CJE Opinion No. 2009-4
The Committee on Judicial Ethics has determined that the following opinion will be published in its unredacted form. The Committee has not changed its policy of posting opinions in a manner that protects the identity of the requesting judge.
Deferred Associates Serving as Volunteer Interns/Law Clerks
June 8, 2009
CJE Opinion No. 2009-4
You are the Chief Justice of Administration and Management of the Trial Court who has requested an opinion from the Committee on behalf of the judges of the Trial Court as to whether the Trial Court may accept as volunteer interns law firm associates who have had their September 2009 start dates deferred and who will be receiving stipends and/or health benefits from their respective law firms during the deferral periods. These volunteer interns would serve in essentially the same capacity and perform the same tasks as the Trial Court's law clerks. Your understanding is that the law firms do not consider these deferred associates to be their employees until their permanent start dates.
In your inquiry letter, you have advised, in part, as follows:
"In response to the current economic crisis, law firms throughout the nation, including many in Massachusetts, have instituted associate deferral programs. The details vary from firm to firm, but in most cases, law firms have delayed the start dates of incoming first-year associates by several months to a full year. To reduce the adverse economic impact of the deferral of the incoming associates' start date, most firms will provide the deferred associates with a stipend or portion of what would have been their first-year salary. Health benefits may also be included. [Your] understanding is that some firms require the deferred associates to volunteer with a public interest entity during the deferral period, while others merely encourage such public service, and still others impose no such expectations at all. It is also [your] understanding that the law firms do not consider their deferred associates as employees until their permanent start dates.
"The various Trial Court departments have received informal inquiries as to whether they would accept deferred associates as volunteer interns. Accepting deferred associates as volunteer interns would be of mutual benefit. The volunteer interns would have a means to gain experience, to develop their skills, and to serve the public interest while waiting for their deferral period to end. Their availability, meanwhile, would mitigate the effects of a severe shortage in law clerks that the Trial Courts will face beginning in September 2009 or earlier, due to the economic crisis and resulting budget cuts."
The judges of the Trial Court propose a program that is blind on all sides.
"The Trial Court departments will not deal directly with any law firms. Instead, the Flaschner Judicial Institute will serve as the clearinghouse for collecting résumés and other application materials from deferred associates interested in volunteering with the Trial Courts. This applicant pool will include only deferred associates. No judges who are officers or trustees of the Flaschner Judicial Institute will review the application materials."
The résumés Flaschner collects would only include past experience and would not indicate where those lawyers would be working at the end of the clerkship. The judges of the Trial Court would review those résumés, with each department utilizing its own selection process to choose volunteer interns from the pool. Flaschner would instruct the law firms not to publicize the fact that their deferred associates are serving as volunteer interns for the judges of the Trial Court on any law firm web page, brochures, or other promotional materials.
The volunteer interns would never disclose that a law firm is paying their stipend to anyone in the courts, including judges, law clerks, and other volunteer interns. The volunteer interns would also understand that they are to have no involvement in matters in which their law firms are involved. In the event of a conflict on a particular case, the volunteer intern would simply tell the department's designated individual - e.g., the Manager and Assistant Manager of Legal Research Services in the Superior Court - that the intern has a conflict on a case without identifying the nature of the conflict. Upon such an occurrence, the case would be reassigned. The volunteer interns would keep a log of all cases they work on, as well as all cases on which they have a conflict and have requested reassignment, and the judges of the Trial Court would preserve the logs for a set period of years.
The Committee would add to this suggested procedure the following: that the volunteer interns not disclose their deferred law firm affiliation in print or electronically, including on social networking sites such as Facebook and Twitter, during the period they work for the judges of the Trial Court; that the volunteer intern's law firm's involvement in a case in any capacity - whether as counsel, witness, or party - trigger the intern's recusal; that the law firms not engage in any type of public acknowledgment of their "sponsorship" of volunteer interns, whether orally, electronically, or in print; and, finally, that Flaschner communicate all of these requirements - both yours and the Committee's - to the law firms, to the volunteer interns, and to the Chief Justices of the Trial Court departments in writing prior to the commencement of the volunteer internships and every three months thereafter. This Committee is of the opinion that the judges' suggested procedure, as amplified by the Committee, will administer the program consistent with the Code; if the judges of the Trial Court fail to take these precautions, however, accepting these volunteer interns would violate the Code.(1)
Your request implicates two principal areas of the Code of Judicial Conduct: a judge's appearance of impartiality and a judge's acceptance of gifts. (2) First, the fact that law firms whose attorneys regularly appear in the Trial Court would be paying the salaries of the volunteer interns triggers Canon 1, requiring a judge to "uphold the integrity and independence of the judiciary[,]" Canon 2, directing a judge to "avoid impropriety and the appearance of impropriety in all of the judge's activities[,]" and Canon 3 requiring a judge to "perform the duties of judicial office impartially and diligently." "'It is not enough that [the judges] know [them]selves to be fair and impartial or that [they] believe this of [their] colleagues.' . . . [N]or is it enough that the cognoscenti think [the judges] fair and impartial. Instead, the pertinent question is whether an objective, disinterested observer fully informed of the relevant facts could entertain a serious doubt about a judge's ability" to be impartial when law firms likely to appear in the judge's court pay the volunteer interns' salaries. CJE Opinion 2009-1 (alteration omitted), quoting In re Brown, 427 Mass. 146, 149 (1998).
To achieve this appearance of impartiality, the judge must "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary[,]" Section 2A, and "not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge." Section 2B. Unlike in CJE Opinion 2005-4 where the Committee concluded that the Trial Court's acceptance of a donation from a commercial vendor would "compromis[e] the appearance of neutrality and impartiality" and appear to lend "the collective prestige of the judicial branch to advance [the donor's] private interests[,]" no disinterested objective person could reasonably question a judge's impartiality in light of the arrangement the judges of the Trial Court have proposed.
Opinions in which the Committee considered sponsorship of programs in which judges were involved or sought involvement provide support for this conclusion. E.g., CJE Opinion 2007-4 (advising judge that, in order to attend organization's event honoring him without violating Section 2B, he had to require organization not to permit law firm sponsoring event to use its role in the event, "or the names or images of the judge honorees, as part of any written, oral, or electronic (e.g., web site) advertising promotional material, or other client solicitation efforts"); CJE Opinion 2005-3 (finding that while Code did not preclude charitable organization, whose membership includes judges and attorneys, from disclosing results of its fundraising to judicial members, such disclosure had to "be undertaken in a way that does not `permit [donors] to convey the impression that they are in a special position to influence'" judges, in violation of Section 2B (alteration in original)); CJE Opinion 2002-12 (concluding judge's attendance at law school event "would give rise to an appearance that those who contributed were in a special position to influence" a judge in violation of Section 2B's predecessor if identity of those private individuals who funded event were disclosed to general public); cf. CJE Opinion 2000-6 (concluding Code prohibited university's use of photograph of judge posed in front of university building along with quote seemingly attributed to judge because such use "appears to be a ringing endorsement of the University's educational value . . . . deriving much of its considerable impact from the [judge's] judicial office" (first alteration in original)).
The Committee's "underlying concern" in those opinions "was the likelihood that [a judge's] participation in such events would" violate Section 2B by permitting sponsors and contributors to convey that they were in a special position to influence the judge. CJE Opinion 2004-3. Here, the Trial Court's proposed procedure, as augmented by the Committee, aims to minimize "any particular nexus between the" judges and the law firms providing the volunteer interns. CJE Opinion 2007-4. Structuring the program in such a way that the law firms' involvement is unknown not only to the public but also to the judges who will be "employing" the volunteer interns will negate any impression that those law firms are in a special position to influence the judge. Flaschner's continued involvement during the course of the internships will also serve as a reminder to the participants of their ethical responsibilities, further enhancing the efforts undertaken to distance the judges of the Trial Court from the law firms. Cf. CJE Opinion 2003-7 (acknowledging, without opining on, existence of "blind trust" funded by contributions from attorneys who routinely appeared before judge in order to hire attorney to pursue action seeking repairs or better quarters for court, and noting that judge voluntarily opted not to attend fundraiser "because to do so would have revealed . . . the identity of many of the attorneys who contributed and who may practice before" that judge).
Additionally, the Trial Court has received informal inquiries regarding acceptance of volunteer interns. The judges of the Trial Court did not solicit any law firms for participation in this program, and the Trial Court will not place conditions on the number or types of firms that may "donate" volunteer interns. See, e.g., CJE Opinion 2007-6 (noting that judge could "give a public address" at conference as long as "conference will have multiple sponsors from a wide variety of organizations in the business, educational, governmental, and civic arenas, and . . . [as long as] conference organizers and sponsors would comply with conditions . . . which keep the focus on the event and reduce the appearance that [judge] [has] any special connection to the sponsors"); CJE Opinion 2007-4 (weighing amount and diversity of organization's members in favor of finding that group "would not convey the appearance that member firms are in a special position to influence any of the judicial attendees").
Moreover, the principal focus of this program is to serve the needs of the understaffed Trial Court and the people it serves, mitigating the effects of a severe shortage in law clerks that the Trial Court faces beginning in September 2009 as a result of the economic crisis and budget cuts. Any private benefit to the law firms involved is secondary to that benefit, and it is no different from the benefit to any law firm which has hired an associate in the ordinary course whose start-date follows the completion of a judicial clerkship. See, e.g., CJE Opinion 2007-5 (concluding that while judge's participation as "`presiding judge'" on public television children's program "may advance the interests of the producers and underwriters" in show's success, judge's "contribution to advancing those interests is, at best, minuscule and is wholly incidental to the show's larger educational goal"); CJE Opinion 2007-4 (finding that judge's attendance at event would not violate Section 2B even though organization's member law firms would yield some private benefit from participation in event because firms' private benefit was "neither the event's principal focus nor the principal benefit the event is likely to produce"); CJE Opinion 2003-18 (informing judge that Code permitted judge to be interviewed "as part of a project celebrating the . . . anniversary of a city in the county in which [judge] preside[s]" because "[p]articipation in the project would not convey the message that the prestige of [judge's] office is being used to advance a private or commercial interest" given that "beneficiary of the project is the city celebrating its anniversary").
Second, your inquiry raises the issue of whether the volunteer interns are a "gift" or "favor" to the judges of the Trial Court from the law firms. Section 4D(5) prohibits a judge from accepting "a gift, bequest, favor, or loan from anyone except for" certain situations, none of which applies here. (3) The Committee is of the opinion that, even if the volunteer interns are gifts or favors from the law firms to the judges of the Trial Court, they are permissible under the Code given the double blind structure of the proposed program. "The Code must be read as a whole. . . . [and] [t]he Canons and Sections are rules of reason. Some conduct that may literally violate a provision of the Code [i.e., Section 4D(5)(h) here] will be permissible because it does not violate the policy behind the prohibition or is de minimis." Preamble to the Code. As concluded for the reasons described in this opinion, a disinterested objective observer would not question the impartiality of the judges of the Trial Court when the law firms donating the volunteer interns appear before the judges. The program therefore would not violate the policy behind Section 4D(5)(h) and is permissible under the Code.
1 The Committee notes that including non-compensated volunteer law clerks in the Flaschner screening system would also be proper. Doing so would provide further support to the double blind system in that the law clerks résumés that Flaschner forwards to the Trial Court departments will include persons receiving compensation from law firms and persons who are not.
2 Federal judicial employees must comply with their own Code of Conduct, Canon 4E of 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 . . . ." See, e.g., Advisory Opinion of the Committee on Codes of Conduct No. 83 (rev. 1998 & 2005) (prohibiting federal law clerk from "accept[ing] any bonus given in anticipation of services to be provided for the clerk's future employer" during service as law clerk). No such provision exists in the Commonwealth.
3 It is unclear whether a donation of law clerk services is a gift to the Trial Court itself, thereby falling outside the scope of Section 4D(5), or whether it is a gift to individual judges. Cf. CJE Opinion 95-10 (considering publisher's donation of CD-ROM legal research service to judges of Superior Court). Because of the Committee's conclusion, below, the Committee need not resolve this ambiguity.