COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 51
Propriety of a Law Clerk to a Judge Working on a Case in Which a
Party Is Represented by the Spouses's Law Firm.
Inquiry has been made of the Committee concerning the propriety
of a judge's law clerk working on cases in which the law firm of the law
clerk's spouse represents a party. The Committee has considered this matter
and has reached the following conclusions.
Among judicial employees, law clerks are in a unique position since
their work may have direct input into a judicial decision. Even if this
is not true in all judicial chambers, the legal community perceives that
this is the case based upon the confidential and close nature of the relationship
between clerk and judge. The significance of this relationship is reflected
in certain provisions of the Code of Conduct for Judicial Employees (Employees'
Code) which are directly relevant to the inquiry. Canon 3F(2)(a)(iv)(B)
precludes a law clerk from performing official duties in any matter where
the law clerk's spouse is acting as a lawyer in the proceeding. Canon 3F(2)(a)(iii)
provides that law clerks should disqualify themselves in cases where their
spouses or minor children have a financial interest in a matter in controversy.
We have previously concluded that a partner in a law firm has a financial
interest in all matters handled by the firm. Accordingly, if the law clerk's
spouse is working on the case, or if the spouse is a partner in the firm
handling the matter, the law clerk should not participate in the case.
A more difficult question arises when the spouse is an associate
in a large firm and has no involvement in the case. Even under these circumstances,
the Committee concludes that the clerk should not be permitted to work
on any cases of the firm that employs the law clerk's spouse. To do so
violates the spirit of Canon 2 of the Employees' Code and Canon 2A of the
Code of Conduct for United States Judges in that it may erode public confidence
in the integrity and impartiality of the judiciary. The dangers real and
perceived of the exploitation of the relationship to the law firm's financial
or other advantage call for a per se rule of recusal when the firm employs
the law clerk's spouse.
In so concluding, the Committee recognizes that it has not applied
a similar blanket recusal rule for judges. For example, we have concluded
previously that a judge was not required to recuse when the judge's child
was an associate in a law firm representing a party in a case before the
court. In that instance, the child was not working on the matter and the
child's compensation was not affected by the outcome of the case.
The Committee believes that several factors justify making a distinction.
Clerks often come to clerkships directly from law school. As a rule, they
are not as steeped in or sensitive to the ethical issues which govern a
judge's conduct and are not likely to have the same level of judgment as
the more experienced judges for whom they work. Law clerks and their spouses
are more likely to find themselves in situations where attorneys or others
may advertently or inadvertently discuss matters that are pending before
the law clerk's judge. To avoid these dangers and any appearance of impropriety,
a blanket recusal policy is necessary, and from this it follows that the
recused clerk should avoid any discussion of the case with the judge, law
clerks, or others.
As a matter of historical interest, the American Bar Association
Committee on Ethics and Professional Responsibility, in Formal Opinion
340 (Sep. 23, 1975), has dealt with the relationship and obligations of
lawyers who are also husband and wife. That opinion provides:
Where both husband and wife are lawyers but they are not practicing
in association with one another, they are not necessarily prohibited from
representing different interests or from being associated with firms representing
differing interests. Like all lawyers, they must obey all disciplinary
rules; a particular situation may be inherently difficult because of the
close relationship between husband and wife. In any situation where a client
or potential client might question the loyalty of the lawyer representing
him, the situation should be fully explained to the client and the question
of acceptance or continuance of representation left to the client for decision.
The procedure suggested by ABA Opinion No. 340 is not available
in the case of a law clerk because there is no client to whom the situation
may be explained and who can then accept or reject the law clerk's continued
involvement in the matter. The Committee believes that it is inappropriate
to consult the attorneys for the parties not represented by the spouse's
law firm to explore the issue. Accordingly, the fact that there is no appropriate
way to seek remittal in the case of a law clerk is a further factor supporting
a per se rule.
Finally, the Committee notes that the disqualification of a judge
is far more disruptive to the administration of justice than the disqualification
of a law clerk. Most judges have more than one clerk, and the matter may
be transferred easily to the other clerk. If a judge has only one clerk,
an arrangement may be made to trade the services of the law clerk for the
services of a law clerk to another judge on the same bench. Accordingly,
a balancing of the relative ease of handling the consequences of recusal
against the considerations outlined herein and Canon 2 concerns for the
appearance of impropriety further supports a blanket recusal policy.
The Committee additionally observes that for many of the reasons
articulated in Advisory Opinion No. 38, a similar blanket rule does not
apply where the spouse of the judge's law clerk is employed as a lawyer
for the United States attorney, public defender or other government agency.
August 15, 1977
Revised July 10, 1998