Two weeks ago, we phoned several organizations devoted to judicial independence and asked them to weigh in on plans in Massachusetts and New York to have deferred law firm associates work as clerks in state trial court systems. The cash-strapped court systems badly need the (free) bodies, and the associates, of course, need something to do.
But the arrangement would raise all sorts of ethical questions about whether the law firms who "donate" associates might get nicer treatment from judges who work with those clerks. So Massachusetts proposed a sort of double-blind system in which the associates wouldn't divulge their firm association to anyone, not even the judges they work for, and would have to bow out of any case their future firm was involved in -- without telling the judge the reason for their recusal.
Two weeks ago, most of the folks we talked to either hadn't heard about the arrangement or hadn't yet taken a stance on it. No one seemed particularly up in arms about it. But as the State Ethics Commission in Massachusetts prepares to review the plan, at least a few people are expressing some qualms, according to this story in The Boston Globe.
Among them: Andrew Kaufman, vice dean for academic programming at Harvard Law School and chair of the Massachusetts Bar Association's ethics program. Here's Kaufman's take via the Globe: "I would think there would not only be an issue for the judge who hired the law clerk under the Code of Judicial Ethics, but an issue for the lawyer who accepted the appointment under the rules of professional conduct for lawyers."
Uh-oh. We contacted Kaufman for follow-up, and he cautioned that he did not intend his public comments to be an official pro or con statement on the program, only that the program could present issues when taken together with the letter of ethics codes for judges and lawyers. We also contacted Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society, which hadn't taken a stance on the issues when we spoke with her two weeks ago. We haven't received an update from her yet.
Another interesting note from the Globe: The state is turning away law school grads who actually want to work as clerks because it can't afford to pay them their $47,000 starting salary right now due to a budget crunch. For the last few months, we've been hearing worries expressed by nonprofit types about how the deferred associates might displace people aiming for a career in public law. It appears to be happening in Massachusetts, if only because of state budget cuts. "It was a huge disappointment," Emilee Hoover, 29, told the Globe about the state rescinding her trial court clerkship offer -- something that has happened to two dozen lawyers in recent weeks, the paper says.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.