Law firms may provide clerks for courts
Proposal raises ethical issues
The Massachusetts judiciary has withdrawn offers for dozens of highly coveted law clerk jobs as a result of expected budget cuts. Instead, the court system is considering filling the vacancies, at no cost to the state, with newly hired private lawyers whose firms have pushed back their start dates because of the bad economy.
Some legal specialists say the unusual proposal raises ethical questions, including whether firms that donate their fledgling associates might expect preferential treatment from the court system. But the plan has already cleared one hurdle, receiving approval with conditions from an ethics panel that advises the state’s highest court. The plan will now be reviewed by the State Ethics Commission.
The state court system recently wrote to at least 24 recent graduates saying that because of a systemwide hiring freeze, the judiciary had no choice but to rescind offers made in December, according to Joan Kenney, a spokeswoman for the courts. “We’re just heartbroken about the situation, both from the point of view of the law clerks as well as for selfish reasons,’’ said Superior Court Judge Carol S. Ball, who heads a committee that screens prospective law clerks and oversees them. “But times are incredibly tough, and we have to make do with what we have.’’
Robert A. Mulligan, chief justice for administration and management of the trial courts, has proposed filling vacancies with first-year associates who are waiting to begin their new jobs.
Many large firms around the country are paying such “deferred associates’’ stipends of about $60,000, less than half their regular starting salaries of about $150,000, to hold onto them until the economy improves. Some firms are recommending that the young lawyers volunteer at nonprofits or engage in public service.
But some legal specialists say an arrangement that involves a law firm paying a judicial employee raises thorny ethical questions. Firms that donate lawyers to the courts might appear to be currying favor or expect preferential treatment. “I would think there would not only be an issue for the judge who hired the law clerk under the Code of Judicial Ethics, but an issue for the lawyer who accepted the appointment under the rules of professional conduct for lawyers,’’ said Andrew L. Kaufman, vice dean for academic programming at Harvard Law School and chairman of the Massachusetts Bar Association’s ethics panel.
Clerks help judges conduct legal research and draft memoranda, typically staying in the position for a year or two. Traditionally, a clerkship has been a plum first job for recent law school graduates and an impressive credential on a resume.
Emilee Hoover, 29, who graduated from Suffolk University Law School in January with a law degree and a master’s degree in public administration, said she received a letter in March saying the state had to withdraw a tentative offer of a superior court clerkship.
“It was a huge disappointment,’’ she said yesterday. “I had always wanted to clerk. I knew that going into law school. I love reading cases. I love researching. I love to write. It just seemed like a natural fit to me.’’
Hoover got lucky, though, and recently landed a job at a small Quincy firm.
The seven trial-court departments across Massachusetts currently have 105 judicial clerks, said Kenney. About half work in Superior Court, where the most serious criminal and civil cases are tried. The trial courts plan to retain 72 clerks for a second or third year beginning in September - many are evidently staying on because of the bad economy - but will not replace the others with publicly paid employees, Kenney said.
Clerks earn $47,000 to $51,000 a year, so the smaller complement is expected to save at least $1.5 million in the fiscal year that starts July 1, Kenney said. The trial courts received $583.7 million from the Legislature in the current fiscal year, but a House and Senate conference committee is considering proposals to cut that by as much as $12 million in the next fiscal year, which begins July 1.
Ball, who worked as a Superior Court law clerk after graduating from Northeastern University School of Law in 1976, said she and her colleagues on the court share clerks assigned to a pool. She said the law clerks are indispensable, particularly for diving into time-consuming research in complex civil disputes.
“We don’t have enough hours in the day to do it ourselves,’’ Ball said.
According to the Committee on Judicial Ethics of the Supreme Judicial Court, Mulligan received several inquiries from firms about whether the new hires could perform their public service work as law clerks. The interns would get valuable experience, and the state would get a new complement of law clerks at no expense.
But because the issue raised ethical concerns, Mulligan recently asked the committee for its opinion about a special “double blind’’ arrangement.
The Flaschner Judicial Institute, which provides continuing education to state judges, would deal with the law firms that supply the interns. Judges and court officials would have no contact with the donating firms, and the firms would be instructed not to identify the interns on their websites. The interns would be barred from disclosing which firms are paying their stipends.
On June 8, the SJC’s ethics committee approved the arrangement, emphasizing that the clerks must keep the identity of their law firms secret even from the judges they are working for.
“Structuring the program in such a way that the law firms’ involvement is unknown not only to the public but also to the judges who will be ‘employing’ the volunteer interns will negate any impression that those law firms are in a special position to influence the judge,’’ said the committee’s opinion, which was reported last week by Massachusetts Lawyers Weekly.
“I give Chief Justice Mulligan credit for making the best of a very bad situation, and it appears that the double-blind method of hiring will protect the integrity of the court and eliminate appearances of impropriety,’’ said David W. White Jr., a former president of the Massachusetts Bar Association who worked as a Superior Court law clerk in the mid-1980s.
Still, the arrangement, which requires clerks to recuse themselves from participating in cases involving their firms without identifying the conflict of interest, is “really going to test the willpower of the volunteer clerks,’’ White said.
Saltzman can be reached at jsaltzman@globe.com. 
