May 05, 2007

posted by Steve Vladeck

I'm not sure I see this as problematic - there's no indication that they're using their inside information to write the book. They're merely using their credentials to boost their chances of getting a book deal. It's not much different from saying, "I'm a professor at Yale Law School, and I want to write a book about x."

The version of the email I've seen even includes as a contact number their courthouse phone number.

Judge Randolph, for whom these guys clerk (according to http://www.derekdsmith.com/bio.html) should be horrified.

There are three possibilities:

(1) These guys are geniuses who were the first to realize that clerking during high-profile cases can be ethically used as a great promotional tool. (Unlike those clerks who worked on high-profile abortion or affirmative action cases of the past, who despite their appellate clerkships were too slow to realize how useful that could be to them.)

(2) These guys are unethical.

(3) Ethical norms have changed, at least for their subgroup -- perhaps 9/11 did really change everything, and this is "effical" as the Daily Show might put it.

I think #2 is the most likely.

Here's an alternative theory:

(4) Their academic records notwithstanding, those two are utter dumbasses.

[I]s 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'?

If it is, then engaging in a job search while clerking also is, so I would think the answer is no.

The more troubling question relates to the provision just before that, requiring clerks to "avoid making public comment on the merits of a pending or impending action." It's hard to see how they're going to cover the topic without touching on the merits of cases currently before the D.C. Circuit.

Beyond that, I don't see any problem with clerks getting book deals. Suppose it was a book on habeas during the Civil War? Wouldn't that be OK?

Given that one of them is currently a clerk for Judge Randolph, then either:

1. He worked on the Boumediene/Al-Odah case (or other detainee habeas cases) while preparing to write, writing, or peddling a book involving issues respecting habeas relief by detainees -- which is extraordinarily troublesome from an ethical standpoint; or

2. He *didn't* work on the Boumediene/Al-Odah or related cases -- which would remove many of the ethics concerns, but would make the claim in his book proposal that he is "uniquely suited" to speak to these issues because of his experience in the DC Circuit wildly misleading.

In other words, the only way he isn't acting unethically is to have had absolutely no involvement in the very matters that the proposal claims gives him unparalleled expertise. Either he's unethical or he's lying.

I can't imagine Judge Randolph gave his blessing to something like this.

Former SCOTUS and DC Circuit clerk: You claim option #1 is "extraordinarily troublesome from an ethical standpoint." Do you also agree that it doesn't necessarily spell out a breach of any ethical duty?

Court opinions, briefs, related records, and relevant positive legal sources are normally in the public domain and therefore cannot contain confidential information. A non-clerk (e.g., a law student) could spend thousands of hours reading and theorizing about these public sources and incorporate his research into a book. Does Canon 3D prevent a law clerk from doing the same thing? As I read the Canon, a clerk could do the same thing, as long as he doesn't use confidential information.

Thus, the clerk here could (a) act ethically, and (b) be involved in cases on the subject in which he claims expertise, as long as (c) he doesn't divulge/profit from confidential information. Under these conditions, he could be ethical and truthful.

To be clear, I agree it's troublesome, but not necessarily an ethical violation.

The email I have seen says that it is an edited volume, a collection of essays from OTHER writers. That is, they don't plan to write themselves, but only to collect pieces from others. I can't see any problem with this.

The reaction will depend on what they write. If they bash the Bush Administration, the ABA and down the line will ignore any potential ethical problems. Or, if they write anything that would support the Bush Administration position, they'll get harahgued to no end. And, if they aren't members of a state or D.C. bar yet, if they plan to write anything that would support Bush they had also start learning about the Matthew Hale denial of admission to the Illinois bar, because any pro-Bush writing will be treated on par with that piece of you-know-what Hale.

It's interesting to contrast this case with that of Chambermaid, which is being promoted as a kind of Devil Wears Prada fictionalization of life as a law clerk to a sociopathic appellate judge. Chambermaid's dust-jacket copy explicitly says that it "breaks the code of silence surrounding the clerkship."

As long as they don't reveal anything confidential, such as the internal deliberative processes of the court, there is nothing wrong with them hawking a book that will deal with PAST cases. They probably ARE better suited than most people to opine on this subject, having done a great deal of work on the issue at hand over the last year or so.

The problem will come if they plan to continue in their current clerkships-- the issue is sure to return to the court, perhaps with some of the same litigants in still-pending cases, and so it's impossible for the discussion in the book to avoid this prospect. This would probably violated 3D.

The only thing I can figure is that these guys are at the end of their previously-planned clerkship term and wanted to cash in on their work in a celebrated case as they start academic careers. I'm sure the judge is unhappy.

These are not former clerks (apparently), and the Gitmo cases are not closed. The Boumediene and Al Odah appeals are still pending before Judges Randolph, Sentelle and Rogers. The mandate has not issued in Boumediene, and there is a motion pending before the panel to continue to withhold the mandate pending the detainees' "exhaustion" of their Detainee Treatment Act remedies. What we have here, therefore, are current clerks working on a live case and seeking a book deal in which they will "moderate a debate" about the issues now pending before their judge.

LMN: The magic phrase in your response is "moderate a debate." The canons don't prohibit moderating debates; they ban disclosing or profiting from confidential information.

The clerks are approaching an ethical gray area--a move that will harm their reputation and possibly sour their relationship with their judge(s). However, as I wrote earlier, they could quite easily proceed with their plan without violating any ethical duty.

It seems that this post has gotten noticed in the Judge's chambers:

http://legaltimes.typepad.com/blt/2007/05/the_book_flap.html

LOL, the Legal Times point that the two men "forgot" to tell their judge -- and withdrew the proposal once he found out -- may make this story worth a follow-up post.

http://legaltimes.typepad.com/blt/2007/05/the_book_flap.html

This passage reminded me of people who defend AutoAdmit's Ciolli, and how they miss the ethical forest for the legal technicality trees:

"Asked whether he thought the proposal created a conflict of interest, [Judge] Randolph replied, 'The most I’ll say is maybe there is a technical way to defend it, but it doesn’t comport to my standards.'"

At the risk of pointing out the obvious: There are interesting prior restraint issues when a judge prohibits his clerk(s) from doing something that would not be a technical violation of the ethical rules.

How is there a prior restraint issue if a judge tells his clerks they can't do certain things while they are clerking? Are you really suggesting that I could sue a judge who told me not to publish a law review article until after my clerkship was over under the First Amendment???