COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 83
Law Clerks' Bonuses and Reimbursement for Relocation and Bar-Related
Expenses.
The Committee has received several inquiries about the ethical propriety
of law clerks, either before or during their clerkships, accepting bonuses
of various types or reimbursement for bar-related and relocation expenses
from the law firms for which they have agreed to work following their clerkships.
In all cases we are assured that the clerk will not participate in any
judicial decisions that involve his or her future employer.
The answers to these inquiries require application of Canon 4E of
the Code of Conduct for Judicial Employees, which provides that "a judicial
employee should not receive any salary, or any supplementation of salary,
as compensation for official government services from any source other
than the United States." They also require consideration of Canon 4B(3),
which states that judicial employees "should not solicit or accept funds
from lawyers or other persons likely to come before the judicial employee
or the court," as well as 5 U.S.C. § 7353(a), which provides:
no . . . employee of the executive, legislative, or judicial
branch shall solicit or accept anything of value from a person --
(1) seeking official action from [or] doing business with . . .
the individual's employing entity; or
(2) whose interests may be substantially affected by the performance
or nonperformance of the individual's official duties.
Some of the inquiries received by the Committee have involved "clerkship
bonuses" that the law firm pays solely because the recipient either is
serving as, or will in the future become, a law clerk for a judge. Other
inquiries concerned bonuses that are paid uniformly to all new associates
of the firm, such as a "signing bonus" paid when the offer of employment
is accepted. Some inquiries have involved bonuses paid during the clerkship,
and others concerned bonuses paid before the clerkship. We will address
each of these problems in turn.
Acceptance of Bonuses Before The Clerkship: With respect
to any type of bonus to be paid before the recipient begins work as a law
clerk, the Code of Conduct for Judicial Employees applies only to "employees
of the Judicial Branch," not to prospective employees. Similarly, 5 U.S.C.
§ 7353, which prohibits the solicitation or acceptance of "anything
of value" from someone (e.g., a law firm) "doing business with" the court,
applies only to "employees" of the judicial branch; this is also true with
respect to Canon 4B(3). Accordingly, a prospective law clerk is not prohibited
from accepting a "clerkship bonus," a "signing bonus," or other bonuses
before the beginning of the clerkship.
Acceptance Of Bonuses During The Clerkship: A law clerk may
not, during his or her service as a law clerk, accept any bonus given in
anticipation of services to be provided for the clerk's future employer.
This would violate the explicit terms of Canon 4B(3) and 4C, as well as
the prohibitions of 5 U.S.C. § 7353 (no judicial employee shall "accept
anything of value from a person . . . seeking official action from or doing
business with" the court).
Reimbursement For Bar-Related And Relocation Expenses: The
Committee sees no problem with law clerks accepting reimbursement for relocation
or bar-related expenses from a future employer whether the reimbursement
is received before or during the clerkship. Prospective judicial employees
are not covered by the Code, so the acceptance of reimbursement for relocation
or bar-related expenses before the clerk begins work for the judge would
not be prohibited. Similarly, with regard to the acceptance of such reimbursement
payments during the clerkship, the Judicial Conference Gift Regulations
under Title III of the Ethics Reform Act of 1989, § 5(i)(2), specifically
permits a judicial employee "who has obtained employment to commence after
judicial employment ends" to accept "reimbursement of relocation and bar-related
expenses customarily paid by the employer."
The Committee recognizes, of course, that some judges may prohibit
their future or present law clerks from accepting bonuses that are permissible
under this opinion. Accordingly, the present or future law clerk should
consult with his or her judge before the acceptance of any bonus or reimbursement
of expenses from the clerk's future law firm.
January 16, 1990
Revised July 10, 1998