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For “career” law clerks who split their time between clerking for a judge and representing clients, a Dec. 21 order from the Pennsylvania Supreme Court was the equivalent of coal in their Christmas stockings — even though they never misbehaved. Under the order, lawyers who clerk for state judges and operate private practices are barred from appearing as counsel before judges in the same division or section of the court in which their boss sits. In courts that are not formally subdivided, the law clerks are prohibited from appearing as counsel in the court itself. The high court insists that no specific incidents or complaints prompted the order. “It’s a rule to ensure the public that this is a system not based on favoritism but based on the facts and the law involved,” Chief Justice Ralph J. Cappy said in an interview. The change is expected to prompt some long-term or “career” clerks in the larger counties, Philadelphia and Allegheny, to abandon their day jobs for the more lucrative of their dual careers: the practice of law. “A bunch of us were perplexed as to why this came out now,” said a law clerk who’s worked in the Philadelphia Court of Common Pleas for many years and who asked not to be identified. “The courts have never said ‘boo’ about doing anything to law clerks before.” The high court pushed back the order’s effective date from Jan. 1 to Sept. 1 to give judges time to recruit and hire replacements for law clerks who’ve suggested they’re headed for the door. State law does not prohibit law clerks from appearing as attorneys in court except in front of the judge for whom they clerk. Cappy said the behavior at issue came to the justices’ attention during their study of family courts in Pennsylvania. “We saw that a lot of law clerks in the family division practice in the family division,” Cappy said in an interview. “They have that specialization, but they also may be appearing in the courtroom next door to their judge’s.” It’s not that impropriety existed, Cappy said. “It’s just that we as a court are very uncomfortable in that situation.” Law clerks appearing as advocates before judges who work just doors away from them might lead members of the public to an adverse conclusion, he explained. Justice Sandra Schultz Newman agreed. “There is that sense of impropriety when a clerk is clerking for one judge and appearing as a lawyer before another judge in their division,” Newman said. Aside from any appearance of impropriety, it can make the judge feel uncomfortable, Newman said. Cappy said, “We just unanimously concluded that, overall, this [order] is good for the court system. There’s no hidden agenda; no incident I would report to you if there were one. It’s just a better practice to do it this way.” The chief justice emphasized that the rule does not prohibit clerks from practicing in their area of specialization or from practicing altogether. Last year, the high court surveyed the counties’ president judges, who in turn surveyed the law clerks working at their courts. The justices found the practice at issue most prevalent in the larger counties — the Philadelphia and Allegheny courts in particular. Law clerks usually fall into two categories. Those who are hired right out of law school, clerking for two or three years to gain experience before moving on to a firm or elsewhere. “Career” clerks tend to be lifers and are more likely to practice law on the side. In Philadelphia, roughly 30 law clerks working in the trial and family divisions of the common pleas court reported in a November survey that they would be affected by the new rule. Twenty-six law clerks working for judges in the common pleas trial division reported they would be affected, said Administrative Judge James J. Fitzgerald III, supervisor of the division. Eleven of the clerks worked for commissioned judges in the criminal section and eight worked for commissioned judges in the civil section. Six clerks worked for senior judges, and another worked on Post Conviction Relief Act cases and is supervised by Judge D. Webster Keogh. Fewer than six of the 22 family court division law clerks reported they would be affected by the rule, said Family Court Administrative Judge Myrna Field. Municipal Court law clerks would not be affected because court rules already prohibit them from appearing before Municipal Court judges. Statewide, president judges surveyed by the Supreme Court responded positively: They thought a rule restricting the appearances of law clerks was a good idea, Cappy said. Philadelphia administrators don’t disagree with it, they said. “[The situation] puts people in a very funny position,” Field said. “You run the risk of having a young person who works next to you appearing before you. … This is a very isolating job, as new judges quickly learn.” One concern judges had was that barring clerks from having outside practices altogether might put the Pennsylvania judiciary at a competitive disadvantage with other jurisdictions that do permit the practice, Cappy said. “We have to have a balance here,” he said. “We don’t pay our law clerks much in Pennsylvania, and we have to attract talent.” In Philadelphia, law clerks start at $35,000 a year. The highest paid common pleas clerk earns $65,000 a year, and that’s after 15 years of service. An outside law practice allows clerks to make extra money to help support their families. “There will be individual hardship, and I’m very sorry about that,” Cappy said. The Supreme Court made the rule effective Sept. 1 to give both judges and law clerks time to plan and adjust. “We’re giving them enough time,” he said. Law clerks interviewed for this article were reluctant to provide their names for fear of bringing unwanted attention to their bosses, but, as a whole, they were grateful the court didn’t absolutely prohibit them from practicing law while they continue to clerk. Several said they understood the ethical basis for the rule, but suggested it wasn’t necessary in Philadelphia. That’s because the large number of judges and lawyers in Philadelphia reduces the likelihood that a judge would recognize a lawyer appearing before him as the clerk of a colleague, they said. “There are so many law clerks that come before the judge,” said a clerk in the criminal division. “But when he looks at them he sees just another lawyer.”

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