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The Texas Supreme Court has prohibited its law clerks from accepting bonuses, reimbursement for bar exam fees or moving expenses from law firms during their clerkships. The action came in response to criticism about the ethical and legal issues involved in clerks’ accepting money from firms who appear before the court. Last fall, Austin-based Travis County Prosecutor Ken Oden began looking at whether the practice violated the Texas bribery statute. The Texas law states that a public servant has committed an offense if “he solicits, accepts or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.” William Willis, executive assistant to the court, said of the policy adopted on Jan. 31, “The court was trying — probably unsuccessfully — to satisfy some of the criticism. So the court is positioning itself to be in line with the federal court practice.” While clerks may not accept benefits during their state employment, the new policy is less clear on whether they can accept benefits before or after their clerkships, as the federal courts permit. That could hinge on Oden’s determination. The policy says that such benefits may be received before or after the employment “to the extent permitted by law.” CRITICS NOT SILENCED But an Austin court watchdog organization, Texans for Public Justice, has been critical of the policy and remains so. Cris Feldman, a staff attorney for the group, said that under the old code of conduct, clerks were banned from assisting in any case involving future employers — which, by his reckoning, could have been 402 times in the past eight years. The new policy distinguishes between a clerk who has accepted a job from a law firm before starting and one who accepts it during the clerkship. In the former instance, a justice “may make appropriate adjustments” in the work, the policy says, while in the latter, the clerk is banned from the case. “The court, in rewriting the rules, had the opportunity to come into the mainstream of judicial ethics and missed the boat,” Feldman said. Willis countered that despite the language differences in the rule, “It means the same thing.” The new policy is most likely to affect only one top firm — Houston-based Baker Botts. In a survey of five firms that typically recruit from the court, it was the only one that had a policy of giving bonuses — of more than $35,000 — to clerks during their clerkships. The court has asked legislators to change the law to permit the bonuses, so the court can compete for top law graduates who receive high first-year salaries if they join firms. Those salaries have resulted in a significant drop in clerkship applications so far this year.

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