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Most major national law firms give signing bonuses to junior attorneys who once served as law clerks to state or federal judges or justices — including justices of the Texas Supreme Court. Recently, a handful of organizations and individuals have alleged that this practice, at least as applied to the Texas high court, violates state law, and contend that a Dec. 14, 2001 advisory opinion of the Texas Ethics Commission supports their position. But a careful reading of the relevant state statutes, as well as the commission’s Opinion No. 441, demonstrates there is nothing unlawful about judicial clerkship bonuses. Every year, hundreds of recent law school graduates become judicial law clerks. Clerkships offer lawyers the exciting opportunity to study law under a federal or state judge for one to two years. As a sort of law school equivalent to medical residencies and other post-graduate work, clerkships are considered prestigious and provide highly sought-after credentials. The nation’s top legal positions in government and academia often are filled by former clerks. After clerking, many attorneys choose to practice in large, private law firms, many of which pursue former clerks with the same kind of eagerness that they show toward top graduates of prestigious law schools. The recruiting effort typically entails substantial salary and benefit packages, including a significant signing bonus. Over the past year, however, allegations have been made that Texas Supreme Court clerkship bonuses violate Texas law. These allegations do not withstand scrutiny. Signing bonuses are merely compensation for well-credentialed attorneys, not bribes or corrupt gifts. Chapter 36 of the Texas Penal Code articulates various crimes of “Bribery and Corrupt Influence.” As even Travis County Attorney Ken Oden, an opponent of clerkship bonuses, conceded in a Feb. 5, 2001, Texas Lawyer article, the code’s drafters “never intended that it apply to Supreme Court clerks.” According to sloppy press reporting and lawyering, however, clerkship bonuses arguably constitute bribery, which is prohibited under Penal Code � 36.02. There is, of course, nothing to the argument, for clerks are recused from participating in cases involving future employers. Clerkship bonuses thus fail to include, in the words of Opinion No. 441, “the necessary quid pro quo that is an element of the offense of bribery.” Nor do clerkship bonuses violate Texas gift ban laws (�� 36.08 — 36.10). These prohibitions work in tandem with the bribery statute by forbidding corrupt yet hidden manipulations of conduct by public officials, in which the quid pro quo arrangement is difficult to establish in a court of law. Thus, � 36.08(e) generally prohibits a “public servant … who is employed by or in a tribunal having judicial … authority” from “solicit[ing], accept[ing] or agree[ing] 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.” Read alone, this provision would absurdly forbid clerks from receiving Christmas gifts from family and friends who may happen to have an interest in a matter before that same court. But the Legislature intended no such absurdity, and instead crafted numerous exceptions to the gift ban. For example, it is lawful for a public servant to accept “a gift or other benefit conferred on account of … a personal, professional, or business relationship independent of the official status of the recipient” (� 36.10(a)(2)). Clerkship bonuses fall within this exception because they are paid on account of a future employment relationship. According to an informal survey of colleagues at major Texas law firms, clerkship bonuses are offered to former clerks of state and federal courts across the country — not just the Texas Supreme Court. The bonuses are paid whether or not the firms actually appeared before those courts during the clerk’s term of service, and they are given only to those who accept employment. Such payments are thus designed simply to compensate attorneys who possess special skills developed from the post-graduate-like experience of a judicial clerkship, wherever that experience may have been obtained, and not to attempt to influence corruptly a Texas official. Indeed, any such attempt would be futile in light of the recusal rules. Moreover, because they are compensation, the bonuses are also covered by another exception that allows a public servant to receive “any … benefit … for which he gives legitimate consideration in a capacity other than as a public servant” (� 36.10(a)(1)). Of course, as Opinion No. 441 explains, “[a]n offer that purported to be an offer of pay for future work but was in reality an offer to pay a state employee to perform his or her state job in a particular way would be a bribe,” but again, mandatory recusal eliminates the incentive to craft such agreements. Finally, even if both exceptions were deleted from the statute, clerkship bonuses would still be lawful, so long as the arrangements were not made until after the clerkship, for the gift ban does not apply to former public servants (see also � 1.07(a)(41)). (By contrast, the bribery statute expressly bars quid pro quo arrangements involving bribes not paid until “after … the public servant ceases to be a public servant” (� 36.02(c)).) Clerkship bonuses are thus plainly lawful; nothing in Opinion No. 441 is to the contrary. At most, the opinion raises questions about the application of the independent relationship exception, but it expresses no doubts about the legitimate consideration exception. Reasonable people can debate whether ethical problems arise out of the intermingling of campaign contributions and judicial elections; indeed, statements by detractors of clerkship bonuses indicate that it is really the election of judges, and not the salaries of their former clerks, that drives their campaign. But clerkship bonuses do not violate Texas law any more than they offend the parallel federal laws that apply to federal law clerks whose bonuses have yet to come under such feverish attack. It is therefore difficult to see what good can be achieved by defaming, through baseless and insulting threats of criminal liability, this long-established practice. James C. Ho practices law in Washington, D.C. He served as a law clerk at the 5th U.S. Circuit Court of Appeals from 1999-2000.

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