LEO: Appearance of Impropriety - "Chinese LE Op. 1334

 

Appearance of Impropriety - "Chinese Wall" - Law Clerk -

Vicarious Disqualification: Former Bankruptcy Law

Clerk Accepting Employment With Firm Which

Represents Creditors Committee in

Ongoing Bankruptcy Matter.

 

April 20, 1990

 

You have advised that as a law clerk for a federal bankruptcy judge, a

lawyer's duties included attendance in court, legal research, and drafting

written opinions and orders based on pertinent research, evidence, briefs

submitted by parties, and discussions between the judge and the law clerk.

The law clerk subsequently accepted employment as an associate with a law

firm which represents the creditors' committee in one of the complex

bankruptcy cases on which the clerk had assisted the judge. The creditor's

committee has instituted or will institute several lawsuits on behalf of

the debtor and is also involved in consummating a settlement of another

adversary proceeding on which the associate worked when a law clerk.

 

You have requested that the Ethics Committee opine as to the propriety of

the law clerk/associate's firm continuing to represent the Creditors'

Committee if a "Chinese Wall"/screening device is erected between the firm

and the associate as to that case. Additionally, you have asked if the

firm is required to establish such a screen, and conversely, if the firm

could continue such representation without a screen with respect to any

motions or adversary proceedings not filed until after the associate's

clerkship with the judge had terminated, especially if such proceedings

would concern no issues similar to any issues in the case decided by the

judge during the associate's tenure as a law clerk. Finally, you have

inquired if the agreement of all parties after full disclosure would

permit the firm to continue representation (presumably without a screen)

in such matters, whether pending during the associate's tenure as law

clerk or not, and, most critically, whether such agreement of the parties

would also permit the associate/former law clerk to work on those matters (

also presumably without a screen).

 

The appropriate and controlling premise is Canon 9 which mandates

generally that a lawyer should avoid even the appearance of professional

impropriety. The specific disciplinary rules which are applicable to the

circumstances you have presented are DR:9-101(A), (B), and (C) 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 view that the activities of a (former) law clerk

may be measured using the same criteria as the activities of a judge in

determining whether the law clerk's actions are improper or result in the

appearance of impropriety even when no per se impropriety exists. (See,

e.g., Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593, 596 (

5th Cir., 1977)) It is elementary that neither a judge nor his law clerk

has the opportunity to establish an attorney-client relationship with any

of the parties to a proceeding before the court, nor do they have access

to any information that is confidential or that would be protected by any

provisions related to the preservation of secrets and confidences. It is

apparent to the committee that, since law clerks and judges review and

preside over public information, they are not in a position to obtain any

secret information or strategy development related to the presentation of

a matter before the court.

 

The Committee is of the opinion, however, that, as you have described

them, the activities engaged in by the law clerk in assisting the judge

would constitute the clerk's having had "substantial responsibility" in

the matter before the judge, regardless of whether that responsibility was

exercised in an attorney-client context or in a judicial context. Thus, in

accord with the mandates of DR:9-101(A) and (B), the guidance provided

in Ethical Consideration 9-3 [ EC:9-3], 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 accept employment in connection with any such

matter would give the appearance of impropriety even if none exists. The

Committee adopts the reasoning of ABA Informal Opinion 1092 which

describes the law clerk's role as "the judge's right hand, ... [with] an

important role in the decision-making process and in shaping his ultimate

decision." Obviously, therefore, the former law clerk/associate would be

personally disqualified from working on any matter on which he had done

legal research, drafted opinions or orders, or participated in discussions

with the presiding judge.

 

The Committee has recently opined that the establishment of a "Chinese

Wall"/screening device is an acceptable means of averting a firm's

vicarious disqualification based upon the taint of a former government

lawyer's personal disqualification under DR:9-101(B). (See LE Op. 1302,

LE Op. 1303) Under the circumstances you have described, the committee

believes that LE Op. 1302, which requires the establishment of a screen in

order to obviate the firm's disqualification, is dispositive of the issue. (

See also LE Op. 881) The committee is further of the view, however, that

such a screen would not be required as to motions or adversary proceedings

which have been filed subsequent to the termination of the clerkship

provided that those motions or proceedings are not substantially related

to the issues for which the clerk did have substantial responsibility.

 

The Committee opines that the agreement of all parties to the firm's

continued representation, without the implementation of a screening device,

would not be sufficient to overcome the appearance of impropriety whether

on the part of the firm or of the former law clerk. There plainly is no "

cure by consent" for the creation of an appearance of impropriety; rather,

such consent might foster the public's lack of confidence in law and

lawyers by conjuring up images of collusion and improper influence upon

the tribunal. (See EC:9-2)

 

Finally, the Committee cautions that the court or the individual judge

for whom the associate served as clerk may have adopted specific

restrictions on the activities of a law clerk after the termination of the

clerkship. The Committee urges that the associate/former law clerk adhere

stringently to any such restrictions. (See also L. Bartlett & A. Rubin,

Law Clerk Handbook 2.2 at 24 (Federal Judicial Center, 1989))

 

Committee Opinion April 20, 1990

 

CROSS REFERENCES

 

See also LE Op. 1354.