Legal Ethics Opinion No. 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

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 refiled 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 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 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 participate in the new case would
give the appearance of impropriety even if none exists.  See LEO
#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 LEO
#l430.  To the extent that this conclusion and those of LEO #l430
are in conflict with that portion of LEO #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