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Christmas cookies for court officials, cash for clerks, campaign contributions for court justices — such gifts from lawyers have traditionally flowed to the pockets of court officials. Now a Texas prosecutor, urged on by a public-interest organization, is examining whether “signing bonuses” that law firms give to Texas Supreme Court clerks who will work for them after the clerkships may violate the state’s penal code. Travis County Prosecutor Ken Oden says that he doesn’t plan to prosecute clerks or firms if he decides the practice is illegal, but will inform the court and the law firms. “We’ve met with representatives of the court and are in the process of doing as detailed an analysis as possible to figure out what is the best course of action,” says Oden, whose territory includes Austin, the state capital. As a result, the practice has been suspended by at least one big Texas firm. State supreme court clerks bound for Houston’s Vinson & Elkins won’t be getting the $35,000 bonus that the firm has been giving their predecessors for the past 15 years. The firm has grudgingly suspended the practice until a determination is made. At Vinson & Elkins, all future associates get a signing bonus of $8,000 paid in the fall of their third year of law school. In addition, they’re given a $2,000 graduation bonus and $2,000 upon arrival at the firm. In addition, clerks for the state supreme court are promised $35,000, payable when they start at the firm. Most other large Texas firms make similar awards, although the amounts and dates of delivery vary among firms. But in a survey of top Texas firms that recruit from the supreme court — including Baker Botts, Fulbright & Jaworski, Dallas-based Haynes and Boone and Houston-based Bracewell & Patterson — no others have suspended the practice. Texans for Public Justice, an Austin nonprofit, nonpartisan government watchdog organization, objects to firms paying any bonus. Cris Feldman, a staff attorney who focuses on the courts, points to two provisions in the Texas penal code that he says apply. A bribery statute says 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.” Another provision says, “A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant that he knows the public servant is prohibited by law from accepting.” Under supreme court policy, briefing attorneys, as the law clerks are called, are allowed to accept employment and bonuses. The 18 clerks must notify their justice if a future employer comes before the court. Then the justice will disqualify the clerks — who are permitted an unusual degree of participation in the cases the court hears — from drafting opinions, analyzing petitions, participating in conferences and answering justices’ questions. The court doesn’t keep records of these recusals. Feldman says that the bonuses may violate the law, and he’d like to see them halted. “The Texas judicial system is being tarnished by special-interest money,” he says. At a minimum, he says, there should be disclosure: “If they’re effectively policing this, they should tell the public which clerks have recused themselves from which cases.” The judiciary and the firms say that they interpret the laws differently. “I think that a strict or any reading of the law certainly reflects that there’s not an illegality,” says James Reeder, hiring partner at Houston-based Vinson & Elkins. “It’s not a benefit. It’s salary.” That, according to one plaintiffs’ attorney who has cases before the court and didn’t want to be identified, is exactly the problem. “This is payroll money,” he says. “They have the court clerks on their payroll. That is jaw-dropping.” The court doesn’t interpret the code to restrict law clerk bonuses. “It’s fair to say we’re not convinced there’s a problem,” says the Texas Supreme Court chief justice, Thomas R. Phillips. Both the court and prosecutor Oden expect the issue to be resolved this spring, in time for a legislative change if necessary. The firms, the court and the prosecutor all raise the concern that putting a stop to the practice would mean a reduction in the number of applicants seeking clerkships. “Because of the money out there, the pool we draw from is growing smaller,” says William Willis, executive assistant to the Supreme Court. The jump in associate salaries over the last year has raised first-year associates’ pay to more than three times the $37,000 that a Texas briefing attorney makes. Frederick Baron of Dallas’ Baron & Budd, the president of the Association of Trial Lawyers of America, says that even setting aside the possibility of criminal violations, the appearance of impropriety should be considered. “It should be looked at as the public perception of the practice and whether the court’s reputation is going to suffer,” he says. Feldman suggests that the proper remedy would be raising clerks’ pay. “Its ironic that a court of strict constructionists chooses to bend the penal code for their own purposes,” he says. He says another guideline indicates that the practice for the clerks might be illegal. A January 2000 opinion by the Texas Ethics Commission says that a law firm could not make severance payments, pay for moving expenses or give other benefits to lawyers leaving for a short-term attorney general program. The opinion said that this would be the case even if there were a way to segregate the lawyer from litigation against the state that is being handled by the firm. The commission based its conclusion on a provision of the bribery statute aimed at other state employees. Other state and federal courts are split on how they handle the problem. Few states have written policies on clerkship bonuses. An exception is Delaware. Supreme court clerks in that state are not permitted to augment their salaries from outside. The court permits clerks to be reimbursed for expenses tied to interviews with law firms, but the Delaware Code of Conduct for Law Clerks says that a clerk “may not accept the payment of any bonuses or moving expenses until the end of the clerkship.” In Arizona, the Supreme Court Judicial Ethics Advisory Committee issued a ruling last year that banned law firms from paying a clerk’s bar dues, a long-standing practice in the state. “This limitation is intend to avoid any appearance that the payment is related to the service as a law clerk … . It is immaterial whether the payment is made during or after the clerkship,” the committee said. New York doesn’t permit any bonuses to be paid during clerkships, although special clerkship bonuses promised beforehand and paid afterward are permitted as part of salary negotiations with the firm. Gary Spencer, a spokesman for the Administrative Office of the Courts, says that regular signing bonuses wouldn’t be allowed, although the subject hasn’t become an issue. “It just doesn’t pass the smell test,” he says. John Rossi, assistant clerk at the Court of Administration in California, says that the issue is not a big one there because the court has moved away from short-term clerkships and accepts few recent law graduates who are bound for a firm. In any case, the court requires clerks to file conflicts statements, which are open to the public for scrutiny. THE FEDERAL RULE Federal judges often restrict law clerks from interviewing and accepting positions at a firm until the end of the clerk’s term. The bonus issue resulted in a 1998 Committee on Codes of Conduct advisory opinion saying that the rules apply only to employees, so that bonuses paid before clerkships are acceptable, but payment during clerkships is not. Judges may be stricter than the blanket policy; the opinion suggests that clerks check with judges. Baker Botts hiring partner James Maloney says that his firm does this, and that’s why it hasn’t changed its policy. The firm gives clerks $35,500 plus bar costs and moving expenses at the beginning of their clerkships. “Since we do leave it to the individual judges, I take a great deal of comfort in that … . I have yet to see a clerk function on a case in which that firm was involved,” says Maloney, who has a Supreme Court practice. He says that he usually knows which clerks are destined for which firms and if they are recused from cases. But trial lawyers going up against the big firms are less informed and not as happy with the current policy. An attorney who is now before the court and is facing one of the firms that regularly recruits clerks says that he considered moving to recuse the judges whose clerks are bound for his adversary’s firms. He was unaware that there were several clerks signed up to join his adversary’s firm and doesn’t know who the clerks are or whether they recused themselves. A Texas legal ethics professor minimizes the issue. Robert Schuwerk, a professor of criminal law and professional responsibility at the University of Houston Law Center, says that firms’ rationale for giving clerkship bonuses and the intent behind the bribery statute make it unclear whether the law is being broken. From an ethical point of view, he says, the court’s recusal policy provides a “screening method that seems a likely antidote.” But Mark Kozlowski, a staff attorney for the Judicial Independence Project at the Brennan Center in New York, says that he’s aware of and concerned about the practice. “Outside money from law firms or other groups is a continuing hazard to the notion that courts should be impartial,” he says. “In any state with judicial elections rules, especially Texas, these are states that don’t need another conflict-of-interest problem.”

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