Ethics follow the dollars, as usual

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Published on 7/20/09

According to a recent story in The Boston Globe, dozens of law clerk job offers in the Massachusetts judiciary have been postponed or taken off the table altogether. This comes at the same time that large law firms have either halted hiring their 2009 class of associates, hired "deferred associates" at a lower level of compensation or created one-to two-year internal education programs that provide new lawyers a chance to really learn about the practice at reduced compensation. Still other firms are offering to pay their new hires reduced compensation, but only if they are employed by a public interest entity.

And here is where the woes of Big Law and the Massachusetts courts intersect: According to the story, some large law firms have offered these new lawyers to the judiciary to fill clerkship positions that are available because of the wage freeze.

However, before the judiciary could accept such a generous offer to the courts and the taxpayers, the offer had to pass ethics muster in case such employment might place the firm in a preferential position at a later time. Thus, a court committee suggested that a "disinterested" third party would deal with the law firms to supply the judicial interns.

As additional ethics "protection," neither judges nor staff would have contact with a contributing firm, interns would be forbidden to disclose the name of their contributing firm and the firms would be prohibited from disclosing either their participation in the program or the names of the lawyers whom they subsidize.

An ineffective 'shield'

It is questionable how effective such a shield would be. If the committee is concerned that the public image of courts might be tainted by the disclosure that private firms are participating in funding the clerks who help develop decisions, it seems to me that they have not succeeded in creating airtight security measures.

What if there might be a slip of the clerk's tongue or some reference to "the way my firm does it?" And what if an intern from one firm in one case is opposed by an intern from a different firm on the other side of the case? Will there be a battle between interns within the court system?

Even more significantly, in a very special matter, with high stakes either economically or otherwise, the proposed process probably does not build a high enough wall to prevent influence pedaling. That is particularly true for the clerk working for a legislative committee or influential government agency. How do we assure that the clerk will remain neutral when interacting with "friends" from the firm where they all once worked? Will neutrality be enough to prohibit managing an outcome desired by one's firm or client? Is this not "influence pedaling?" Isn't this why we have a publicly funded court system in the first place - to avoid such conflicts?

This entire discussion is based solely on money. The state lacks money to support a court system. Large law firms have money to invest in the training and education of new lawyers. And ethics concerns are brushed aside in the need to move economic issues in dispute toward resolution. So, it seems that ethics (and the rules of professional conduct) will follow the money, as they usually do.

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