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II. Introduction

Texas Lawyer reported on September 11, 2000 that a longstanding tradition—whereby leading law firms subsidize Texas Supreme Court clerks—appears to violate the plain language of Texas’ penal code. Apart from this potential criminal misconduct, the clerk- perk scandal renews persistent concerns about the degree to which the court’s coziness with wealthy special interests influences its official actions.

Each Texas Supreme Court justice typically employs two clerks a year at a salary of $37,900 apiece. The justices recruit clerks while they are still in law school. Many leading law firms with a steady stream of business before the Supreme Court also pre-recruit these same students to go to work for them upon completing their clerkship. Recruits often do a summer internship with their future employer prior to clerking. Many top firms pay these clerks subsidies long before their recruits becomes a full salaried firm employee (the appendix lists 12 firms that are known to have paid perks to court clerks). These subsidies, currently can surpass $47,000, including:

• “Clerk bonuses” of up to $35,500 paid to recruits who clerk before starting at a firm;
• “Signing” and “graduation” bonuses that can total $10,500;
• Moving costs and summer stipends; and
• Bar class, Bar exam and Bar due expenses (totaling almost $2,000).

Serious ethical and legal concerns arise when the employers that bestow such perks on clerks have business before the same court. Texas Supreme Court clerks exercise considerable influence over court business. “Each briefing attorney [clerk] assists their judge with general legal research, study of petitions for review, preparation for oral argument and research, and writing opinions,” says the Supreme Court’s clerk job description. “Unlike most appellate courts, the Supreme Court permits briefing attorneys to sit in on its conference deliberations. Sometimes, briefing attorneys will be asked to make oral presentations or answer questions about the law or the facts during conference.”

Both the firm that subsidizes a court clerk, as well as the clerk who accepts such benefits, appear to violate the clear language of the “Bribery and Corrupt Influence” chapter of Texas’ penal code. A judicial employee breaks the law if he or she “solicits, accepts or agrees to accept any benefit” from a person with an interest before the court [see Sec. 36.08(e)]. A firm violates this offense if it knowingly “offers, confers or agrees to confer any benefit on a public servant” that is prohibited by law [see Sec. 36.09]. Violators of these Class A misdemeanors face a maximum punishment of $4,000 and a year in prison [see http://www.ethics.state.tx.us/statutes/36.htm ].

Defending the court’s current practice, Chief Justice Tom Phillips has said that court clerks follow internal conflict-of-interest rules that isolate them from court matters involving prospective employers. “It’s fair to say we’re not convinced there’s a problem,” Phillips has said. The court’s law clerk liaison, Justice James Baker, characterized court ethics rules as a “Chinese Wall” that safeguards the court’s integrity. On closer examination, both of these justices’ claims appear overblown.

Although court meetings with the Travis County Attorney’s Office appear to have preempted prosecution, Texas law makes no exceptions for public servants who receive prohibited benefits while adhering to internal ethics codes [see Texas Ethics Commission Advisory Opinion No. 425]. In attempting to stake out such an exemption for themselves, the justices are legislating from the bench.

The court has two clerk ethics policies. Its 1991 half-page “Policy Concerning Past and Future Employments of Briefing Attorneys and Staff Attorneys” says:

A Briefing Attorney will notify his or her Justice as soon as an offer of employment with a law firm has been accepted (or even if an offer of employment and its acceptance appear probable). The Justice is to be notified whether a “sign on” bonus is involved, its amount and when it is expected to be paid.

This policy adds that:

A Briefing Attorney who has worked for a law firm prior to working for the Court is not to work on any case at the Supreme Court on which he or she may have worked or of which he or she may have gained knowledge while in the law firm’s employ. The circumstances will be promptly reported so that the Briefing Attorney’s Justice may make appropriate adjustments in the work of the office.

Limitations of this policy include the fact that it:

• Relies heavily on clerk self-policing;
• Does not require disclosure of any employer perks other than sign-on bonuses; and
• Only bars clerks from working on cases involving former employers, and then only when the clerk had insider knowledge of a specific case.

The court’s four-page 1986 “Code of Conduct for Briefing Attorneys and Staff Attorneys” contains language that could be interpreted to preclude clerks from taking hiring benefits from firms with court business. “Briefing attorneys and staff attorneys should respect and comply with the law and should conduct themselves at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and the office,” the code says. It also says that clerks should not “accept a gift, bequest, favor, or loan from any person whose interests have come or are likely to come before the court under circumstances that might reasonably be regarded as influencing the performance of official duties.” This code bars clerks from drafting any opinion or memorandum in any case “involving family members or future employers as parties or attorneys.” While it bars clerks from discussing or sitting in on any discussion of cases involving family members, no such prohibition applies to cases involving future employers.

Justice Baker’s ethical “Chinese Wall” does not appear to be as impregnable as he makes it sound. Chief Justice Phillips has acknowledged that the court keeps no written records of which clerks have employment relationships with which firms or which clerks have been recused from which cases. The court’s ethics policies depend heavily on clerk self-policing. The policies contain contradictory language that at times appears to condemn and at other times condones the practice of clerks accepting employment perks from firms with business before the court. Given these weaknesses in court ethics policies, this report attempts to measure the scope of potential conflicts posed by court clerks who get pre-recruited to work at firms with cases pending before the court.
 

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