The downward spiral of the economy, not surprisingly, has adversely affected law firms. It seems that each day we read stories in the Law Journal about large, prestigious firms laying off lawyers or furloughing recently hired associates. Other firms plan to go forward with the offers of employment they made, but are encouraging the would-be associates to find pro bono work as they are concerned they do not have enough work to keep them gainfully occupied. An increasing number of firms have announced that they will defer for a year the employment of the associates scheduled to start work in 2009 and pay them a stipend that is considerably less than the salary they otherwise would have received. Just last week, another prominent firm announced that it would be deferring the start date of about 60 percent of the new associate class of 2009. I understand that this firm, too, will be paying a stipend to the deferred attorneys.
In short, we’ve read terrible news for these fledgling lawyers; apart from the financial pain they will endure until they actually are hired in the late summer or early fall of 2010 (if, of course, the firms’ prospects have improved sufficiently by then), their promising careers have been put on hold. The news prompted me to think anew about an idea I shared with some of my colleagues nearly two years ago, an idea to which I thought at least some law firms would be receptive. But then I thought that their prosperity would be crucial to their possible receptivity to it.
Recently, however, a friend and litigation partner at a major New York City firm approached me with much the same idea and I could not fail to realize then what I should have realized earlier: the adverse impact of the financial crisis on law firms presents an opportunity for the soon-to-be lawyers who have received this terrible news, for the firms, for the court on which I’m privileged to serve and, I think, for the public.
Why not invite these new attorneys to work with the justices of this court as law clerks? They certainly have much to offer. They not only are graduates of the finest law schools in the nation, they have distinguished themselves at those law schools. They are filled with enthusiasm and eager to build on the skills and knowledge they have acquired by dint of their hard work during law school. Our new clerks could work exclusively in the chambers of one justice, then rotate after a period of time into the chambers of another justice. Or they could work in our law department alongside our staff of court attorneys for a period of time, performing the same vitally important work our attorneys do, and then work for a time in the chambers of a justice or justices. These are details that can and should be worked out by my colleagues. I would think, however, that a committee of the justices should be appointed to help ensure the best possible experience for our new clerks.
I’m confident they would be greatly enriched by the writing and analytic skills they would hone and by the knowledge, both substantive and procedural, they would acquire. The breadth of the docket of the First Department is a joy to all the justices of this court. Thanks both to New York City’s continuing stature as the financial capital of the world and to the Commercial Division of Supreme Court, the civil side of our docket regularly includes disputes that present a wide range of extraordinarily complex commercial and corporate issues, including issues involving the very esoteric financial instruments that have played such a large role in our economy’s decline. These young and immensely talented lawyers could assist us greatly in untangling the factual and legal snarls raised in so many of these cases.
Fascinating cases, however, are not the exclusive province of the Commercial Division. Interesting, novel and sophisticated issues routinely arise in matrimonial actions, actions and proceedings challenging decisions of state and local governments, personal injury actions, child abuse and neglect cases and in many other substantive areas.
In contrast to appellate courts in other jurisdictions, moreover, the Appellate Division has broad power to review the facts. In part for this reason, even though our court is an intermediate appellate court, as a practical matter we are the court of last resort for the overwhelming majority of the cases we decide.
Appeals in criminal cases constitute a substantial portion of our docket and they commonly present important and complex issues of criminal law and procedure. Questions of federal constitutional law abound, including questions relating to the scope of the newly-recognized protections afforded by the Confrontation Clause.
We certainly could use their help. We are not nearly as rich in resources as we are in intellectual stimulation. Over each of the last five years, the court has heard and decided an average of over 2,700 appeals. We also decide some 5,000 motions each year and are entrusted as well with another important responsibility: hearing and deciding disciplinary proceedings brought against attorneys. Each of the 18 justices of the court (when we are at full strength) enjoys the help of only one law clerk (who are called “law secretaries” in New York). By contrast, each of the judges of the Second Circuit has at least three and as many as four law clerks. Like the Second Circuit, our court has a staff of court attorneys. Unlike the Second Circuit, our court attorneys are responsible for preparing a bench memo for virtually every appeal. Our court attorneys are superb, but they unquestionably are overburdened with work. In recent years, despite the some 2,700 appeals we resolve each year, we have had an average of only 33 court attorneys to prepare the bench memos that are so important to our mission.
Of course, absent an appropriation by the Legislature, we could not pay our new law clerks. But the stipends that some of the firms are paying them may make it possible for many to accept our invitation. The law firms, moreover, might be willing to increase the stipend for those attorneys whose careers have been stalled if they work for this court. After all, the benefits to the firms are substantial. I’m confident that this experience will make these young attorneys far more productive contributors to the economic well being of the firms when, as we all hope, they join the firms as associates in 2010.
Ethical issues undoubtedly would arise. For example, it would be prudent to take care that a new clerk not be assigned to any appeal in which a party is represented by the law firm he or she expects to join. I’m certain, however, that our court would be mindful of possible conflicts and take appropriate steps to prevent actual conflicts and any appearance of impropriety.
That, in a nutshell, is my proposal. Needless to say, I hope we are besieged by inquiries from both law firms and these wonderfully talented young attorneys. If we are, it might even be reasonable to consider sharing the wealth with our relatively resource-rich colleagues on the federal bench in Foley Square, even though the courts over which they preside are but courts of limited jurisdiction.
James M. McGuire ( See Profile) is an associate justice of the Appellate Division, First Department.