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Law firms’ practice of giving special bonuses to new associates who have worked as law clerks at the Texas Supreme Court has ended. But the high court’s ethics rules don’t prevent firms from paying young lawyers higher salaries because of the experience they’ve gained through their clerkships. “It can’t be illegal for the private marketplace to recognize the skills that one gains in public service,” says Texas Supreme Court Chief Justice Tom Phillips. The court adopted a new code of conduct for its clerks on Feb. 4 after a one-and-a-half-year debate over the issue. The controversy arose in the fall of 2000, when Travis County Attorney Ken Oden questioned the legality of the bonuses, which he said likely violated a provision in Chapter 36 of the Penal Code. At the time, some firms were paying bonuses as high as $35,000 to clerks who accepted offers of employment. In the 2001 session, the Legislature refused to change the Penal Code provision to make the bonuses legal. The Texas Ethics Commission said in a Dec. 14, 2001, opinion that the question of whether a particular bonus is illegal would be up to a judge or jury to decide. Oden suggested an alternative in a Jan. 30 letter to Phillips. “As long as a public servant’s compensation is paid for other employees with similar service and as long as the compensation is paid in the normal course of business in the profession (i.e., periodic payments made throughout the year to achieve an annualized salary) the agreement to pay, even the agreement to increased pay based in part on prior experience gained as a law clerk, would be presumptively legal,” Oden said in the letter. Phillips says he interprets that to mean that a clerk can’t accept a lump-sum payment from a firm after leaving the supreme court but can be paid a higher salary based on the experience gained from the clerkship. Two major firms remain undecided on the issue. “The firm’s reviewing the court’s rule and hasn’t yet developed a response to it,” says Vinson & Elkins spokesman Joe Householder. David Sterling, hiring partner at Baker Botts in Houston, says his firm also is still looking at the policy. “We haven’t decided what we’re going to do yet,” Sterling says. Under the supreme court’s rule, law clerks are barred from accepting any payment from a firm — including reimbursement for Bar exam expenses — until after they leave the court, Phillips says. ONLINE CLE DEBATE The possibility that the State Bar of Texas MCLE Committee might change the rules for online continuing legal education courses has stirred up a ruckus. In a Jan. 18 letter to online providers, MCLE Committee chairman D. Hull Youngblood Jr. outlined proposed minimum standards for the accreditation of online courses. One proposal on the list would require streaming audio or video for a course to be accredited, allowing “text only” courses to be accredited only for self-study credit. That’s unacceptable, says Michael De La Rosa, chief executive officer of cleonline.com, one of the providers that would be affected if the standard is changed. De La Rosa says many attorneys in small towns and rural areas lack access to broadband Internet service, which allows a much faster connection to the Internet than dial-up service. The faster connection is necessary to receive streaming audio or video courses, he says. “I would be unable to use that because I don’t have that speed,” says Huntsville, Texas, solo Julie Knight, who juggles her legal duties with the demands of motherhood. Knight says it would be a “burden” if she had to travel to Houston or Dallas for one-day seminars to receive CLE credit that she has been able to get through online courses. Youngblood, of Austin’s Youngblood & Associates, says the concern is premature because no rules have been published in the Texas Bar Journal, and nothing has been presented to the Bar. “We’ve just started barely the talking stage,” he says. If the technology to support streaming audio and video is not widely available, the committee won’t require it, Youngblood says. De La Rosa plans to speak against the proposal at a Feb. 28 meeting of the MCLE Committee at the offices of Winstead Sechrest & Minick in Dallas.

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