Law Clerks and Book Proposals
There’s a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors — two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks “are uniquely suited to moderate this debate,” having “spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”
My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:
A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.
So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing “confidential information received in the course of official duties . . . for personal gain”? Second, even if not, aren’t we opening a can of worms if clerks start using their position to hawk book deals? Third, although we’ll probably have no sense of the answer, does their judge know, and if not, shouldn’t s/he?
UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I’m not sure that changes the issue, but wanted to clarify the original content.