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Tuesday, March 20, 2007

Closed Chambers? Not Exactly

A curious story in the New York Times today, in the business section.  The story recounts State Farm's plan to work through state regulatory channels to reopen Katrina-related insurance claims rather than through the federal district court judge (L.T. Senter Jr.) with carriage of a related case in which a settlement plan has been languishing.  What I found interesting was not those details, but the fact that the story quotes an anonymous "clerk."  Here's the key excerpt:

Judge Senter would not comment yesterday. One of his clerks, speaking on condition of anonymity because he does not want to become part of the public debate, suggested that the judge cared more about resolving the case than who was supervising it. “The judge is all for anything and anyone who wants to move these cases toward resolution,” the clerk said. But, he added, the judge could still call both sides back into court.

Now, I don't know whether the person quoted is a law clerk to Judge Senter.  I suppose it could have been the clerk of court, or just a poor use of the word "clerk," though when I see the possessive -- "one of his clerks" -- I tend to assume the person is a law clerk.  Nor do I know whether the clerk in question, assuming the attribution is genuine and it is a law clerk, is a short-timer or a career law clerk.  But it is a rarity to see a law clerk to a federal judge quoted talking about an ongoing case, even anonymously.  It tends to leave rather a bad taste in my mouth.  I'm not a Kozinskiesque insister on lifelong silence from law clerks -- my somewhat fence-straddling view is that law clerks should take their obligation of confidentiality very seriously and maintain it during and for quite some time after their clerkships, but that eventually the interests of history may outweigh the sanctity of that vow.  (None of which, to my mind, excused the law clerks who chose to talk to Vanity Fair relatively soon after the Bush v. Gore case, and whose justifications for doing so seemed to me to be both insufficient and melodramatic.)  But during the pendency of a case?  No way -- even for such an innocuous quote as this.

I haven't done the spadework to determine whether any canon of judicial ethics could conceivably cover such a situation; comments are welcome.  Given the small staffing of the chambers, I should think it would not be difficult for a judge to investigate such a "leak."  But, of course, that raises the possibility -- the likelihood? -- that it was not really a true leak, and that the clerk spoke with his/her judge's permission.  And that raises another interesting question: if a judge orders a law clerk to communicate anonymously with the press concerning a pending case, must/should the law clerk refuse to follow the judge's order?

Comments are welcome.  Please phrase your answers in the form of a question.   

Posted by Paul Horwitz on March 20, 2007 at 10:35 AM in Current Affairs | Permalink


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Canon 3(A) says: "A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control." The commentary further explains: "The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities. A judge should make reasonable efforts to ensure that this provision is not violated through law clerks or other staff personnel." See http://www.uscourts.gov/guide/vol2/ch1.html

I read these provisions to ban the type of comment that was made here. Arguably the comment wasn't directed to the "merits" of the case, but I think the rule must be read more broadly, as applying to the merits of a potential procedural issue that will come up as well as the ultimate merits of the case itself. Moreover, the canons make clear that the judge is responsible for supervising his clerks' interactions with the press.

When I was clerking, my judge made very clear to us the rules for speaking to reporters. First of all, we were not to say anything about any case without clearance from him. Second, to the extent that he permitted us to call a reporter back and give information, we were limited to providing the reporter with information that was in the public domain -- letting the reporter know when arguments were scheduled, providing copies of already filed briefs, etc. The closest we could come to providing the judge's views on any topic was to point a reporter to public statements the judge had already made on the subject, e.g. in a transcript. It would certainly have been out of bounds to state what considerations were in the judge's mind.

Posted by: formerclerk | Mar 20, 2007 12:21:59 PM

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