Clerking Forum

[mightymouse23]

If you accept a position at a firm but have a 1 yr clerkship lined up and the firm knows it from the start and is fine with deferring your start for a year, will the firm typically still provide you with the same summer stipend they give to other incoming associates who aren't clerking but will be starting in the fall per usual?

[rpupkin]

If you accept a position at a firm but have a 1 yr clerkship lined up and the firm knows it from the start and is fine with deferring your start for a year, will the firm typically still provide you with the same summer stipend they give to other incoming associates who aren't clerking but will be starting in the fall per usual?

Is your judge fine with this? Anything that suggests an ongoing relationship with a law firm is a big no-no, particularly if there's a chance your firm will appear before the judge. Many firms will reimburse you for bar expenses after your clerkship, when you officially start working at the firm. Normal practice would be to get reimbursement then--from whatever firm you end up at post-clerkship.

As always, you should check with your judge. In general, though, most judges would forbid an incoming clerk from accepting a stipend (or any other form of compensation) from a law firm in these circumstances.

[mightymouse23]

Good to know. I was just curious. I'm a rising 2L so it is a while before I'd get to that point.

[Anonymous User]

The only real answer to this is "ask your judge."

EDIT: I'm not sure that the above poster is correct that "most judges" would prohibit accepting bar expenses or a signing bonus. As far as I can tell, Advisory Op. 83 from the Committee on Codes of Conduct (in the Guide to Judiciary Policy, vol. 2, which you can find easily via Google) specifically says that unconditional signing bonuses and unconditional bar expense reimbursements are OK from a federal-law-and-ethics-rules perspective. Individual judges set their own policies on these issues, but preventing clerks from accepting bar expense reimbursements and signing bonuses is supererogatory. So the above poster who is saying that this stuff is a big no-no is overstating the case somewhat.

[Backpacker]

If you accept a position at a firm but have a 1 yr clerkship lined up and the firm knows it from the start and is fine with deferring your start for a year, will the firm typically still provide you with the same summer stipend they give to other incoming associates who aren't clerking but will be starting in the fall per usual?

Most firms will not. Mine paid for the bar and such, but rolls over the stipend into the clerkship bonus I will get when I come to the firm.

[bruinfan10]

The only real answer to this is "ask your judge."

EDIT: I'm not sure that the above poster is correct that "most judges" would prohibit accepting bar expenses or a signing bonus. As far as I can tell, Advisory Op. 83 from the Committee on Codes of Conduct (in the Guide to Judiciary Policy, vol. 2, which you can find easily via Google) specifically says that unconditional signing bonuses and unconditional bar expense reimbursements are OK from a federal-law-and-ethics-rules perspective. Individual judges set their own policies on these issues, but preventing clerks from accepting bar expense reimbursements and signing bonuses is supererogatory. So the above poster who is saying that this stuff is a big no-no is overstating the case somewhat.

I'm not sure you're right. First, the policy before all else is check with your judge. Second, the Federal Judicial Center's "Ethics for Judicial Law Clerks" handbook indicates under the "Gift" section that what you've described could create a number of conflicts problems.

[grand inquisitor]

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[Anonymous User]

The only real answer to this is "ask your judge."

EDIT: I'm not sure that the above poster is correct that "most judges" would prohibit accepting bar expenses or a signing bonus. As far as I can tell, Advisory Op. 83 from the Committee on Codes of Conduct (in the Guide to Judiciary Policy, vol. 2, which you can find easily via Google) specifically says that unconditional signing bonuses and unconditional bar expense reimbursements are OK from a federal-law-and-ethics-rules perspective. Individual judges set their own policies on these issues, but preventing clerks from accepting bar expense reimbursements and signing bonuses is supererogatory. So the above poster who is saying that this stuff is a big no-no is overstating the case somewhat.

I'm not sure you're right. First, the policy before all else is check with your judge. Second, the Federal Judicial Center's "Ethics for Judicial Law Clerks" handbook indicates under the "Gift" section that what you've described could create a number of conflicts problems.

Same anon.

1) I agree that the best policy is to check with your judge. Note, for example, that my earlier posts begins with the sentence "The only real answer to this is 'ask your judge.'"

2) The Gifts section in the Ethics for Judicial Law Clerks handbook begins with the sentence "The ethics rules place restrictions on the kinds of gifts you may receive during your clerkship." (emphasis added). It does not purport to discuss what a future clerk can or can't do. It closes with a list of references for more specific ethics guidance for situations not discussed in the handbook, including a reference to Advisory Op. 83 regarding payments from law firms to future law clerks. As I said in my prior post, Advisory Op. 83 appears to specifically bless the sort of legally unconditional bar expense reimbursement and signing bonus payments made prior to the beginning of a judicial clerkship that the OP was asking about. It also says, as I noted, that individual judges are free to set their own personal policies imposing more stringent requirements on their own clerks.

So again, ask your judge. But unless my reading comp skills have failed me, Advisory Op. 83 means that your judge is free to allow you to accept whatever legally unconditional payments the firm wants to make by way of bar expenses, signing bonus, etc. prior to the beginning of your employment as a law clerk.

[rpupkin]

So again, ask your judge. But unless my reading comp skills have failed me, Advisory Op. 83 means that your judge is free to allow you to accept whatever legally unconditional payments the firm wants to make by way of bar expenses, signing bonus, etc. prior to the beginning of your employment as a law clerk.

Yeah, I think your reading comp skills are failing you a bit. I'm not sure where you're finding authority for the idea that one could accept a firm "signing bonus" for post-clerkship employment prior to the beginning of a clerkship.

As for bar expenses, you're right that the rules permit a clerk to accept the "legally unconditional" payment of bar expenses. But is it common for firms to pay a future associate's bar expenses unconditionally? At my firm, you had to reimburse your firm for those expenses if you didn't actually start work as an associate at the firm. I believe that's a standard condition. Is your firm different?

Also, the OP mentioned a "summer stipend." Many firms treat stipends as salary advances, and the ethics guidelines specifically prohibit salary advances.

[Anonymous User]

So again, ask your judge. But unless my reading comp skills have failed me, Advisory Op. 83 means that your judge is free to allow you to accept whatever legally unconditional payments the firm wants to make by way of bar expenses, signing bonus, etc. prior to the beginning of your employment as a law clerk.

Yeah, I think your reading comp skills are failing you a bit. I'm not sure where you're finding authority for the idea that one could accept a firm "signing bonus" for post-clerkship employment prior to the beginning of a clerkship.

I'm finding authority for it in Advisory Opinion 83, which says that "The Code of Conduct for Judicial Employees applies only to “employees of the Judicial Branch,” not to prospective employees. Similarly, 5 U.S.C. § 7353 applies only to “employees” of the judicial branch. Accordingly, a prospective law clerk is not prohibited from accepting a payment from a law firm before the beginning of the clerkship, provided that the law clerk is not legally obligated to repay the firm." This about one paragraph down from language that makes it clear that "signing bonuses" are part of what the ethics panel is talking about in the just-quoted language.

As for bar expenses, you're right that the rules permit a clerk to accept the "legally unconditional" payment of bar expenses. But is it common for firms to pay a future associate's bar expenses unconditionally? At my firm, you had to reimburse your firm for those expenses if you didn't actually start work as an associate at the firm. I believe that's a standard condition. Is your firm different?

Advisory Opinion 83: "Reimbursement for Bar-Related and Relocation Expenses: The Committee observes no problem with law clerks accepting reimbursement for relocation or bar related expenses from a future employer, whenever that reimbursement is received. Prospective judicial employees are not covered by the Code, so the acceptance of reimbursement before the clerk begins work for the judge would not be prohibited. With regard to accepting such reimbursement payments during the clerkship, the Judicial Conference Gift Regulations, § 5(b)(6), specifically permits a judicial employee “who has obtained employment to commence after judicial employment ends” to accept “reimbursement of relocation and bar-related expenses customarily paid by the employer, so long as conflicts of interest are avoided.” Judicial Conference Gift Regulations § 5(b)(6) (Guide to Judiciary Policy, Vol. 2C, § 620.35(b)(6))."

So actually I think my previous statement was too restrictive regarding unconditionality (for bar expenses). (Though maybe the "conflict of interest" language means only unconditional?)

But my sense is that many -- most? -- firms implicitly or explicitly expect you to repay the Barbri/registration fee money if you don't come work for them, but don't actually force you into a legally binding obligation to repay. Mine didn't, at least (though of course I would in fact pay the money back out of moral obligation if I didn't go work for them).

Also, the OP mentioned a "summer stipend." Many firms treat stipends as salary advances, and the ethics guidelines specifically prohibit salary advances.

You're correct about salary advances (and I haven't argued to the contrary).

Like I keep emphasizing, the most important thing here is to ask your judge. But I am relatively certain that I'm right on what the judge is free to allow you to do.

[CanadianWolf]

Looks like a potential conflict of interest that should prevent you from working on any matter that comes before your judge & involves your future employer which has paid a stipend to you.

[Anonymous User]

Looks like a potential conflict of interest that should prevent you from working on any matter that comes before your judge & involves your future employer which has paid a stipend to you.

That's actually a separate issue that's covered by Advisory Op. 74, in relevant part: "The Committee advises that such a circumstance does not in itself mandate disqualification of the judge. The law clerk, however, should have no involvement whatsoever in pending matters handled by the prospective employer. The Committee believes that the need to exclude the law clerk from pending matters handled by the prospective employer arises whenever an offer of employment has been extended to the law clerk and either has been, or may be, accepted by the law clerk; the formalities are not crucial."

So you're already disqualified from working on anything involving a future employer, regardless of any of the above-discussed money issues.