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The Texas Supreme Court has seen a “drastic decline” in the number of applicants seeking judicial clerkships, says Texas Chief Justice Tom Phillips, who attributes the drop in part to uncertainty about the legality of clerks receiving high-dollar bonuses from the firms that hire them. Travis County, Texas, Attorney Ken Oden has questioned whether gift provisions in the penal code prohibit firms from paying the bonuses. Oden says the legal issue that’s been raised is valid not only for the Texas Supreme Court’s clerkship program but also for other state courts and a number of prosecutors’ offices and other agencies. Uncertainty over the issue has prompted one major Texas firm to suspend the $35,000 bonus it promised to two clerks, also known as briefing attorneys, working at the supreme court. “If the situation is unresolved by the day those two individuals show up to work for us next fall, we’re not going to pay it,” says James Reeder, hiring partner in Vinson & Elkins in Houston. Phillips says word about the controversy has spread across law school campuses, and the pool of potential applicants for the supreme court’s 18 clerkships has dried up. By the end of January, the court had received less than a fourth of the applications that it normally receives by this time each year, he says. Bill Willis, the court’s executive assistant, says more than 130 applications had been received by the same time four years ago. “Right now, we have just over 30,” Willis says. Willis says approximately half of this year’s applicants come from out-of-state law schools and that only three applications were submitted by University of Texas School of Law students. The deadline for applications is March 1. Phillips has told legislative budget leaders that the court may have to scrap the clerkship program and hire 18 staff attorneys. Doing that would increase the state’s costs for the clerks to almost $2 million for the two-year budget cycle, according to Phillips’ estimates. A staff attorney is paid about $68,000 per year — an amount that Phillips says needs to be increased. The annual salary for a briefing attorney is only $36,700. If the court continues the program, Phillips has recommended that the pay for a briefing attorney be increased to $45,000. The tremendous disparity in the salaries for Texas Supreme Court briefing attorneys and the pay available in the private sector is part of the problem, Phillips acknowledges. A first-year associate at a large firm can expect a six-figure salary. San Francisco-based Brobeck, Phleger & Harrison announced in January that it’s increasing the base salary for first-year associates to $135,000. With bonuses, first-year associates in the 950-attorney firm can earn as much as $170,000 in all of Brobeck’s offices, including the Dallas office. Reeder, the V&E partner, says his firm historically has paid bonuses to new associates who join the firm after clerking at state or federal courts to recognize special talents they may have acquired by working in a court. “We believe the bonus is part of their compensation, recognizing their experience and value to us,” he says. James Maloney, hiring partner in Baker Botts in Houston, says the bonuses paid to court clerks his firm hires are an effort to achieve parity for the clerks, who have been paid significantly less than their counterparts at the firm. “This whole controversy has blind-sided us,” Maloney says, but he adds that the firm has no plans to suspend the bonuses. During meetings last week with Texas House of Representatives and Senate budget-writers, Phillips suggested that one way to solve the problem is to rewrite the gifts statute to make the bonuses legal. “That’s our preference,” he told a House panel on Jan. 30. Phillips says he wants to make the state law consistent with federal law, which does not prohibit clerks from accepting bonuses after they leave a court to work for a firm. Lawmakers say they’ll think about it. State Rep. Sylvester Turner, a Houston Democrat who chairs the House Appropriations Subcommittee overseeing the judiciary, says he wants to review the statute to determine its purpose and whether changes should be made. “I’m not committing to anything right now, but I do want to look at it,” says Turner, a partner in Barnes & Turner. Cris Feldman, staff attorney at Texans for Public Justice, a nonprofit, nonpartisan government watchdog group, says the law doesn’t need to be changed. Feldman favors ending the bonuses, which, according to his research, created 402 potential conflicts of interest for clerks who worked at the supreme court between 1992 and 2000. “The law, as it stands today, provides the public with protection against private money having influence behind closed doors at the courthouse,” Feldman says. Phillips disputes Feldman’s findings regarding potential conflicts. “I would say they’re 402 off,” he says. Oden says he thinks that changing the statute may be the answer. “The reality is the statute that brings this into question is intended to prohibit hidden manipulation in the conduct of any public service,” Oden says. “The drafters of it probably never intended that it apply to supreme court clerks.” Phillips says the supreme court has adopted a new rule that prohibits briefing attorneys from accepting money from firms while they are working at the court, but they can accept bonuses after they leave. The rule was adopted on Jan. 31 and is in effect, he says.

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