Can a former judicial law clerk, and his new firm, work on a related case after the clerk had substantial responsibility for it in chambers?

Plain-English summary

A lawyer had served as a federal district judge's law clerk and, in that role, assisted the judge on a case in which a private firm represented the plaintiff; his duties included court attendance, research, contact with both parties' attorneys, and drafting opinions and orders. The plaintiff dismissed and refiled (the clerk did not work on the refiled case), the clerk left and joined that plaintiff's firm, and the plaintiff dismissed again. The plaintiff now wished to file a new, related complaint involving a different statute. The committee was asked whether the former clerk could work on the new case, which would be assigned to a different judge, and if not, whether his firm could continue with a screen ("Chinese wall").

The controlling rules were DR 9-101(A), (B), and (C), which bar a lawyer from accepting private employment in a matter on whose merits he acted in a judicial capacity or in which he had substantial responsibility as a public employee, and from implying he can improperly influence a tribunal.

The committee concluded that the clerk's activities amounted to "substantial responsibility" in the matter, so his participation in the related new case would give the appearance of impropriety even if none existed, given that judges discuss their reasoning confidentially with clerks (citing LE Op. 1334). It held that the new case's assignment to a different judge and its different statute were irrelevant, because the new case remained related to the matter in which the clerk had substantial responsibility, and any personal or financial involvement by him would be a per se violation of DR 9-101(B). On the firm, the committee concluded that because DR 9-101 has no imputed-disqualification corollary to DR 5-105(E), it was not per se improper for the firm to continue to represent the plaintiff, the assignment of new cases to other judges vitiated any imputed appearance of impropriety, and no formal screening was necessary (citing LE Op. 1430); it overruled the contrary screening conclusion of LE Op. 1334.

Currency note

This opinion was issued in 1992, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, current Rule 1.11(b) probably would require that the former clerk be screened, a change from the no-screening-required conclusion this opinion reached. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former law clerk work on a case he had substantial responsibility for in chambers?

A: Under this 1992 opinion, no. The committee held that the clerk's substantial responsibility barred him from participating, professionally or financially, in the related new case, and that personal or financial involvement would be a per se violation of DR 9-101(B).

Q: Did it matter that the new case went to a different judge and a different statute?

A: No. The committee held those facts were irrelevant because the new case remained related to the matter in which the clerk had exercised substantial responsibility.

Q: Could the clerk's firm continue if it screened him off?

A: The committee held the firm could continue to represent the plaintiff and that no formal screen was required, because DR 9-101 had no imputed-disqualification provision and case assignment to other judges vitiated any imputed appearance of impropriety. It overruled the contrary part of LE Op. 1334.

Background and rules framework

The opinion interpreted former Virginia DR 9-101(A), (B), and (C) (former judicial or public service) and contrasted them with DR 5-105(E) (imputed disqualification). The conflict rules for former judges, clerks, and arbitrators are now in Virginia Rule 1.12, and for former government officers and employees in Rule 1.11, which, as the committee note explains, would likely call for screening the clerk.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 9-101(A), (B), (C); DR 5-105(E) (Code of Professional Responsibility)
• ABA Model Rule 1.12 (former judge, clerk, or arbitrator); Model Rule 1.11 (former government officers and employees)

Other opinions cited:

• Virginia LE Op. 1334: appearance of impropriety from a former clerk's participation (screening conclusion overruled here).
• Virginia LE Op. 1430: no imputed disqualification of the former clerk's firm under DR 9-101.

See also

• VA LEO 1810: Guardian ad Litem Conflict and Imputation
• VA LEO 1773: Legislator's Firm Clients Before Local Boards
• VA LEO 1538: Prosecutor's Quasi-Judicial Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1478.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
August 24, 1992
LEGAL ETHICS OPINION 1478

APPEARANCE OF IMPROPRIETY –
FORMER JUDICIAL LAW CLERK.

You have presented a hypothetical situation in which a lawyer served as a law clerk for
a federal district court judge during which time a private firm appeared before the judge
on behalf of a plaintiff. The lawyer assisted the judge with the case. You indicate that, as
a law clerk, the lawyer's duties involved attendance in court, legal research, contact with
the attorneys for both parties, and drafting opinions and orders based on the research,
evidence, briefs of counsel, and discussions with the judge.
You advise that, during the lawyer's tenure as law clerk, the plaintiff moved for a
voluntary dismissal of the case, and the case was dismissed. Subsequently, the plaintiff
refiled the complaint. Although the refilled case was reassigned to the same judge, the
law clerk did not work on the case. The lawyer then ceased to serve as the judge's clerk
and accepted employment with the private firm that appeared on behalf of this plaintiff.
After the lawyer left employment with the judge, the plaintiff voluntarily dismissed the
second complaint. You indicate that the plaintiff wishes to file a new complaint with the
federal district court. The new case, although related, concerns the applicability of a
different statute than that involved in the first two cases.
You state that the judge has a policy that neither the former law clerk, nor any member
of the former law clerk's firm, can practice before him for one year after the former law
clerk's tenure has ended. You also state that any case filed in the district court by the
former law clerk's firm is assigned to one of the other judges in that court.
You have asked the Committee to opine whether, under the facts of the inquiry, (1) the
lawyer/former law clerk can work on the new case which will be assigned to a judge
other than the judge for whom the lawyer formerly worked and since it involves the
applicability of a different statute; and (2) if the lawyer/former law clerk cannot work on
the new case, whether the law firm can continue to represent the plaintiff if a "Chinese
wall" is implemented to prevent the lawyer/former law clerk's exposure to the case.
The appropriate and controlling Disciplinary Rules related to your inquiry are DRs 9101(A), (B), and (C) [ DR:9-101], which dictate, respectively, that a lawyer shall not
accept private employment in a matter upon the merits of which he has acted in a judicial
capacity or in which he had substantial responsibility while he was a public employee,
and shall not state or imply that he is able to influence improperly or upon irrelevant
grounds any tribunal, legislative body, or public official.
The Committee is of the opinion that, as you have described them, the activities
engaged in by the law clerk in assisting the Judge would constitute the former clerk's
having had "substantial responsibility" in the matter before the federal district court.
Thus, in accord with the mandates of Disciplinary Rules 9-101(A) and (B) and the public
perception that judges discuss confidentially with their clerks the underlying rationale for
decisions made in a matter, the Committee is of the belief that for the former law clerk to

Committee Opinion
August 24, 1992
participate in the new case would give the appearance of impropriety even if none exists.
See LE Op. 1334. The Committee also believes that the facts of assignment of the case to
a different judge and the applicability of a different statute are irrelevant to the opinion
reached, since the new case remains related to the case for which the former law clerk
exercised substantial responsibility. Further, any personal or financial involvement by the
former law clerk in the matter would be per se violative of DR:9-101(B).
With regard to your inquiry as to the efficacy of a "Chinese wall," the Committee is of
the opinion that since DR:9-101 and its component subparts contain no corollary to the
imputed disqualification of DR:5-105(E), it would not be per se improper for lawyers in
the former clerk's firm to continue to represent the plaintiff in the federal district court
by which the new lawyer has previously been employed. In addition, according to the
facts you provided, the assignment of the new case to one of the other judges in the court
would vitiate any imputation to the firm of an appearance of impropriety. Since no
imputed disqualification is mandated by Disciplinary Rules 9-101(A) and (B), the
Committee opines that although the attorney may not participate, professionally or
financially, in the representation, no formal screening will be necessary. See LE Op.
1430. To the extent that this conclusion and those of LE Op. 1430 are in conflict with that
portion of LE Op. 1334 which determined that the establishment of a screening device
was required to obviate the former law clerk's firm's disqualification, that opinion is
overruled as to that conclusion.
Committee Opinion
August 24, 1992
Legal Ethics Committee Notes. – Rule 1.11(b) probably would require that the law
clerk be screened.