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Those hoping that a Texas Ethics Commission opinion would pave the way for firms to offer special bonuses to state supreme court law clerks were disappointed on Aug. 10. The commission voted 7-1 — with Chairman Lem B. Allen casting the dissenting vote — to redraft an opinion that a staff member said had been misinterpreted. “It certainly was read to say much more than it says,” Sarah Woelk, the commission’s director of advisory opinions, said of press coverage and statements about a draft advisory opinion released on Aug. 3. The draft opinion was written in response to an inquiry by Lynne Liberato, hiring partner at Haynes and Boone in Houston and past president of the State Bar of Texas. Woelk said Liberato’s letter questioned whether a firm could pay a bonus to a law clerk if it paid the same amount to all new hires. The letter also questioned whether a firm could pay “lateral hiring bonuses” if the amount of a bonus was unrelated to the fact that the individual had been a law clerk, she said. The opinion said a bonus offered under the circumstances described in the letter would be permissible under an exception in �36.10 of the Penal Code for a business relationship independent of the official status of the recipient. Karen Lundquist, the commission’s general counsel, says the problem is that the opinion request didn’t state benefits might be given because of a person’s official position. If a bonus is offered because a law clerk is lowly paid as a public servant, it is clearly because of the person’s official position, she says. “You can’t just put magic words on a situation,” Lundquist adds. James Maloney, a partner in Baker Botts in Houston, said in an earlier interview that his firm has paid law clerks $35,000 bonuses to offset the significant disparity in pay for first-year associates and lawyers in the public sector. Lundquist says it would be up to a jury to decide whether a bonus was paid to offset the difference between the $37,900 that the state pays judicial law clerks and the six-figure salaries offered to first-year associates at some firms. Travis County Attorney Ken Oden, who first questioned the legality of the judicial clerkship bonuses last fall, said some people might interpret the draft opinion to provide a defense to the gifts ban. Oden said he is particularly troubled when firms offer bonuses to judicial law clerks before they leave the court. “All of the time you’re supposed to be providing your public service with total independent judgment, you’re actually in some way compromising your independence because you’re betrothed to a particular entity or firm,” he said. JOBS AFFECTED? Lawyers at Vinson & Elkins, Baker Botts, Thompson & Knight, and Gibson, Dunn & Crutcher say judicial clerk bonuses have been suspended until the issue is settled. “We’re waiting for some authoritative statement,” says Martin McNamara, the partner in charge of Gibson Dunn’s Dallas office. Mike McKetta, president of Graves, Dougherty, Hearon & Moody in Austin, and Pat Lockridge, of the Austin office of McGinnis, Lockridge & Kilgore, say their firms pay lawyers who complete judicial clerkships bonuses in the same amount as other new lawyers who join the firm. Cris Feldman, staff attorney at Texans for Public Justice, a government watchdog group, told the Ethics Commission that prohibiting bonuses to law clerks places all firms on the same playing field. Firms that can afford to pay large bonuses would have the same access to attorneys who’ve worked for a court as smaller firms that can’t afford to pay bonuses, he said. Chris Griesel, rules attorney for the state supreme court, said action on the issue could affect job opportunities for all state employees, not just law clerks. If it becomes a fact issue whether a state employee can have a job interview, public servants at any level could become “radioactive” to potential future employers in the private sector, he testified. In an interview, Texas Supreme Court Chief Justice Tom Phillips says the court will be unable to compete with federal courts and courts in other states for top law school graduates if bonuses are disallowed. “We will get whoever is left over after the federal system and other states’ courts have hired,” he says. The Ethics Commission is tentatively scheduled to act on a revised opinion at its Sept. 14 meeting.

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