Maintaining

the Public Trust

Ethics for

Federal Judicial

Law Clerks

FEDERAL JUDICIAL CENTER 2002
Contents

2 Getting Started

5 Confidentiality

9 Conflicts of Interest

12 Outside Legal Activities

14 Dealings With Prospective Employers

16 Outside Professional, Social, & Community Activities

18 Receipt of Gifts and Honoraria

20 Political Activity

21 Ethics Checklist

An order form for additional copies of this pamphlet appears on the last page
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 1

Welcome to the federal judicial system.

As a new law clerk, you have a lot to learn in a very short

time. With many new issues competing for your attention, it’s

important that you not lose sight of your ethical obligations.

Many ethics questions can be answered with common sense,

but there are some areas where you need to be aware of specific

rules imposing restrictions that are not intuitively obvious. What

do you need to know to prepare yourself? The Judicial Conference Committee on the Codes of Conduct has identified several

areas in which ethical issues most often arise for law clerks.

They are:

• confidentiality

• conflicts of interest

• outside legal activities

• dealings with prospective employers

• outside professional, social, and community activities

• receipt of gifts and honoraria

• political activity

To avoid embarrassment to yourself and potentially to your

judge, it is important that you understand your obligations in

these and all other ethical areas. The Federal Judicial Center, in

cooperation with the Codes of Conduct Committee and the Administrative Office of the U.S. Courts, has prepared this pamphlet to help you get started.

This pamphlet cannot cover every situation that may arise.

You should familiarize yourself with the Code of Conduct for

Judicial Employees and the other references cited in this pamphlet. You will also need to familiarize yourself with your judge’s

ethical guidelines. These may differ from chambers to chambers, and your judge may not permit conduct or activities acceptable under the Code of Conduct. If you have a question that

is not clearly answered by the Code of Conduct and this pamphlet, you should discuss the matter with your judge. Guidance

is also available from other sources, as discussed below.

The “Ethics checklist for federal judicial law clerks,” which
2 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

is at page 21, will help you identify ethics problems that may

require you to isolate yourself from a case in your judges’ chambers or refrain from certain activities outside the office. You

should fill it out upon starting work as a law clerk, then review

it with your judge.

Getting Started

You just started your federal judicial clerkship. Your new office is

stacked with case files, law books, and your court’s rules. You

want to be sure that you familiarize yourself with important

ethical guidelines before your clerkship shifts into high gear. How

should you get started?

You can start by reading this pamphlet and any guidelines

provided by your judge or court.

Then, you should review a copy of Volume II of the Guide to

Judiciary Policies and Procedures. Many judges have this volume in chambers, and it is available in court libraries, on the

Administrative Office’s site on the federal court’s intranet

(http://jnet.ao.dcn), and on WESTLAW in a database called “Conduct,” accessible by judicial employees only. The Guide contains information used by the judiciary in its day-to-day operations. Volume II focuses on ethics and includes the following:

• The Code of Conduct for Judicial Employees, which took

effect in 1996. The Code covers all judicial employees,

except for a few discrete groups, and extends to members

of the judge’s personal staff, including law clerks, judicial

assistants, and secretaries.

• The Ethics Reform Act of 1989 and Judicial Conference

regulations promulgated under it. The provisions applicable to law clerks deal with receipt of gifts and honoraria.

• Published advisory opinions of the Codes of Conduct Committee. These advisory opinions address issues frequently

raised or issues of broad application. Advisory Opinion

Nos. 51, 64, 73, 74, 81, 83, and 92 are of special interest to

law clerks.
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 3

• The Compendium of Selected Opinions of the Codes of

Conduct Committee and a new Compendium of Selected

Employee Opinions. The Compendium contains summaries of advice given in response to confidential fact-specific inquiries. The Employee Compendium compiles only

those summaries pertaining to judicial employees. Committee members can answer questions about a particular

opinion without disclosing the identity of the person who

solicited the advice.

How can you determine whether something you

want to do is permissible?

When you are evaluating a particular course of conduct, remember to look at all the relevant canons and statutes. An activity that may be permissible under a general section of a canon

may not be permissible under one of the more specific provisions. For example, law-related activities are generally permitted under Canon 4, but there are strict limitations on the practice of law in Canon 4D. Also, note that the Code does not contain all applicable ethical restrictions. The Code incorporates

some statutes, such as 18 U.S.C. § 641 which prohibits embezzling or converting government money property or records, but

not all. The honoraria restrictions, for example, appear in the

Ethics Reform Act regulations.

Some rules are more restrictive for law clerks than for other

court employees. These restrictions are due to the special relationship between a judge and a law clerk. As the Codes of Conduct Committee stated in Advisory Opinion No. 51:

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.
4 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

If you have questions after reviewing the

information outlined above, what should you do?

If you still have questions, you should ask your judge for guidance. You may also contact the General Counsel’s Office, at the

Administrative Office of the U.S. Courts, for additional information. If you or your judge believe it would be useful, you

may seek a formal advisory opinion from the Committee on

Codes of Conduct.

How to Contact the General Counsel’s Office

By telephone: 202-502-1100 from 8:30 a.m. to 5:00 p.m.,

eastern time; ask for the ethics officer.

By mail:

Office of the General Counsel

Attention: Ethics Officer

Administrative Office of the U.S. Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE

Washington, DC 20544

By fax: 202-502-1033

To obtain a formal advisory opinion from the Committee on Codes of Conduct, first consult with your judge,

then put your question in writing and send it to:

Committee on Codes of Conduct

c/o Office of the General Counsel

Administrative Office of the U.S. Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE

Washington, DC 20544

All inquiries — whether by phone, mail, or fax — are confidential.
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 5

Confidentiality

The basic rule

Chris, a law clerk, has been working on a high profile criminal

case recently assigned to her judge. Some friends who are law

students are interested in learning about the case, and particularly about a likely ruling on a suppression motion that is expected shortly. What can Chris discuss?

Consistent with her obligation to maintain confidentiality,

Chris cannot say anything about the case that is not a matter of

public record. Canon 3D of the Code of Conduct for Judicial

Employees states that employees should not:

• disclose confidential information received in the course

of official duties, except as required in the performance

of such duties;

• employ such information for personal gain; and

• comment on the merits of a pending or impending action.

Advisory Opinions of Special Interest to Law Clerks

• Number 51: Propriety of a Law Clerk to a Judge

Working on a Case in Which a Party is Represented

by the Spouse’s Law Firm.

• Number 64: Employing a Judge’s Child as Law

Clerk.

• Number 73: Requests for Letters of

Recommendation and Similar Endorsements.

• Number 74: Law Clerk’s Future Employer.

• Number 81: When Law Clerk’s Future Employer Is

the United States Attorney.

• Number 83: Law Clerks’ Bonuses and

Reimbursement for Relocation and Bar-Related

Expenses.

• Number 92: Political Activities for Judicial

Employees.
6 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

Talking to friends about a pending case could fall within these

prohibitions. Although the Code does not define confidential

information, the term likely includes any information you receive in chambers that is not filed in the public docket. Instructions you receive from your judge, and discussions about his or

her legal assessment of a case, should also be treated as confidential. This means that Chris should not discuss with her friends

when or how her judge may rule on the pending suppression

motion.

A continuing obligation

Confidentiality restrictions do not end when your clerkship is

over. Former law clerks are expected to observe the same reInformation That’s Confidential

• Statements, or even hints, about the judge’s likely

actions in a case

• Disclosure of the timing of a judge’s decision or

order, or any other judicial action, without the

judge’s authorization

• The content of case-related discussions with a

judge

• Observations about the judge’s decision-making

process in specific cases

• Documents or other information related to a sealed

case

• Information obtained in the course of a law clerk’s

work that is not available to the general public

Information That’s Not Confidential

• Court rules

• Court procedures

• In general, how the court operates

• Court records, including the case docket available

from the clerk’s office

• Information disclosed in public court proceedings
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 7

strictions on disclosure of confidential information that apply

to current employees. Of course, both during and after your

clerkship you may divulge information to the extent your judge

authorizes you to do so. If you are uncertain what information

is confidential or what limitations you should observe in your

discussions outside the office, you should check with your judge.

Many courts also have local rules on confidentiality.

Dealing with attorneys

Attorneys often want to know how their cases are going, and

they want an insider’s view of how they can improve their

clients’ prospects. They may call and give their arguments to

you, to try to lead you into a discussion of the merits. You

should not engage in substantive discussions with counsel; indeed, your judge may not permit any discourse at all. Regardless of the exchanges permitted, you should never discuss or

divulge confidential information.

If the lawyer attempts further advocacy, one possible response is, “If all those points are in your pleading, the judge

will read it and consider them.” If the lawyer attempts to find

out what the judge is thinking, you can say “I’m sorry, but

you’ll have to wait until the opinion issues.” This can be more

difficult if the lawyer is someone you know, such as a law

school acquaintance or a family friend. But your obligation to

the court remains the same: to protect the judge’s confidences

and the integrity of the court.

Dealing with the press

The judge for whom Graham clerks was assigned a high profile

case. Reporters have been calling seeking information to make

their stories more detailed, accurate and compelling. Can Graham respond to these requests?

Canon 3D provides firm guidance on this point: law clerks

should not disclose any confidential information or comment

publicly on the merits of pending (or impending) actions. This

means that Graham should not respond to questions of sub-
8 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

stance or reveal judicial confidences. But Graham may be able

to direct callers to information that is in the public record, and

to provide comments on technical and administrative matters,

if his judge agrees. With his judges’ permission, he could also

discuss in general how the district court works, rules and procedures, and the handling of complex cases.

Some courts have designated employees to handle media

inquiries, and written guidelines for press inquiries may be available from your judge or clerk. Remember, even when a reporter

requests information “just for background,” confidentiality

should be maintained and public comment avoided. Doing otherwise may reflect unfavorably on the chambers, even if what

you say is entirely accurate. For this reason, many judges are

strongly opposed to having their law clerks discuss anything at

all with the media.

Family and friends

Your family and friends want to know what you do all day.

Usually, you can give them a pretty clear picture of your career

as a law clerk without talking about specifics. Sometimes it can

be tempting to say more, when you happen to know the latest

about a case that is in the newspapers.

But the same restrictions apply: you should neither divulge

any confidences, nor engage in discussions of cases pending in

your court. Your judge needs to trust that whatever he or she

tells you is confidential and will not leave the chambers.

Other law clerks

You can ordinarily discuss legal issues with your co-clerks who

are clerking for the same judge, but how freely can you discuss

case-related matters with law clerks from other chambers? Your

judge may have specific instructions that you should follow.

Sharing confidential information with anyone outside of your

immediate chambers is inappropriate without your judge’s permission. You also should refrain from divulging comments your

judge makes to you.
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 9

As an appellate law clerk, you have an additional consideration. What about law clerks who are working for other judges

assigned to the same appeal? As always, if you have specific

questions about what’s permissible, check with your judge.

Conflicts of Interest

The basic rule

Laura’s grandmother gives her stock every year for her birthday.

Laura knows that her judge does not handle cases in which the

judge owns stock in a party. Should Laura also avoid working

on cases if she owns stock in a party?

Yes, as this presents a financial conflict of interest.

Canon 3F(1) advises judicial employees, including law

clerks, to avoid conflicts of interest. Conflicts arise when you

know that you—or your spouse or other close relative—might

be so personally or financially affected by a matter that a reasonable person would question your ability to perform official

duties impartially. This includes owning even one share of stock

in a party. Members of your household in a similarly close

relationship may also give rise to conflicts concerns.

Canon 3F(2) contains specific restrictions applicable to law

clerks. You should not perform official duties where:

• you have any financial interest in the subject matter or in

a party to the case;

• your spouse or minor child residing in your household

has a financial interest in the subject matter or in a party

to the case;

• you, or a lawyer with whom you practiced, serves(d) as a

lawyer in the matter;

• you have a personal bias or prejudice concerning a party,

or personal knowledge of disputed evidentiary facts;

• you or a close relative is a party, lawyer, or material witness, or has an interest that could be affected substantially by the outcome.
10 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

As you can see in the accompanying sidebars, some conflicts are predictable and recurring. Other situations must be

examined to see if there is a conflict. In either case, keeping the

judge informed—as soon as you become aware of the conflict

or potential conflict—is crucial.

Actual Conflicts

• In a previous legal job, you worked on a lawsuit

that is now assigned to your judge

• A firm at which you plan to work after your clerkship serves as counsel in a matter before your judge

• You witnessed a crime and the alleged perpetrator’s

case is now before your judge

• You or your spouse or minor resident child own stock

in a company that is a party before your judge

• Your spouse represents a party in a proceeding before your judge

• Your sister or brother is a plaintiff in a class action

lawsuit pending before your judge

Potential Conflicts

Situations such as these do not necessarily disqualify you

from working on a case, but you should always alert your

judge to them.

• A neighbor’s name appears on a witness list in a

case your judge is handling

• An attorney you meet at a social function, and with

whom you engage in a long discussion, appears

the next day to argue a motion before your judge

• An environmental hazard in a case before your judge

borders your parents’ vacation property

• As the editor of your school’s law review, you expressed opinions on the merits of a case now on

appeal before your judge
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 11

Financial conflicts

Like the judges they serve, law clerks should not perform official duties in matters in which they have a financial interest.

Laura’s work on cases in which she has a financial interest would

be inconsistent with Canon 3F(2). Her judge can assign another

law clerk to the matter. Laura should keep informed about her

stockholdings and other financial interests so that she can avoid

working on matters that pose a financial conflict. Financial interests include stocks and other ownership interests, however

small, but generally do not include bonds and mutual funds. A

definition of financial interest is in Canon 3F(4).

Other conflicts

Clay is in the second year of his clerkship. His wife is an associate at a firm that is handling a case assigned to Clay’s judge, but

she is not working on the case. What should Clay do?

Clay should bring the conflict of interest to his judge’s attention immediately. He cannot participate in the case, and his

judge will probably want to inform the parties of the relationship between the clerk and the lawyer.

As stated in Advisory Opinion No. 51, law clerks are in a

unique position among judicial employees, in light of their close

association with the judges they serve. If a law clerk’s spouse is

working on the case, the law clerk should not participate. The

same advice applies even if the spouse has no involvement in

the case but is a partner or associate at the firm handling the

matter.
12 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

Outside Legal Activities

Law-related employment

Miranda hopes to earn some extra income while clerking. She is

considering working on a textbook for a legal publisher or installing computers part-time at her cousin’s law firm. Are there

any problems with these activities?

It depends. Under Canon 4, law clerks are permitted to engage in a wide range of outside activities, including activities

relating to the law, the legal system, and the administration of

justice. Law-related writing and teaching are specifically mentioned in this respect. But outside legal activities must be consistent with the standards set forth in Canon 4, which are intended to ensure that an employee’s activities do not interfere

with official duties or reflect poorly on the court.

An outside activity consisting of paid employment raises

special concerns that are addressed in Canon 4C(1). This Canon

advises employees to avoid activities that exploit their judicial

position or associate them in a substantial financial manner

with attorneys likely to appear in their court. Consistent with

these standards, Miranda will not be able to work part-time for

a law firm while clerking, even doing non-legal work, but she

may be able to help draft a legal textbook, as long as her role

does not exploit her judicial position.

Miranda should confer with her judge before undertaking

any outside legal activity, whether or not for compensation.

Canon 4A states that if outside activities are law-related, “the

judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and the other provisions of

this Code.”

Practice of law

Alex volunteered as a lawyer at a legal clinic after completing

law school. Can he continue this volunteer activity during his

clerkship?

Alex may be able to continue this activity if his judge ap-
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 13

proves. Canon 4D generally prohibits law clerks from practicing

law. One exception to the general prohibition permits law clerks

to provide legal services in civil matters on a pro bono basis.

Canon 4D lists several limitations applicable to pro bono practice, which may not:

• take place on duty or in the workplace or interfere with

judicial responsibilities

• result in compensation

Outside Legal Activities–A Checklist

1. Does the activity interfere with your performance of

official duties?

2. Will the activity exploit your government position?

3. Does the activity present an appearance of impropriety or reflect adversely on the court?

4. Will the activity associate you in a substantial financial manner with attorneys appearing in your court?

5. If the activity involves routine family legal work,

does it –

Involve any appearance in federal court?

Occur while on duty or in the workplace?

Result in compensation (other than in probate

proceedings)?

6. If the activity involves pro bono practice of law, does

it –

Involve any appearance in a federal, state, or local

court or administrative agency?

Occur while on duty or in the workplace?

Involve a matter of public controversy or an issue

likely to come before your court?

Result in compensation?

7. Is the activity inconsistent with any additional condition or limitation your judge imposes on law clerks’

law-related activities?

If you answer yes to any of these questions, you should

not engage in the activity.
14 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

• involve an appearance in any court or agency

• involve matters of public controversy or issues likely to be

before the court

• include litigation against, federal, state, or local government

Pro bono work also must be reviewed in advance with the judge.

In accordance with these standards, Alex could not enter an

appearance in court or litigate against the government, even on

a pro bono basis.

Other exceptions to the prohibition on the practice of law

include pro se appearances and providing limited assistance to

family members if the assistance does not involve a federal court

appearance. Law clerks may engage in these limited forms of

law practice subject to the restrictions set forth in Canon 4D.

If Alex is interested in pursuing this further, he should consult

with his judge. Some judges may not permit their law clerks to

practice law even on the limited bases described in the Code.

Dealings with Prospective

Employers

The basic rule

Joanna is midway through a clerkship and is starting to focus on

career plans. Can she begin her job search?

Yes, assuming her judge does not object. Canon 4C(4) permits a law clerk to seek and obtain employment commencing

upon completion of a clerkship after consulting with the judge

and observing any restrictions imposed by the judge. Some judges

may not permit law clerks to interview or accept employment

during the clerkship, so it is important for Joanna to review her

plans with her judge.

Applying for employment, interviewing, and negotiating for

a position can each present ethical issues. These include:

• confidentiality concerns;

• benefits that may be offered;
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 15

• conflicts when prospective employers appear in your court;

and

• post-clerkship considerations.

Confidentiality

Maintaining confidentiality may be a particular challenge during job interviews. Prospective employers may probe for insights

into your judge’s deliberations and your contributions to judicial opinions. Joanna should remember that confidentiality restrictions are not relaxed during job interviews. With her judge’s

approval, she may want to prepare an expurgated bench memo

to give to prospective employers as an example of her legal work.

Benefits

Benefits may be offered during the interview process: transportation and lodging, meals out, and local entertainment. The Judicial Conference Gift Regulations § 5(i) provides useful guidance. Generally, Joanna may accept benefits that are customarily provided by prospective employers in connection with bona

fide employment discussions.

Employers may offer additional benefits once a law clerk

has accepted an offer. Some firms pay for bar-related expenses,

while others offer signing and clerkship bonuses. Advisory Opinion No. 83 spells out what law clerks can and cannot accept in

these circumstances. Unless her judge objects, Joanna may accept reimbursement of bar expenses, but she should not accept

a bonus while she is still employed as a law clerk.

Conflicts

Conflicts of interest considerations also can arise during employment discussions. If a law firm is handling a case before

her judge, may Joanna apply for a job there? May she accept a

job with the U.S. Attorney’s office, which appears in numerous

cases? Generally speaking, once Joanna accepts an offer—or is

likely to do so—she should not work on any case involving her
16 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

future employer. More detailed guidance on these questions

appears in Advisory Opinion Nos. 74 and 81. Be sure to read

them and talk to your judge before applying for jobs in this

situation.

Post-clerkship considerations

Finally, Joanna should remember that certain restrictions will

follow her into her new job. She should not handle any matter

pending before her judge while she was clerking there. Also,

many judges have policies about how much time must pass

before a former law clerk can appear before the judge. Be sure

to ask about your court’s policy on this. And remember: even

after your clerkship ends, you cannot divulge confidential information that you learned during your clerkship. Former law

clerks are expected to observe the same restrictions on disclosure of confidential information that apply to current employees.

Outside Professional,

Social & Community Activities

The basic rule

Milton was active in drama and musical groups during law school

and would like to continue participating in them during his clerkship. Is this permitted?

Yes. Canon 4A permits law clerks to undertake outside professional, social, and community activities, so long as they do

not interfere with the performance of official duties or adversely

reflect on the operation and dignity of the court. Subject to those

standards and other provisions of the Code, judicial employees

may engage in a wide range of activities—charitable, religious,

cultural, avocational, recreational, and so forth—and may speak,

write, lecture, and teach.

While the Code does not require law clerks to seek their

judge’s approval before pursuing non-law-related activities, your
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 17

judge may ask you to do so, and you may want to do so anyway

to resolve any questions.

Some important restrictions

Sara has been asked to serve on the board and raise funds for a

neighborhood organization that provides housing for the homeless. She knows that her judge is not permitted to solicit funds

but she is uncertain whether any restriction applies to her?

Sara may engage in many outside activities, and solicit funds

for them, but these activities are subject to some important restrictions. The restrictions on fund-raising are contained in

Canon 4B and include restrictions on:

• using the prestige of office to solicit funds

• soliciting funds from subordinates and other court personnel

• soliciting funds from attorneys and others who appear in

the court.

Participation in organizations that engage in litigation or

take controversial stands on matters of public policy are also

restricted. An outside pursuit may reflect adversely on your

impartiality or that of your judge or court. For example, law

clerks should not serve on the board of organizations that litigate frequently in federal court, or that lobby government officials on controversial public policy issues that are matters of

contentious debate in the political arena. Sara cannot just rely

on the label an organization gives itself; she has to look at what

it does and what her individual role would be.

Use of office equipment and services

What about using office equipment and services, such as copiers, fax machines, telephones, and Internet access? May employees conduct their outside activities using these resources?

Canon 4 advises that a judicial employee’s outside activities

should not “interfere with the performance of official duties, or

adversely reflect on the operation and dignity of the court.”

Judicial employees have a responsibility to protect and conserve
18 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

government property and should not use government property

for other than authorized purposes.

If your proposed use of office resources will impose costs

on the court, or interfere with court operations, you should determine whether it is authorized. Your court may have a policy

permitting de minimis use of resources, such as occasional copying of short documents. Use that does not impose any cost on

the government should also be acceptable, such as use of the

court’s library in the evening. Note, however, that any practice

of law, as permitted under Canon 4D, should not take place in

the employee’s workplace. And in no event is it permissible for

a law clerk to use office equipment and services for outside

activities in a manner that imposes substantial costs on the government.

Receipt of Gifts and Honoraria

The basic rule—gifts

Marsha and Jean met when they started their clerkships together.

Marsha’s uncle, a prominent federal litigator in town, stopped

by chambers on their first day at work and gave them both expensive pens. May they accept these gifts?

Marsha may, but Jean, who just met Marsha’s uncle, should

not. The Judicial Conference Gift Regulations, § 5, says that judicial employees should not accept gifts from anyone seeking to

do business with the court or from a party or other person with

an interest in the performance of the employee’s official duties.

There are several exceptions, described below. In addition, gifts

may never be accepted in return for being influenced in the

performance of an official act or on a basis so frequent that it

appears public office is being used for private gain.

There are exceptions to the general prohibition on receipt of

gifts. These include:

• ordinary social hospitality
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 19

• gifts from relatives and friends on special occasions, such

as an anniversary or birthday

• gifts arising out of a spouse’s separate business or professional activity

• invitations to bar-related functions

• scholarships or fellowships on standard terms

The gift to Marsha falls into the exception for gifts from relatives on special occasions, so that she may accept the pen. The

regulations also contain an exception for “de minimis” gifts (valued at $50 or less), but it does not apply to law clerks. Because

no exception covers the gift to Jean, it should be declined.

What should you do if you are offered a gift that you may

not accept? The item can be returned to the donor. If it is perishable, it may be given to charity, shared within the office, or

destroyed.

The basic rule—honoraria

Stuart’s high school English teacher invited him to make a speech

on “career day.” The school offered a $50 stipend, plus taxi fare.

Can he accept?

The Judicial Conference Regulations on Outside Earned Income, Honoraria, and Employment, § 4, prohibits judicial employees from accepting honoraria. Honoraria are defined as payments for a single appearance, speech or article, or for a series

of appearances, speeches or articles related to official duties.

There are several exceptions (e.g., for a series of speeches or

articles unrelated to official duties), which are worth examining

if you are offered a fee for speaking and writing activities. Under these regulations, Stuart may not accept the $50 stipend but

may accept reimbursement for his taxi fare.
20 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

Political Activity

The basic rule

Ann, a law clerk, wants to assist a candidate in an election for

the county court. The election is nonpartisan; that is, candidates

do not align themselves with any political party. Her husband is

the campaign manager. May Ann participate in the campaign?

No. Canon 5 bars a law clerk from participating in both

partisan and non-partisan political activity. Prohibited activities

include running as a candidate for office, campaigning for others, publicly endorsing – or opposing – candidates, and contributing funds to political organizations, candidates, and events.

Ann should not participate in political campaigns for the duration of her clerkship, nor should she wear political buttons or

display political signs or bumper stickers.

Permissible activities

Guidelines on political activities are set forth in Advisory Opinion No. 92. The opinion provides examples of activities that are

clearly permissible and clearly impermissible. The permissible

activities are relatively few and narrow:

• Registering and voting in a primary or general election

• Registering as a member of a political party

• Expressing a personal opinion privately—for example, to

a family member or friend—as an individual citizen regarding a political candidate or party

• Participating in the nonpolitical activities of a civic, charitable, and similar organization, described in Canon 4

Spousal activities

What about Ann’s husband? The Code of Conduct governs law

clerks, but not their spouses. In a situation like this, Ann should,

to the extent possible, disassociate herself from her husband’s

political involvement. For example, Ann should not accompany

her husband to political meetings, and if he makes campaign

contributions, they should come from a separate bank account.
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 21

Ethics Checklist for Federal

Judicial Law Clerks

The checklist below will help you identify potential conflicts of

interest and other possible ethics concerns that may arise during the course of your clerkship. You should review the checklist, note applicable points, and discuss them with your judge.

Your judge may have stricter standards than required by the

Code or statute. If so, you must follow the policies of your chambers.

Potential conflicts

Do you have any of the following potential conflicts—

• personally own one or more shares of stock or some other

financial interest in a company?

• have an equitable interest (e.g., as a vested beneficiary)

in an estate or trust that has a financial interest in a company?

• serve as an officer, director, advisor, trustee, or active participant in the affairs of a company?

• serve as a fiduciary of an estate or trust that has a financial interest in a company?

• have a power of attorney that conveys an ownership interest in stock or other property?

Does your spouse, minor resident child, or other close relative

have any of the foregoing potential conflicts?

Actual conflicts

With regard to your potential involvement in a case before your

judge—

• do you have personal knowledge of disputed evidentiary

facts?

• have you previously served as counsel in the matter?

• has your previous or future law firm served as counsel in

the matter?

• are you a party?
22 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

• do you have an interest that could be substantially affected by the outcome?

• are you likely to to be a material witness?

• have you previously served in government employment

as counsel, advisor, or material witness in the matter, or

expressed an opinion concerning the merits?

With regard to the potential involvement in a case before your

judge of your spouse or any third degree relative of you or your

spouse, to your knowledge –

• is your spouse or relative a party or counsel in the matter?

• is your spouse’s law firm counsel in the matter?

• does your spouse or relative have an interest that could be

substantially affected by the outcome?

• is your spouse or relative likely to be a material witness?

Potentially inappropriate outside activities

Do you engage in any of the following activities—

• serve as a member or on the board of a professional or

law-related organization?

• serve as a member or on the board of a civic, charitable,

or social club?

• belong to an organization that litigates frequently in federal court?

• belong to an organization engaged in lobbying or political

activities?

• raise funds for your outside activities?

• engage in partisan political activities, either as a candidate or on behalf of others?

• engage in nonpartisan political activities, either as a candidate or on behalf of others?

With respect to law-related or other professional activities,

do you—

• speak, write, or teach on law-related subjects?

• speak, write, or teach on other subjects?

• practice law on a pro bono basis or otherwise?

• engage in any other law-related pursuits?
Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 23

With respect to outside employment, are you—

• engaging in paid outside employment for attorneys, law

firms, or others with an interest in your performance of

official duties?

• engaging in any other outside employment?

• applying to or interviewing with prospective employers

for a legal position?

• receiving offers of gifts or benefits from attorneys, law

firms, or others with an interest in your performance of

official duties?

Observing your judge’s requirements

Discuss with your judge any specific requirements he or she

may have as to the following:

dealing with the press, including—

• restrictions on any communications with the press

• procedures to follow when contacted by the press

• the availability of written guidelines for press inquiries

dealing with counsel, including—

• restrictions on any communications with counsel

• procedures to follow when contacted by counsel

case-related discussions with anyone outside chambers, including other law clerks

when seeking future employment—

• applying to or interviewing with prospective employers

before your clerkship ends

• using writing samples from your clerkship

• discussing your contributions to your judge’s work

• discussing your judge’s office procedures and proclivities

• accepting meals and other benefits given to candidates

during the interview process

• formally accepting a job offer before your clerkship ends

• accepting bonuses from a future employer before your

clerkship ends
24 Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

• working on matters handled by law firms with whom you

are seeking employment

engaging in outside employment during your clerkship for attorneys, law firms, or others with an interest in your performance of official duties

engaging in other forms of outside employment during your

clerkship

practicing law on a pro bono basis or otherwise

speaking, writing, or teaching on law-related subjects

engaging in professional, charitable, and other activities during

your clerkship, including—

• using office equipment and services

• engaging in such activities while on duty or in your workplace
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Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks

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