Joining Case In Front Of Clerkship Judge Forum

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Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 3:17 am

I'm a current associate who was fortunate enough to secure a clerkship starting next year. My firm doesn't even know that I have been applying for clerkships, much less that I have accepted one, and I'd like to keep it that way for as long as I can. I had been hoping to break the news 2-3 months before the clerkship start date, but recent events have jeopardized that. A partner I work with has indicated that they want to add me to a case team for a case that is currently being litigated in front of my judge. My joining the team hasn't been finalized yet, so how should I be handling this? Should I beg the partner to be left off the case for some unspecified personal reason? Do I break the news now, more than a year before the clerkship start date, and let that hang over me for the rest of the time? Should I contact my judge about this?

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 4:50 pm

I would do nothing and allow yourself to be added to the case. You have no ethical responsibility to the judge because you don't work for him. If you think that your ability to zealously advocate for your client will be affected, that's a different story, but idk why it would be.

In practice, you'll simply be conflicted off the case when you go to the clerkship. Frankly, many judges would have already conflicted you off the case because you worked for the firm in the first place.

If you must, you can let the judge know you'll be before him and ask if he has a problem with that.

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 8:15 pm

Tell your firm. Full stop. Anything else risks your position at the firm and with the judge.

My firm had a policy that you couldn’t be on cases in the court of the judge you were heading to. My judge went out of his way to avoid even the appearance of conflicts. Don’t create problems for yourself. Firms know people go clerk. They don’t care and probably hope you come back. Just tell them.

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 10:26 pm

Tell your firm. Recently, Sonos came close to asking Judge Alsup in NDCal to recuse himself because his clerk worked for Google, the opposing party, and as a summer associate for Quinn Emanuel, the opposing counsel. I think things worked out fine for the clerk, but it was a very public and ugly dustup.

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 10:44 pm

I strongly urge you to tell your firm. You don't have a hope of hiding this - your judge (or the clerks) will see your name on the docket. If you don't, and the other side finds out, they could move to recuse the judge (making you look bad) or argue it on appeal (do you really want your name and future employment to be an argue to reverse your judge?) Trust me - you don't.

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Mon Jul 04, 2022 11:20 pm

I think this is probably going to vary from firm to firm and judge to judge on how it's handled. Just to add a counterpoint, but not the definitive word by any means, I know someone who argued a case before their judge before their clerkship started and it was a non-issue, I know another clerk whose judge just doesn't have them work on anything their prior firm brings. People practice in front of their judges all the time, idk what OP has to do for sure but I don't think they're risking their position at the firm and with the judge

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Tue Jul 05, 2022 11:27 am

Anonymous User wrote:
Mon Jul 04, 2022 11:20 pm
I think this is probably going to vary from firm to firm and judge to judge on how it's handled. Just to add a counterpoint, but not the definitive word by any means, I know someone who argued a case before their judge before their clerkship started and it was a non-issue, I know another clerk whose judge just doesn't have them work on anything their prior firm brings. People practice in front of their judges all the time, idk what OP has to do for sure but I don't think they're risking their position at the firm and with the judge
Did any of these folks actively hide information though? OP is talking about hiding information.

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Re: Joining Case In Front Of Clerkship Judge

Post by GoneSouth » Tue Jul 05, 2022 11:43 am

Will the judge know you’re on the case? Will your name be on filings, will you enter an appearance, etc.? Because if so, there’s a chance the judge may raise this sua sponte, and that’s probably the last way you want your firm to find out

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Re: Joining Case In Front Of Clerkship Judge

Post by Skool » Tue Jul 05, 2022 11:51 am

There is a lot of bad advice in this thread, some by people who don't seem to understand how big firms work, and some who don't understand how clerkships work.

OP, I understand why you don't want to tell your firm about your clerkship. No matter what level of seniority you're at, it can effect your relationships and the kinds of cases you're staffed on and the experience you get during your remaining time if people know you're leaving. You should try to avoid telling your firm if you can, despite what folks on this thread are saying.

That said, for reasons you seem to understand (to your credit), you shouldn't work on a matter as a lawyer that is currently in front of your future judge. You should employ the standard associate tools to try and avoid getting put on the matter--for example, can you credibly tell the partner you're too busy to join his new matter? But if push comes to shove and you can't avoid getting put on the matter, just tell the partner you can't join the case because you're clerking for the judge. He'll understand, and you'll have shown your cards to your firm, and you won't be able to control how the firm uses the info, but you'll have done right both by your judge, the firm, and your client.

But in pretty much no event should you involve your judge in this. Your judge doesn't care about routine staffing issues in your firm. Just know that your judge likely doesn't want you working on a case in front of him but doesn't really care about the internal maneuvering you have to do to avoid the situation, as long as what you do is ethical and doesn't call into question the appearance of their impartiality toward the parties.

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Tue Jul 05, 2022 11:53 am

I would not risk it. It's possible your name never makes it onto any pleadings and you never attend any hearings/depositions depending on your seniority level but you don't want to risk even the appearance of impropriety as a future judicial staff member. Just tell the partner (i) you are too busy to take on another matter, (ii) you have some ethical reason why you can't take on this matter (I've seen this excuse work before), or (iii) some other random excuse (need to temporarily lower your hours for mental health, family commitments, etc.).

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Re: Joining Case In Front Of Clerkship Judge

Post by Pneumonia » Tue Jul 05, 2022 8:02 pm

You need to tell your firm ASAP. Beyond the reasons listed above, the firm will question your judgment for not disclosing this (once it comes out).

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Tue Jul 05, 2022 8:55 pm

Also like I think you may be overrestimating how "bad" it will be for you if they know you're leaving in a year. Many people at my firm are leaving in a year or two for clerkships and no one really treats them that differently. This is under the assumption you are a junior like 1 to 2 years in.

Edit: accidentally wrote underestimating instead of overestimating
Last edited by Anonymous User on Wed Jul 06, 2022 6:49 am, edited 2 times in total.

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Re: Joining Case In Front Of Clerkship Judge

Post by GoneSouth » Tue Jul 05, 2022 11:49 pm

I agree with the last point. If you’re at a respected firm, they might be annoyed on the inside you’re leaving to clerk but people will at least pretend to be happy for you and nobody is going to make your life miserable because of it.

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Re: Joining Case In Front Of Clerkship Judge

Post by Skool » Wed Jul 06, 2022 2:21 am

They may even be genuinely happy for you, but they will also say, “why do I want to staff OP on this interesting matter when I’m just going to have to restaff and retrain someone else once OP leaves to clerk. The matter will outlive OP at the firm, so May as well get someone else staffed and give them the training and opportunity.”

Doesn’t mean anyones trying to ruin OP’s life, but associates are fungible and that can hurt OPs development at the firm. Obviously, this isn’t as big of a deal as OP drawing a recusal motion targeting his judge because he’s trying to keep his cards close to his vest.

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Re: Joining Case In Front Of Clerkship Judge

Post by Jchance » Wed Jul 06, 2022 12:46 pm

Skool wrote:
Tue Jul 05, 2022 11:51 am

you shouldn't work on a matter as a lawyer that is currently in front of your future judge. You should employ the standard associate tools to try and avoid getting put on the matter--for example, can you credibly tell the partner you're too busy to join his new matter? But if push comes to shove and you can't avoid getting put on the matter, just tell the partner you can't join the case because you're clerking for the judge. He'll understand, and you'll have shown your cards to your firm, and you won't be able to control how the firm uses the info, but you'll have done right both by your judge, the firm, and your client.

But in pretty much no event should you involve your judge in this. Your judge doesn't care about routine staffing issues in your firm. Just know that your judge likely doesn't want you working on a case in front of him but doesn't really care about the internal maneuvering you have to do to avoid the situation, as long as what you do is ethical and doesn't call into question the appearance of their impartiality toward the parties.
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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Wed Jul 06, 2022 9:35 pm

OP here, thanks for everyone's comments so far. I got some interesting clarification recently from the partner. Apparently we're not actually representing one of the litigants in the case, but rather a third party from whom the parties have requested discovery. Does that affect anything?

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Thu Jul 07, 2022 2:18 pm

The prevailing opinion seems to be that OP should disclose, but since it appears that neither the firm or judge have explicitly instructed them to disclose in such a situation (directly or through a policy), what judicial canon or ethical responsibility would they be violating if they remained silent? I am genuinely curious.

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Re: Joining Case In Front Of Clerkship Judge

Post by nixy » Thu Jul 07, 2022 2:45 pm

Anonymous User wrote:
Thu Jul 07, 2022 2:18 pm
The prevailing opinion seems to be that OP should disclose, but since it appears that neither the firm or judge have explicitly instructed them to disclose in such a situation (directly or through a policy), what judicial canon or ethical responsibility would they be violating if they remained silent? I am genuinely curious.
I don’t have the judicial canon to hand, but presumably the potential appearance of impropriety, arising from concerns about a conflict of interest. No, I don’t think that in reality a judge is going to rule a particular way in a case just because someone who’s going to clerk for them in a future term has their name on that case, but the relationship could appear to suggest a possible impropriety. (To be clear, I haven’t researched this in the slightest and don’t know for certain that this would play out in favor of disclosing, but I think this is the primary area of concern.)

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Re: Joining Case In Front Of Clerkship Judge

Post by Skool » Thu Jul 07, 2022 2:47 pm

Anonymous User wrote:
Thu Jul 07, 2022 2:18 pm
The prevailing opinion seems to be that OP should disclose, but since it appears that neither the firm or judge have explicitly instructed them to disclose in such a situation (directly or through a policy), what judicial canon or ethical responsibility would they be violating if they remained silent? I am genuinely curious.
It really doesn’t matter if such a canon exists. The main norm of clerking is “protect the judge.” If it gets out that op is working on a matter pending in front of his future judge, some pissed off litigant could move for recusal. Will the motion be successful? I doubt it. But lawyers file BS motions all the time. But the judge and OP will be embarrassed and have their fairness/impartiality/ethics questioned.
Anonymous User wrote:
Wed Jul 06, 2022 9:35 pm
OP here, thanks for everyone's comments so far. I got some interesting clarification recently from the partner. Apparently we're not actually representing one of the litigants in the case, but rather a third party from whom the parties have requested discovery. Does that affect anything?
Not really. Seems like the kind of thing that could end up with a motion to compel/quash etc. where you’re in front of the judge. You can’t really control how the case develops, don’t go down that path, nip it in the bud treat this like a bright line rule if the matter is in any way in front of your judge. Don’t join the case, or alternatively, disclose to the partner.

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Re: Joining Case In Front Of Clerkship Judge

Post by GoneSouth » Fri Jul 08, 2022 9:38 am

I’m interested to know why you don’t want to tell your firm. Do you have any interest in going back there after the clerkship? If so, they’re going to know you got this offer well before the clerkship started and didn’t tell anyone at the firm—which isn’t a great look. If you don’t have any interest in going back, what’s the downside to telling them? They’re not going to fire you

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Re: Joining Case In Front Of Clerkship Judge

Post by Anonymous User » Fri Jul 08, 2022 11:21 pm

Clerking 1-2 years after you start is incredibly common. No one at my firm who clerked in that time frame was given bad assignments because they were going to be leaving. The firm anticipated that a large number of these folks would return and they wanted them trained.

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