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: Begging the Question

Airplane Novel Meets Real Life; or, A Lesson for Law Clerks

By "Milbarge" and "Fitz-Hume"

Via Howard at How Appealing, I discovered the amazing story behind some high-profile disbarments in Massachusetts. Part one of Howard's coverage is here, and part two is here. The basic deal is that there was this huge lawsuit over control of a family-owned grocery store chain, and the losing party was upset and suspected the judge was biased. A lawyer contacted that party and fed the bias belief. The lawyer offered to get to the "truth."

His brilliant plan (later picked up by another lawyer who was also disbarred) was to ply the judge's law clerk with a fictitious job offer, in the hopes of learning confidential information from the clerk. Then, the lawyer would either persuade the clerk to come forward accusing his former boss of bias, or the lawyer would blackmail the clerk into saying the right things. The scheme was devious and complex, involving secret recording, surveillance, phony business cards and phone numbers, "bracing," and pretty much no genuine concern for ethical obligations, or even common decency.

The whole thing is outrageous, but also sad. It's sad that these once-respected lawyers went so far over the line, and you have to wonder what caused their compasses to skew so badly. It's sad that the losing party was so consumed by the litigation that they couldn't believe they lost on the merits and were sure bias was the only possible answer. It's sad for the judge who got dragged through the mud during all this. And it's really sad for the clerk, who was guilty of bad judgment and probably revealing some confidences, but didn't deserve to be put through the wringer like he was.

This whole plot vaguely reminds me of the Brad Metzler thriller The Tenth Justice, about a Supreme Court clerk who gets tricked into revealing the outcome of a pending case, and then blackmailed to reveal more secrets. I wonder if the now-disbarred lawyer got his idea from that book.

This whole sordid mess is, of course, a good lesson for lawyers. (I read the bar disciplinary notices every month, just to scare myself. Note that the easiest ways to get in trouble with the bar are to mishandle client money or tell a client you did something -- like file an appeal on time -- and not do it. Those might not be the worst ethical sins in the world, but they seem the most likely to get you reported to the bar.)

But it's also a great lesson for law clerks. The takeaway is simple: Don't talk about what goes on in chambers. This is true for every situation outside of work, but especially apt for job interviews. Get your judge's permission before using any writing sample, and discuss with the judge what you should say about your contributions to that work product. Your clerkship is a selling point on your resume, and it's natural that prospective employers (and you) will want to talk about it. But keep in mind that some employers might think they're buying access to the judge, so be wary of offers that seem too good to be true ("I know you haven't even passed the bar yet, but we want you to sit second-chair at this big trial in front of your old judge!"), and don't give into the temptation to puff your role in chambers. This is true even if you clerked for one of those judges who let the clerks run everything. (And it's possibly most true if you were actually nothing more than a glorified cite-checker: it makes you look ethical while obscuring how minimal your contribution was!) If the interviewer demands more details about your contribution, tell the interviewer to call the judge and ask directly.

Legitimate employers will value your discretion. If you reveal secrets about your judge's deliberative process, what's going to stop you from revealing a client's trade secrets? Plus, to be cynical for a moment, one day soon maybe you'll ghost-write something a partner will put his or her name on; the partner won't want you going around town telling everyone it's your work.

Anyway, maybe some day some hapless law clerk will google "law clerk interview ethics" or some such and learn something. Better to start your career with an eye towards ethical behavior than end it with a scathing opinion affirming your disbarment.

Full post as published by Begging the Question on February 08, 2008 (boomark / email).