Serving as a judicial law clerk is a coveted and prestigious position that few are fortunate enough to experience, often at the launch of their professional career immediately after law school and bar passage.
While bridging the gap between education and career, judicial clerkships offer challenging engagement with a vast array of legal issues and the opportunity for direct participation in the judicial process. However, whether taking on the responsibilities of a trial law clerk or an appellate law clerk, there are specific professional and ethical expectations of which law clerks should be aware.
Many jurisdictions and courts have guidelines and mandates for law clerks that can be distinct from, yet often related to, codes of judicial conduct and rules of professional responsibility.
Moreover, it is not uncommon for judicial law clerks to be viewed as an extension of the jurist for whom they serve. Therefore, the judiciary’s requirements of integrity, independence, and impartiality should also be observed by law clerks.
The Federal Judicial Center lays out the “5 Cs” as an easy way to remember the categories of a law clerk’s ethical obligations in its book “Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks.”
I’ll review these categories in this post and apply them to some hypothetical situations that law clerks may encounter. The Five Cs are:
- Confidentiality
- Conflicts of Interest
- Caution (political activities, online activities, and gifts)
- Community (outside professional and social activities)
- Career
1. Confidentiality
Judicial law clerks have access to confidential information that goes beyond the case files before the court. Case information outside of the public record (be it online resources or publicly accessible documents comprising the case file) as well as the processes and procedures used by the court and judge in prior, pending, or forthcoming cases must all remain strictly confidential and may not be used for personal benefit or gain.
Confidential information about a case can include information beyond the case itself, such as commentary on the merits of the case, analysis or commentary about the case originating from the judge or the clerk’s account, or even discussion on what elements of a matter might be drawing more attention than others.
Clerks have a limited allowance on what information they may share. Publicly accessible information about the case or the court is okay, as well as offering an explanation of court procedures in general terms. For example, a law clerk may discuss the overall steps of the appellate process while not discussing the timing or assignment of a particular case.
For federal judicial employees, including law clerks, Canon 3(D) of the Code of Conduct for Judicial Employees sets the minimum standard for the duty of confidentiality. Specific jurisdictions, courts, and judges may expand on the requirements and the designations of what is confidential.
Such confidentiality statements provide examples of inadvertent disclosures to avoid and when confidential information is authorized to be disclosed. For example, see the Confidentiality Statement from the U.S. District Court for the Northern District of Illinois.
These confidentiality obligations do not end when the clerkship concludes or a case is complete. The restrictions follow the clerk to their subsequent employment (we will discuss this later).
2. Conflicts of Interest
Just as an attorney evaluates a potential client during intake for any conflicts of interest, a law clerk must remain prudent to avoid finding themselves in conflict with a specific case, subject matter, or party.
If a clerk discovers an actual or perceived conflict, they must promptly inform their judge or supervisor to take further steps, if and as necessary.
The federal Code of Conduct for Judicial Employees defines such conflicts to include a broad, impartiality standard (Canon 3(F)(1)) and specific enumerated restrictions (Canon 3(F)(2a)). The broad examination of a conflict occurs when a clerk, their spouse/partner, or a close relative, might be so personally or financially affected by a matter that a reasonable person would question their impartiality.
Additional conflicts of interest for judicial law clerks can include:
- Bias – The law clerk has personal knowledge of case facts or a party in a case or may have some prejudice toward a party in a case.
- Current Relationships – The law clerk or their relatives (within the third degree) are a party, a lawyer, or likely to be a material witness, or have an interest that could be substantially affected by the matter’s outcome.
- Prior Relationships – The law clerk served as a lawyer, or their prior organization or firm did, or otherwise had a relationship to a case (e.g., a witness in a case). This conflict may be relieved if the law clerk did not work on the matter, did not access confidential information relating to the matter, and did not practice in the same office as the lawyer who did work on the matter.
- Financial Interests – The law clerk, their significant other, or minor child who lives in their household has a financial interest in the subject matter or a party.
However, assessing what constitutes a “relationship” or “friendship” isn’t always easy. Several ethical opinions have examined this conundrum for lawyers and judges and can be informative for law clerks too.
“Because friendships exist in a wide variety of contexts, friendships need to be examined carefully,” says ABA Opinion 494 (Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel).
ABA Opinion 488 (Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure) “identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships.”
The Opinion goes on to say that “judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties.” Whether disclosure or recusal is required when a party, lawyer, or witness is a friend or shares a close personal relationship depends on the circumstances, the Opinion says.
Therefore, even if a law clerk believes there is no actual bias at issue, a friendship or close personal relationship should be disclosed to their judge or supervisor for further consideration.
3. Caution
Just like judges, law clerks are people too, with personal lives outside the courthouse. Nevertheless, their role within the judiciary demands they remain cautious in their actions, even when minimal or passive. Three particular areas of caution for law clerks to consider at all times are political activities, online activities, and gifts.
Political Activities
Canon 5 of the federal Code of Conduct for Judicial Employees covers what political activities are inappropriate for a judicial law clerk. This includes partisan and nonpartisan engagement. Overall, the integrity and independence of the courts must be maintained without association with political opinions or candidates.
While law clerks can register with a political party and vote in elections, they must limit their political opinions to private conversations with family and close friends. Law clerks cannot run for public office or campaign for others. Disseminating their views to a broader audience, whether actively in a forum or passively through a yard sign or bumper sticker, is not allowed.
Political activities and financial contributions by their immediate family are possible only if the law clerk can disassociate themselves from the act. For example, if a spouse wants to donate money to a campaign or related cause, they should only do so from an account segregated from the law clerk. (See more at the federal Judicial Conference’s Committee on Codes of Conduct Advisory Opinion No. 92: Political Activities Guidelines for Judicial Employee.)
Online Activities
Many law clerks have an online presence that they have built over many years. While much of what was posted in the past cannot be undone, clerks must be diligent in upholding their ethical obligations to the court in their online activities.
Some of these obligations relate directly to the duties we have discussed, such as not revealing confidential case or court information. And law clerks must consider how their actions online may impact the dignity of the court and its impartiality. Even when the audience is limited (e.g., sharing a Facebook post with friends instead of the public), it takes little effort for that inner circle to share it more broadly.
When in doubt, use the front-page test: before posting anything online, law clerks should consider if they would be comfortable with it being a cover story. If there is any hesitation, better to err on the side of caution and refrain.
Gifts
Be it wrapped with a bow or an invitation to an event, public officials have always struggled with what is acceptable when receiving a gift. The general rule is that no judicial employees (including law clerks) should solicit or accept a gift from anyone whose interests may be impacted by work done by the court. (See Canon 4(C).) Also, there are federal and state laws that require refraining from soliciting or accepting gifts and call for reporting gifts when required.
Exceptions to this gift ban may be certain items of de minimis monetary value (e.g., a coffee mug for speaking at a law school event) or when the value received is within the ordinary social hospitality of a job-related function (e.g., food during a bar association luncheon that they were invited to at no cost).
4. Community
Like the Caution category, Community examines the ethical issues raised when activities outside of employment relate to a clerk’s job or the legal or judicial system. For example, in professional, social, or civic organizations.
Accepting a job as a judicial law clerk does not mean clerks are limited to all work and no play. They may participate in recreational, cultural, religious, charitable, and even for-profit business and financial activities so long as they do not adversely impact or reflect on the operation and dignity of the court or their job. For example, clerks may not utilize their position to gain business, clients, or raise money. When in doubt, they should consult their judge or supervisor for direction.
Also, there may be times when a neighbor, family member, or volunteer organization asks a clerk for legal advice. While this may seem harmless and can be tempting, it is risky, as the legal advice or work may involve or be an element of an eventual appearance in court. It is most prudent for a clerk to abstain, due to their employment.
In addition, the person requesting advice may ask for help with finding able counsel. While clerks likely know excellent attorneys to refer them to, a better practice would be to refer them to a lawyer directory or bar association member list so as not to single out a particular attorney or firm as appearing favored by the court.
5. Career
Judicial law clerks make for attractive targets for law firms, both large and small, that are looking to onboard rising associates, especially for relevant appellate work. By the nature of the position, judges know that term law clerks are limited in employment before the paycheck and perks of private practice entice them away, often after a year or two. However, clerks exploring other professional opportunities must still observe their ethical obligations and adherence to court rules.
New conflicts of interest may develop out of the job options themselves, such as when a clerk is interviewing with a law firm that is representing a party before the court. In some jurisdictions, this may be unavoidable and even expected, such as in rural settings with fewer legal service providers.
It is important that the clerk alerts the judge and is transparent about their job prospects. This will help the judge protect the integrity of the court and monitor the docket for conflicts, including excluding a clerk’s participation if needed.
The same diligence must be practiced by the clerk in their future jobs so as not to create a conflict of interest related to their work while a clerk. Use or disclosure of confidential or sensitive information obtained exclusively from work as a clerk would be fundamentally unfair.
Lessons learned from a clerkship may certainly make them a better lawyer, but the advantage from superior inside knowledge of the opposing side’s arguments and legal strategy or a judge’s analysis and opinions not of record goes against the interests of justice. Similarly, a judge’s recusal due to a former clerk’s involvement in a case requires evaluation. (See, e.g., Maryland Judicial Ethics Opinion 2017-21, A Judge’s Disclosure Obligation Regarding Former Law Clerks.)
Potential employers will likely request writing samples and interview a clerk about their experience as a clerk. But, as discussed above, the operational processes, work product, and even the timing of the court are confidential.
Clerks, however, should be able to speak generally about their contributions as law clerks without examining specific cases or legal issues and confirm what information is and is not fair game in the interviews with their judge ahead of time.
Any writing done within the scope of the clerkship should be approved by a judge or supervisor before being shared with a potential employer, or anyone outside their immediate working relationship in the court for that matter.
Lastly, clerks must carefully evaluate any monetary benefits they might be receiving as part of an interview process. For example, reasonable reimbursements for travel expenses or meals may be acceptable, while an invitation to experience the “firm culture” at a ski retreat would have to be turned down while still employed as a clerk.
Ensuring the integrity and independence of courts
The role of judges and other court employees engenders public confidence in the judiciary for matters involving life, liberty, and property to be decided by a fair and impartial legal system. Judicial law clerks share in this responsibility even though they mostly work outside the public’s view.
Laws regulate behavior from the outside in, while ethics rules regulate behavior from the inside out by embracing norms, values, habits, attitudes, and beliefs. The Five C’s will help guide current and future judicial law clerks, clarifying their ethical obligations when potential conflicts arise. Observation of these high standards of conduct ensures the integrity and independence of the courts.
Want to test your knowledge? Take our Ethics Quiz for Judicial Law Clerks
Resources:
- Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks, 4th Ed., 2013.
- Guide to Judiciary Policy, Code of Conduct for Judicial Employees, last revised March 21, 2022.
- Guide to Judiciary Policy, Published Advisory Opinions, last revised November 17, 2022.
- Resources for New Law Clerks (including policies and procedures), U.S. Dist. Ct., N.D.IL.
- ABA Model Code of Judicial Conduct
- Illinois Code of Judicial Conduct (2023)
Laws, rules, regulations, and opinions vary by jurisdiction. The information provided in this post does not, and is not intended to, constitute legal advice; instead, all information, content and materials are for general informational purposes only.
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