Hiring former federal appellate clerks raises special ethical issues

Former federal appellate clerks are among the most sought after new hires in the legal market. In addition to having excelled in law school, federal appellate clerks have the opportunity to receive one-on-one training and mentorship from federal appellate judges. Former clerks and the law firms that hire them, however, must be aware of rules that preclude these clerks from working on matters that were pending during the clerks' clerkship terms. In the eyes of courts, these rules "preserve the image of the Court as an institution free from any doubt as to the propriety of the actions taken by its former employees." See In re Violation of Rule 50, 78 F.3d 574, 575-76 (Fed. Cir. 1996) (en banc). Thus, courts may react strongly to a former clerk's failure to abide by such rules. Indeed, failure to be vigilant with respect to these rules may create a risk of sanctions to the firm and potentially even consequences for the client.

Special ethical rules govern the conduct of federal appellate clerks even after their employment with the court has ended. For example, the 8th U.S. Circuit Court of Appeals' local rules prohibit former court employees, including former law clerks, from participating in or appearing as an attorney in any case that was pending in the court during the employee's term of service for a period of one year after the employee leaves court employment. See Local Rule 47G. The 1st Circuit has a nearly identical rule. See Local Rule 46E. In the 9th Circuit and the Federal Circuit, former court employees are prohibited from assisting in any case that was pending in the court during the employee's period of employment with the court. See Circuit Rule 46-5; see also Circuit Rule 50. Notably, the 9th and Federal Circuit's rules are not limited in duration. Id. In the 9th Circuit, however, former court employees may apply to the court for an exemption from the rule by demonstrating that they had no involvement with the case in question and were not employed in the chambers of any judge who participated in the case in question during their period of employment with the court. Id.

While there is little decisional law interpreting the rules that govern the conduct of former law clerks, two opinions issued by the Federal Circuit addressing violations of that court's Rule 50 illustrate the importance of compliance with these rules.

In relevant part, Rule 50 provides that "no employee of the court may engage in the practice of law. No former employee of the court may participate or assist, by representation, consultation, or otherwise, in any case that was pending in the court during the period of employment." In In re Violation of Rule 50, the Federal Circuit admonished a law firm for failing to put procedures in place to safeguard against Rule 50 violations. See 78 F.3d at 576. The violation involved a former law clerk who participated in writing a petition for rehearing in a matter that had been pending before the court during his clerkship term. (The judge for whom the clerk had worked was not on the panel assigned to hear the case.) When the clerk realized what had happened, the law firm promptly notified the court and followed up with a letter and declarations explaining the circumstances surrounding the violation. The court then issued an order to show cause as to why the law firm's petition for rehearing should not be rejected. While the court ultimately accepted the petition, the court criticized the former law clerk and his firm for failing to put procedures in place to guard against a Rule 50 violation. The court noted that the violation was particularly inexcusable since the court provides each departing clerk with a list of all cases pending during the clerk's employment to assist with compliance. Ultimately, the court declined to punish the firm (or its client) because the violation was inadvertent and did not cause prejudice to the other party, the law firm had acted promptly to disclose the violation, and it was a question of first impression as to what consequences would befall someone who violated the rule. However, the court warned that "appropriate sanctions may be expected if a future violation of Rule 50 occurs."

Sixteen years later, the court again confronted a violation of the same rule. In that case, the court cautioned law firms against relying too heavily on internal conflicts systems which have the potential for mistakes. See In re Violation of Rule 50, 502 F. App'x 981 (Fed. Cir. 2013). As in the earlier case, in this case, a former law clerk provided advice on a brief concerning a matter that had been pending during the clerk's employment with the court. When it discovered the violation, the law firm brought it to the court's attention and explained that although the former law clerk had submitted his disqualification list to the firm's conflicts team, that team inadvertently failed to identify the particular matter at issue on the relevant conflicts report, so the matter did not get caught when compared to the clerk's list. While it did not levy sanctions, the court held that "a strong admonishment for the attorneys involved" was necessary. The court further held that "practicing attorneys rely on [] [conflicts] reports at their own peril, and understand that firm negligence may affect client outcomes when there is an appearance of prejudice." The court urged former law clerks to "take responsibility to discover conflicts beyond generalized conflicts reports."

Responsibility for complying with the rules governing the conduct of former law clerks falls on both former law clerks and on the law firms that hire them. While law firms should have the appropriate procedures in place to safeguard against violations, former law clerks must also independently assess the propriety of their involvement in a given matter. While compliance with these rules may seem simple, law firms and former clerks should both take great care in implementing the appropriate safeguards because the consequences of noncompliance with these rules may be severe. While the Federal Circuit did not take adverse action in the cases discussed, the decisions discussed both contemplate not just sanctions against the firm but even consequences that could impact the firm's client.

Finally, in the unfortunate event that a former clerk does violate an applicable rule, the law firm and clerk should be proactive in notifying the court of the violation and in explaining the circumstances surrounding the violation. In particular, practitioners should explain how the violation occurred and attempt to demonstrate that any violation that occurred did not harm or prejudice the other party.

Amy L. Bomse is a partner in the litigation practice group at Arnold & Porter LLP where she focuses primarily on representing lawyers and law firms in litigation. She has defended lawyers in malpractice and breach of fiduciary duty claims as well as motions to disqualify. She is frequently called upon to provide advice on compliance with legal ethics including conflicts of interest.

Puja A. Mehta is an associate in the litigation practice group at Arnold & Porter LLP. She maintains a general litigation practice involving a broad range of business disputes.