September 1, 2009 12:08 PM

Massachusetts, New York: Deferred Can't Work as Clerks

Posted by Zach Lowe

In early June, we told you how a Massachusetts judicial ethics panel gave its preliminary approval to a program allowing deferred Am Law 200 associates to work as clerks in the state trial court system. The program was intended to help overburdened judges and give the deferred a way to get solid public experience on their (potential) firm's dime. 

Well, that's not happening after a separate ethics panel in Massachusetts shot the program down, according to the Boston Globe. The state Ethics Committee, in an unpublished opinion, recommended against the program, and that recommendation apparently trumps an earlier thumbs-up from the state's Committee on Judicial Ethics, according to the Globe. 

As we reported, some legal ethics gurus wondered about the appropriateness of deferred associates working for judges while earning a paycheck from a large law firm--a firm that would, presumably, appear at some point before that very judge. 

State officials crafted a double-blind plan they hoped would resolve those conflicts. A nonprofit would match the deferred associates with judges, who would never know which law firm was paying the associate during his or her clerkship. In fact, even the nonprofit organizing the program (the Flaschner Judicial Institute in Boston) wouldn't know which firm had deferred the associate. The associates, in turn, would have to inform the judge of a conflict if their firm ever appeared before the judge, but they would have to do so without revealing the exact nature of that conflict. 

Those safeguards were apparently not enough for the Ethics Committee, the Globe says.

One other note: In June, we reported that the New York Advisory Committee on Judicial Ethics had issued an opinion approving a similar clerkship program for deferred Am Law 200 associates in New York. On closer inspection, that opinion applies only to unemployed recent law school graduates and lawyers recently terminated from law firms--not to deferred associates drawing a stipend from a firm. 

The state has no plans to allow for deferred associates receiving a law firm stipend to work as clerks in the state's trial court system, according to a spokesman for the state's Office of Court Administration. 

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