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Deferred Associates Face Many Conditions in Working as Court Clerks

Tuesday, June 16, 2009

The Massachusetts state court system found itself with an interesting dilemma recently. Deferred law firm associates were calling and writing, asking for jobs to satisfy their firm's requirement (or request) that they obtain work in the public sector during their deferral period. The trial court system needs the bodies, but the judges wondered about the appropriateness of employing would-be associates with ties to firms whose lawyers regularly appear before them.

So they asked the state's Committee of Judicial Ethics for an advisory opinion, and on Tuesday, the committee ruled that using deferred associates as clerks is OK--provided all parties agree to meet a pile of conditions meant to basically hide the arrangement from everyone involved. (Hat tip: The Legal Profession blog.)

"These are new waters for everybody," says Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society, a nonpartisan organization that promotes judicial independence. Massachusetts is the second state to raise the issue, Gray says, and the AJS has yet to take an official stance on it. (New York was the first, naturally, and its Advisory Committee on Judicial Ethics also gave the program the go-ahead.)

The first condition the Massachusetts ethics body set is that a third party, the Boston-based Flaschner Judicial Institute, would regulate the application process and review candidate resumes. But even Flaschner, which is devoted to preserving judicial professionalism and the continued education of judges, would not know which law firm the associate was (in theory) going to work for. Nor would the judge that would eventually hire and work with that associate.

The associate would be prohibited from mentioning the firm to anyone in the courthouse or referring to it on his or her Facebook page or Twitter account, according to the advisory opinion. If a firm matter comes before the judge for whom the associate is clerking, the associate must disclose that he or she has a conflict and that the case must be assigned to another clerk. Here's the catch: The associate is not allowed to divulge the nature of the conflict, only the existence of one. Seth Anderson, the executive director of AJS, wonders whether this might be a giveaway when we reached him this afternoon. (Interestingly, AJS, which has offices in Des Moines and Chicago, has received applications from deferred associates as well.)

Finally, the law firms would not be allowed to publicize the fact that their associates are working as court clerks in any promotional material, the opinion says.

That's a lot of conditions, isn't it? In any case, the committees in New York and Massachusetts have both concluded that the clerkships present a good opportunity for both the associates and the cash-strapped court systems.

But the program is far from a done deal in Massachusetts, says Robert Brink, the executive vice-president of Flaschner, the would-be clearinghouse for the candidates. The state judicial branch is seeking a second advisory opinion from the state ethics commission, a spokeswoman says.

"It's certainly not something that's up and running yet," he says.

We contacted a few of the big Boston firms to see if any of their associates were interested in clerking in state courts. Ropes & Gray has two associates who plan to clerk in New York but none in Massachusetts, a spokesman says. We haven't heard from others yet. We'll update you when we do.

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