we're worried about is conflict of interest. It seems to me that the clerk's incentives to do wrong are just about the same in the two cases.

            TedF

            • Yes, it is much worse

              The judge has more power than the attorneys. They argue, the judge decides.

              • Oh, I see

                You are focusing on the conflict of interest that the judge faces rather than the conflict of interest that the clerk faces.

                I guess that's a fair point, but based on my experience with both state and federal judges, a judge is not going to be swayed by the source of his or her law clerk's salary, just as I don't believe judges are swayed by their entanglements with the bar associations and law schools, even though some of these institutions (e.g., the BBA, or HLS) are dominated by lawyers at downtown firms or students heading to downtown firms.

                TedF

          • Different but similar

            A person going to work at a firm, who accepts an offer to clerk beforehand, usually gets benefits similar to these:

            1. The law firm pays for their bar preparation courses, and gives them a stipend to live on while they study. 2. The law firm pays them a bonus when they return from their clerkship, anywhere from 5,000 to 50,000 dollars, depending on length and prestige of clerkship.

            If you're saying that conferring benefits like these is dissimilar to getting paid a salary by the firm to clerk, I think you're really splitting hairs.

            If your point is that one is a conflict of interest and the other isn't, you need to provide more evidence. Either they both are, or they both aren't. The financial incentives are far too similar to claim otherwise.

            • Not at ALL the same

              Becoming valuable due to experience is not the same as being paid ZERO by the court system, being an employee of a private firm while clerking, and told it is okay as long as you keep your mouth shut.

              You, Mr. stas are comparing kumquats with watermellons.

              • Still not sure you see the similarity

                Lets make it simple:

                Scenario 1: Clerk's salary paid for by a law firm, for a 12 month term, after which the clerk returns to work at the firm. The firm pays their bar preparation fees, review courses, etc.

                Scenario 2: Clerk's salary paid by government for 12 month term, while the clerk holds an offer of employment from a firm, and expects to go there after finishing his/her term as a clerk. The firm pays their bar preparation fees, review courses, etc.

                You can make an argument that one of those brings less bias to the table, but your argument couldn't possibly be in good faith.

                A good faith argument might acknowledge that a person who holds an offer of employment, an offer that can be revoked at any time by their future employer, might act in a way to not anger their future employer.

                This is the same, in reality, as the bias you allege a clerk paid for by the firm will have. In either situation, a clerk's actions COULD be biased by the perceived reaction of their future employer.

  2. Charley -- it's clear you're not a NASCAR fan

    (Alternately, judges and bailiffs could be plastered with ads for household products and chewing tobacco, like NASCAR drivers. Expect to see Judge Gants with a "Skol" mesh baseball cap at your next hearing. - promoted by Charley on the MTA)

    After the tobacco settlement of 2003, Winston pulled out, as did a huge section of other tobacco companies -- all the major brands in fact.  As the NY Times points out it's not verboten, but it's really not happening.  Frankly, NASCAR's widening of fan base has resulted in more mainstream companies pricing out the tobacco companies.

    • um, by definition, no Blue Blog founder is going to be a NASCAR fan

      • Why is that?

        I've never understood why NASCAR is considered a "red state sport".  I don't see a connection between politics and car racing.  Is there something about car racing that makes one more likely to espouse conservative politics, or vice versa, that I'm missing?

        • Its that elitist thing

          The blues usually prefer formula one racing with its elitist  multinational venues, and cocktails and hors devours over beer and pretzels. NASCAR is too common, too proletariat, it's for believers, not thinkers. It's for the Reds, we Blues are SO above that.

      • I LOVE NASCAR

        One of my relatives even works for a company closely associated with NASCAR racing.

        As far as I am concerned, the more NASCAR racing the better for everyone. It's fast and its fun.

        • My cousin by marriage is pit crew

          he's done drag, NASCAR, and I don't know what all.

          P.S. He was born and raised in Brooklyn to Eyetalian Noo Yawk natives.

  3. Probably Okay

    I understand why AmberPaw is concerned about this. It seems to me that, with appropriate safeguards on recusal and screening, this is probably ethical under the Rules of Professional Conduct.

    Rule 1.11(a) forbids lawyers from representing private clients "in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee," but the government agency (here, the Court) can waive this rule.

    Under Rule 1.11(c)(1), a government lawyer can't participate in a matter in which he "participated personally and substantially while in private practice," but these clerks are new lawyers who won't face a problem under this rule.

    Under Rule 1.11(c)(2), a government lawyer can't negotiate for employment with a law firm that is representing a party in a matter in which the government lawyer is participating personally and substantially. But there is an exception under Rule 1.11(c)(2) and 1.12(b) that permits a law clerk to seek employment in those circumstances if he notifies the judge that he is doing so.

    The comments to the rule also suggest that there is no real problem here. Comment 5, for example, notes that a lawyer can receive a salary from a private employer as long as the salary is not related in any way to the matter in which the lawyer is disqualified on account of his or her public service. On the other hand, comment 2 suggests that there may be statutes out there that would apply to this situation even if Rule 1.11 itself does not pose a bar. AmberPaw, any thoughts on that?

    Granted, these rules are not entirely on point, because here the law clerks have already secured employment with the private firms, and here the public and private employments are simultaneous rather than successive. But the rules seem to suggest that the court can waive any conflict issue, which is what the CJAM seems to want to do here.

    TedF

  4. There may be ways to make this ethical...

    ...but my objection is in principle to the outsourcing of paying state employees.  Employees of the state should be paid by the state - period.

    • Not all state employees get paid by the state

      See above - I cited an example of assistant district attorneys getting paid by firms. It's usually a 3-6 month stint.

  5. If it's just a fiscal issue...

    Why not just have the participating firms pay into a pool, from which clerks would be paid? Why have them pay specific individuals and do the hiring, as well?

    And isn't there vulnerability in the system already because clerks could show favor to a law firm if they are looking to line up a job with them when they finish with the clerkship?

    • Recusal

      And isn't there vulnerability in the system already because clerks could show favor to a law firm if they are looking to line up a job with them when they finish with the clerkship?

      In such a situation the clerk is ethically bound to recuse him/herself.

      • There is neither over sight nor uniformity in recusal in this hypocritical proposal

        Nor do most judges recuse themselves even when, to the concerned attorney, there is a clear conflict.  Sad to say.

        The roots of this problem actually go back to the Romney administration when the budget of the judicial branch was slashed by 20% below foundation, and the court system was told to make it up by squeezing the poor, and they would get to keep 20% of the amount they squeezed each year that was greater then the prior year.

        This synical ploy is probably unconstitutional; I was the only one I saw even writing letters about it.

        The euphemistic term for funding the courts on the backs of the poor is "retained revenue".

        As it is, our "indigent court fee" is 3x higher then the next state, and Wisconsin held using indigent court fees to balance court budgets to be unconstitutional years ago.

        Our judicial branch is treated more like an agency, than an equal branch of government and its deterioration is accelerating in my opinion.

  6. Love It!

    But why stop with law clerks? The big salaries are the judges.  

    • Already - what do retired judges do [see below]

      1.  Become "of counsel" with big money white shoe law firms.

      2.  Open mediation firms whose clients are [drum roll] big money shite shoe law firms.

      3.  Open mediation firms for all comers as long as they have $$$$$$$$$.

  7. Ooops - #2 above should be $quot;white shoe$quot; again.

    Just no time today for proofing but still - oops.

  8. Bottom Line

    The issue is simply do we want to have at least and arms length separation between paid employees and an independent judiciary. I think the separation is needed to up hold the faith we put into the system. Having the perception that you pay to play and thus the rules of the game could be slanted in an employers favor is to high a risk to pay.

    Look at it this way what if the scandal occurs and a clerk slants a case in one sides favor, and that clerk is on the payroll of that law firm. Do you want the fall out from a lose in faith in our courts. Just look at the state of Government, Local, State or Federal in most cases less then 30% of the population believes in any aspect of government. Don't take my word for it just sit here for 6 Months and read BMG it should be very clear. Why risk the same result on the judicial branch which maybe only percentage points above the fray but to risk total lose in faith in all three branches. Well I would think the results would be revolutionary in nature.  

    No I do think so there are too many risks associated with this idea and the biggest one is Society loses faith in the last aspect of Government.

    As Usual Just my Opinion

  9. Thanks David - but the SJC already relies on $quot;free$quot; interns and law clerks

    In April,  I was told by an asst. clerk at the SJC [retiring soon she tells me] that a certain pending case had not been updated on its docket or filing as "we cannot do our filing until we get our summer interns; our staff has been reduced so much."  

    As to whether the CJAM's "don't ask-don't tell" privately paid law clerk proposal is only trial court law clerks, or reflects an ongoing program put quietly in place in the SJC, sort of a pilot program from the year the SJC's budget was cut $800,000.00 following the order by the SJC to to sell  Finneran's furniture to enforce "clean elections", is unclear.  It is my opinion that the SJC prior to that time, and the SJC after that budget-cut have been very different in their culture and behavior.

    As a practitioner before the SJC [yes I have a case pending there, I often do] I am not sure just how far to push "investigative journalism".

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