Should a Law Clerk’s Possible Leak to Press Be Reported?

By Attorney Professionalism Forum

Should a Law Clerk’s Possible Leak to Press Be Reported?

8.2.2022

By Attorney Professionalism Forum

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To the Forum:

I recently graduated from law school and took the bar exam and am working in the pool of clerks. The judges and their assigned clerks don’t even recognize me, but I recognize them. After working late one night, I went to an Italian restaurant near the courthouse. There, I saw one of the clerks handing an envelope to another person, who I did not know, but seemed familiar. Later, I saw his judge pick him up in his car outside the restaurant.

The next day, I saw an article on the front page of the newspaper about a controversial case currently sub judice in our court, reporting on “rumors” as to how the court was expected to rule. The author of the story appeared on the local news program and is a well-known local journalist. The author looked very similar to the person the clerk had met, but I am not certain it was the same individual. When asked by the interviewers how they had heard these rumors, the author did not give a direct answer, but implied that they have a confidential source. This is the first time any such rumors have been published and I am not sure who I should talk to about this issue.

The judge that I’d seen outside the restaurant was known throughout the courthouse to be a dissenter. I am now conflicted. Am I ethically required to report what I saw based upon mere suspicion, and do the rules apply to me if I have not yet even been admitted to practice?

Sincerely,

A. Leaker


Dear A. Leaker:

Your question implicates rules governing nonjudicial court employees, rules governing judicial conduct under the New York Code, Rules and Regulations, and rules governing attorney ethics. These ethical rules were intended as a form of self-governance within the legal system; in the context of the judiciary, the rules enshrine the sanctity of the judicial process. These rules do not simply apply to attorneys representing parties in court, but to the entire courthouse – including administrators, clerks, attorneys, and judges. As a community of professionals, we must preserve the integrity of the system and the judicial process.

To be clear, you should report this matter because, if true, such conduct may be considered a violation of many ethical rules, but most importantly, it is prejudicial to the deliberative process that is the cornerstone of the entire judicial system.[1]

Regarding your own conduct, there are certain rules that can and do apply to you even though you have not yet been admitted to practice; however, which rules apply depend on your role and duties. Defining the role is often difficult because of the different nomenclature used to characterize different clerical roles. Commentators often utilize terms such as “law secretary,” “court attorney,” “elbow clerk” (a vivid term used more in other states), or “law clerk” to describe an attorney or recent law graduate who works directly with an individual judge.

Reporting

Regardless of the nomenclature, under the New York Rules of Professional Conduct (RPC) 8.3(a), a lawyer – or in your case one pending admission – “who knows that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.” While RPC 8.3(a) refers to a lawyer “who knows” that a violation has occurred, all lawyers know that the definition of the term “knows” can be interpreted in many different ways and qualified in many different ways. Do not over analyze this requirement. Sometimes you know it when you see it; here, you’ve seen it. You not only have a duty as a clerk, but as an attorney, even though not yet admitted, to share your knowledge as to how this draft opinion may have been leaked.

Therefore, even though you cannot be completely certain, if you strongly believe that another lawyer has committed a violation of the RPC that raises a substantial question as to his honesty, trustworthiness, or fitness as a lawyer, then you should report it.

Comment 3 to RPC 8.3 notes that a lawyer is not necessarily obliged to report every violation of the rules. The rule limits the reporting obligation to “those offenses that a self-regulating profession must vigorously endeavor to prevent.” Comment 3 also notes that “substantial refers to the seriousness of the possible offenses and not the quantum of evidence of which the lawyer is aware.” In your situation, you do not have to be concerned with the quantum of evidence that you are aware of, but instead that the potential violation does indeed raise a substantial question to the lawyer’s honesty, trustworthiness, and fitness as a lawyer, since the suspected violation, if true, shakes the foundation of the judicial process to its core by disrupting the deliberative process.

Suspect Violation

Now, turning to the actions of the clerk, based upon your observations, it appears that the clerk has revealed confidential information in a case currently sub judice and has violated rules governing the conduct of nonjudicial court employees, judicial conduct, and the attorney rules of ethics. While there are many different potential reasons for the clerk’s actions, we will analyze this from the potential motivations of personal gain and political activism.

Pool clerks and judges’ assigned clerks are subject to the same rules governing conduct of nonjudicial court employees under 22 N.Y.C.R.R. Part 50. Specifically, under 50.1(II)(D), court employees “shall not disclose any confidential information received in the course of their official duties, except as required in the performance of such duties, nor use such information for personal gain or advantage.”

A draft of a judicial opinion (especially in a controversial case) would be considered confidential information “received in the course of the clerk’s official duties” because of the role draft opinions play in the deliberative process. Judges understand that drafting without the threat of public scrutiny or intervention prior to publication is a critical part of that deliberative process. Sharing drafts undermines the process and compromises judicial integrity and objectivity. This is but one argument against premature public disclosure.

“Confidential information” is not a clearly defined phrase, but it is nonetheless evident that this draft opinion was confidential, as until an opinion is released, it is, ipso facto, not intended for public dissemination, ergo “confidential.” If the clerk did disseminate this draft opinion to the media, such action would constitute a violation of 50.1(II)(D).

Next, if the clerk intentionally disseminated this draft opinion to the media, further ethical rules may be implicated. Personal gain or political activism could have been a motivating factor behind the disclosure due to the controversial nature of the case. If the clerk did so for personal gain – whether a monetary gain or other form – the clerk would be in violation of 50.1(II)(D).

Political

Assuming that the clerk did disseminate the draft, if the clerk’s intentions were political in nature, the clerk violated 50.1.(III)(B), which states that court employees shall not engage in political activity during scheduled work hours or at the workplace. This is another rule that you should not overanalyze. While lawyers could argue the nuances of “scheduled work hours” and “at the workplace,” here, the intent of the rule is that court employees, in their capacity as such, should not engage in political activity. Here, the clerk was virtually on the courthouse steps, handing what we presume (for sake of this analysis) to be a draft judicial opinion to a journalist. While we cannot know for certain whether this action was political activity at the time, if it was, it was political activity on the courthouse steps and was directly related to the clerk’s role as a clerk – a violation of 50.1(II)(B).

Generally, clerks are allowed to participate in any kind of political activity that is not specifically prohibited by 50.2(C), so long as they do not implicate their judges in their politics.[2] Therefore, while a law clerk cannot conduct political activity in the courthouse or chambers during work hours, he or she can circulate petitions for candidates for office, accept a volunteer position in a political campaign,[3] act as a political party member, and solicit signatures on nominating petitions for political candidates.[4] While law clerks are not permitted to hold any elective office in a political organization,[5] they can hold an appointive office in a political organization.

Law clerks are also subject to certain sections of the rules governing judicial conduct,[6] since they are considered personal appointees of judges. It is likely that the clerk violated both 50.5 and 100.3(B)(8). While you, as a clerk in the pool, are not considered a personal appointee of a judge, a clerk for a judge is considered a personal appointee and may not engage in political activities, as set forth in 100.3(B)(8) and 50.5.

Under 100.3(B)(8), judges “shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.” Further, a judge “shall require similar abstention on the part of court personnel subject to the judge’s direction and control.” Therefore, clerks are not permitted to comment on pending or impending proceedings in any court – and especially cases and decisions that are sub judice in their own court.

The Court of Appeals has accepted the Judicial Conduct Commission’s recommendation in some cases that judges be removed from judicial office when their conduct represented “a callous disregard for the applicable ethical standards.”[7] Such determinations are very fact intensive; however, for example, in In re Maney, the judge continued his intense political involvement even after his election to judicial office. The Judicial Conduct Commission and Court of Appeals found that such conduct demonstrated his unwillingness to forgo political activity and reflected an insensitivity to his ethical obligations as a judge. Further, the Court of Appeals rejected the judge’s attempts to justify his partisan involvement and views blatant political actions as flagrant disregards of the ethical restraints imposed by the rules governing judicial conduct.

While a law clerk may be free to participate in political activity, it is evident that the situation presented falls outside of the scope of the permissible activity under the rules governing judicial conduct and rules for nonjudicial court employees, since the clerk’s perceived act of providing a draft of the decision to the media – whether authorized by the judge or not – implicates the judge in his politics.

Prejudicial to the Administration of Justice

Under the RPC, the clerk has implicated RPC 8.4(d), which requires that a lawyer shall not “engage in conduct that is prejudicial to the administration of justice” and 8.4(f) by “knowingly assist[ing] a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” While one cannot be certain whether the clerk was directed to leak the draft opinion or did so independently, its release is prejudicial to the administration of justice, as it compromises and disrupts the deliberative process, the most essential function of the court. The sanctity of the deliberative process is the cornerstone of the judicial system and such a violation can lead to a host of problems. Because the decision is not yet final, political activists could attempt to influence the judges deciding the case or judges could feel pressured to rule a certain way because of outside factors and not the law.

Conclusion

In conclusion, lawyers must balance the letter and spirit of the law while trusting their instincts. The balance here mandates reporting because the clerk’s actions, on their face, run afoul of both the letter and spirit of the various ethical rules that govern court employees, judges, and lawyer. We conclude that this potential violation must be reported.[8]

Sincerely,

The Forum by

Jean-Claude Mazzola

([email protected])

Hanoch Sheps

([email protected])

Kevin Kelly

([email protected])

[1] While we are solely focused on the ethical issues that arise in this situation, there are potential privacy and criminal implications for the clerk’s disclosure. Attorney’s ethics rules do not specifically direct attorneys to report crimes committed by other attorneys; it is our ethical duty as individuals and as members of the community at large – not lawyers –  that compels us to report crimes committed whenever we see them.

[2] When a clerk engages in political activity, a judge must instruct his or her law clerk not to create the impression that the judge is engaged in the political activities (see Opinion 12-71 citing Opinions 07-11; 90-102 [Vol. VII]) and should advise that political activities are not permitted in the courthouse or during the law clerk’s working hours (see Opinions 07-11; 90-102 [Vol. VII]).

[3] N.Y. Jud. Adv. Op. 93-36

[4] N.Y. Jud. Adv. Op. 90-85

[5] 22 N.Y.C.R.R. 100.5(C)(1)

[6] 22 N.Y.C.R.R. Part 100

[7] In re Maney, 70 NY2d 27, 30-31 (1987) citing Rosenthal v. Harwood, 35 NY2d 469 (1974)

[8] The Advisory Committee on Judicial Ethics implores law clerks with any questions to contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50, for guidance on how Part 50 applies to his/her particular circumstances. (Contact: ETHICS HELPLINE: 1-888-28ETHIC.)


QUESTION FOR THE NEXT FORUM

I am a shareholder in Newtide Corporation and have recently encountered an issue with regard to the company’s general counsel, whom I will refer to as Ms. Weaver. In addition to serving as the company’s general counsel, Ms. Weaver has also represented me individually in matters unrelated to Newtide. A few months ago I discovered that the majority managers of Newtide were stealing funds from the corporation for their own personal use. I reached out to Ms. Weaver to seek advice as to an appropriate resolution for the shareholders. We were never able to resolve the issue and ended up at an arbitration hearing to litigate the issue. The other shareholders and I sued the majority managers derivatively and obtained separate litigation counsel to represent our interests. The majority managers also retained separate litigation counsel to represent them at the hearing.

During the arbitration hearing I learned that Ms. Weaver had been blind copying the majority members and managers of the company on communications between me and her where I sought counsel on how to resolve the issue. I also learned that she had produced private email communications between me and her to counsel representing the majority managers for use at the hearing. I never gave Ms. Weaver my consent to waive privilege or a conflict waiver and was very upset to learn that communications that I had thought were confidential attorney client communications were divulged to my adversary.

Are Ms. Weaver’s actions ethical? Do I have any recourse to deal with her conduct assuming it is improper?

Sincerely,

Carla Conflicted

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