Gavin Howe
Federal law clerks are bound by a strict code of conduct that governs their professional and personal behaviour, with a focus on maintaining the integrity and independence of the courts. This code of conduct covers confidentiality, conflicts of interest, and political activities. The code of conduct sets out standards for impartiality and confidentiality, which must be adhered to even after the clerkship ends. Law clerks must also be mindful of potential conflicts of interest, including those involving their family members, and avoid any situations that could compromise their impartiality. While law clerks can have political opinions and affiliations, they must keep them private and not engage in public displays of support or activism. These ethical considerations are essential for federal law clerks to maintain the public trust and uphold the integrity of the judicial system.
| Characteristics | Values |
|---|---|
| Political Activities | Federal law clerks must not associate themselves with political opinions or candidates. They can register with a political party and vote in elections, but they must limit their political opinions to private conversations with family and close friends. |
| Duty of Confidentiality | Federal law clerks have a duty of confidentiality that does not end when the clerkship concludes or a case is complete. The Code of Conduct for Judicial Employees sets the minimum standard, with specific jurisdictions, courts, and judges expanding on requirements. |
| Conflicts of Interest | Federal law clerks must avoid conflicts with specific cases, subject matters, or parties. This includes current and prior relationships that might affect their impartiality, such as personal knowledge of case facts or prejudice toward a party. |
| Ethical Obligations | Federal law clerks must adhere to high standards of conduct, including ethics rules that regulate behavior through norms, values, habits, attitudes, and beliefs. |
What You'll Learn
Political activities
The political activities of federal law clerks are governed by Canon 5 of the federal Code of Conduct for Judicial Employees. This code outlines that law clerks must maintain the integrity and independence of the courts, refraining from associating with political opinions or candidates. While law clerks can be registered with a political party and vote in elections, they must keep their political opinions confined to private conversations with family and close friends.
Law clerks are prohibited from running for public office or campaigning for others. They are not permitted to disseminate their political views to a broader audience, be it through active participation in a forum or passive means such as displaying a yard sign or bumper sticker. Law clerks must be cautious about their online presence and the potential reach of their audience, even when they believe their audience is limited. The "front-page test" is a recommended guideline, suggesting that before posting anything online, law clerks should consider if they would be comfortable with that content being a cover story.
The political activities of a law clerk's immediate family are also subject to certain restrictions. Family members can only engage in political activities if the law clerk can disassociate themselves from those activities. For example, if a spouse wishes to donate to a political campaign, they should do so from a separate account to maintain financial segregation.
In addition, federal law clerks should refrain from soliciting or accepting gifts from anyone whose interests may be impacted by the work of the court. There are exceptions to this rule for items of minimal monetary value, such as a coffee mug, or food provided during a work-related function.
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Financial contributions by family
The federal Code of Conduct for Judicial Employees outlines the ethical considerations that federal law clerks must adhere to with regards to financial contributions by their family members. Canon 5 of the Code addresses the political activities of judicial law clerks, including partisan and non-partisan engagement. While law clerks can register with a political party and vote in elections, they must confine their political opinions to private conversations with family and close friends. They are prohibited from running for public office, campaigning for others, or publicly expressing their political views.
In terms of financial contributions by their family, law clerks must be able to disassociate themselves from the act. For example, if a spouse wishes to donate to a political campaign, they should do so from a separate account that is not linked to the law clerk. This ensures that the law clerk's integrity and independence are maintained, without their personal or financial interests influencing their professional duties.
Additionally, law clerks must carefully evaluate any monetary benefits they receive, even during the interview process. While reasonable reimbursements for expenses like travel or meals may be acceptable, invitations to events or activities that could create a conflict of interest, such as a ski retreat, should be declined. Federal and state laws also prohibit clerks from soliciting or accepting gifts, except for certain de minimis items or those within the scope of ordinary social hospitality.
It is important to note that conflicts of interest for judicial law clerks can extend beyond their own financial contributions. A conflict may arise if the clerk's spouse, partner, or close relative is financially affected by a matter to the extent that a reasonable person would question the clerk's impartiality. Therefore, law clerks must be vigilant about any potential conflicts arising from their family members' financial activities and take steps to ensure their integrity and independence in carrying out their duties.
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Duty of confidentiality
The duty of confidentiality is a critical aspect of a federal law clerk's ethical obligations. Canon 3(D) of the Code of Conduct for Judicial Employees sets the minimum standard for maintaining confidentiality. This duty extends beyond the clerk's tenure and applies even after the clerkship concludes or a case is complete. Confidentiality obligations can be further expanded upon by specific jurisdictions, courts, and judges, who may provide additional guidelines and designations of what information is confidential.
Confidentiality statements are designed to prevent inadvertent disclosures and outline the circumstances under which confidential information can be disclosed. These statements ensure that law clerks handle sensitive information with the utmost discretion. For example, the Confidentiality Statement from the U.S. District Court for the Northern District of Illinois serves as a guide for law clerks in this district.
The duty of confidentiality is closely tied to avoiding conflicts of interest. Law clerks must be vigilant in ensuring they do not find themselves in conflict with a specific case, subject matter, or party. This includes considering potential biases, current relationships, and prior relationships that may impact their ability to remain impartial.
One of the key considerations for law clerks is the potential for bias. If a law clerk has personal knowledge of case facts or a party involved, or if they may harbour prejudice toward a party, it could compromise their ability to maintain confidentiality and impartiality. Similarly, current relationships, including those with family members, can create conflicts of interest. If a law clerk or their relatives are likely to be materially impacted by the outcome of a case, it could influence the clerk's ability to maintain confidentiality and impartiality.
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Impartiality and conflicts of interest
Canon 3(F)(1) of the Code sets a broad impartiality standard, requiring clerks to avoid situations where they, their spouses or partners, or close relatives might be personally or financially affected by a matter, such that a reasonable person would question their impartiality. This includes cases where the clerk or their relative may have a prior relationship with a party or lawyer, or where they could be materially impacted by the outcome.
Canon 3(D) of the Code establishes the duty of confidentiality for federal judicial employees, including law clerks. This duty extends beyond the clerk's tenure and the completion of a case. Confidentiality statements provide guidance on inadvertent disclosures and authorised sharing of information.
To maintain impartiality and avoid conflicts, law clerks must be prudent and vigilant. They should assess potential conflicts with specific cases, subjects, or parties, just as attorneys evaluate new clients for potential conflicts. This includes considering prior relationships with cases or parties and personal knowledge or biases towards those involved.
The Code of Conduct also addresses political activities, with Canon 5 prohibiting partisan engagement and restricting the expression of political opinions to private conversations. While clerks can register with a political party and vote, they must disassociate themselves from the political activities and financial contributions of their immediate family. These restrictions ensure the court's independence and integrity by preventing associations with political opinions or candidates.
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Ethical obligations
A federal law clerk has several ethical obligations to consider when contemplating representing a family member. These obligations vary depending on the jurisdiction and the specific rules of professional conduct that apply. Here are some key ethical considerations for a federal law clerk in this situation:
Conflicts of Interest: One of the primary ethical concerns for any legal professional is avoiding potential conflicts of interest. A federal law clerk must carefully evaluate whether representing a family member creates any actual or potential conflicts. This includes considering the interests of the clerk's employer (the court) and ensuring that the representation of the family member does not interfere with the clerk's official duties. The
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Frequently asked questions
Federal law clerks must adhere to the Code of Conduct for Judicial Employees, which includes maintaining confidentiality, avoiding conflicts of interest, and refraining from certain political activities to preserve the integrity and independence of the courts.
Federal law clerks can register with a political party and vote in elections, but they must limit their political opinions to private conversations. They cannot run for public office, actively campaign for others, or publicly express their political views.
The political activities and financial contributions of a federal law clerk's immediate family may be permissible if the law clerk can disassociate themselves from those activities. For example, a spouse's political donation should be made from a separate account.
Conflicts of interest include situations where the law clerk, their spouse/partner, or a close relative might be personally or financially affected by a matter, creating a reasonable question about their impartiality. It also covers biases, current and prior relationships with parties or lawyers, and personal knowledge of case facts.
The duty of confidentiality for federal law clerks is outlined in Canon 3(D) of the Code of Conduct for Judicial Employees. Confidentiality obligations are strict and continue even after the clerkship ends. However, specific jurisdictions and judges may provide guidance on when disclosure is authorized.
