(The opinions expressed here are those of the author, a columnist for Reuters.)
By Alison Frankel
NEW YORK, Dec 13 (Reuters) - Clerking for a federal judge can be a career-defining job for the elite law school graduates who win the intense competition for these posts. Clerkships put newly minted lawyers at the heart of judicial decisionmaking, allowing them to understand and even influence how the law is interpreted.
In exchange for that privilege, law clerks accept a duty to preserve the confidentiality of the judge they serve. Their obligations are spelled out in 2011 guidelines from the Federal Judicial Center. Clerks must hold secret, even from family, friends and former colleagues, any information they receive that is not in the public record. They must also keep judges' decisionmaking processes under wraps – not just during their clerkships but for the rest of their careers.
What happens when a law clerk believes a federal judge is engaging in misconduct? Do the confidentiality strictures bar clerks from disclosing the judge's behavior?
Not according to six ethics experts I consulted this week. "It just could not be that Congress and the judiciary intended to allow judges to get away with anything if the person who discovers it is a law clerk," said Arthur Hellman of the University of Pittsburgh. "It cannot be, and I don't think it is."
All of the experts agreed that law clerks' duty of confidentiality ends when a clerk believes a federal judge has done something wrong outside of the deliberative process. The confidentiality guidelines for law clerks are intended to preserve the judiciary's integrity, they said. Judges must be free to air controversial ideas when they're discussing cases with their clerks without fear those thoughts will become public, said law professor Charles Geyh of the University of Indiana. But Geyh and five other experts said they believe the fundamental goal of the confidentiality guidelines would be subverted if the rules forced law clerks to be silent about judicial misconduct.
DETAILED BLOG POST
The debate over law clerks' obligations was prompted by the Washington Post's report Friday of allegations that Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals subjected six former law clerks or externs to "a range of inappropriate sexual conduct or comments."
Reuters has not independently verified the women's allegations, which include claims by two women, one named and the other not, that the judge asked them to view computer images of naked people. Judge Kozinski said in a statement to the Post that in his 35 years as a judge he has employed more than 500 people in his chambers, and has treated all of them as family. "I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done," the judge told the Post. In an additional comment to the Los Angeles Times, Judge Kozinski said, "I don't remember ever showing pornographic material to my clerks" and, "If this is all they are able to dredge up after 35 years, I am not too worried."
The judge declined my email request for additional comment on the sexual misconduct allegations or on law clerks' confidentiality obligations.
A former Kozinski clerk, Heidi Bond, went on the record to the Post. Bond, who is now a novelist under the pen name Courtney Milan, wrote a detailed blog post about her experience as Kozinski's clerk and her ethical concerns about revealing alleged inappropriate conduct.
Bond said in the blog that she felt constrained not to disclose the alleged behavior, including at least three times she claims the judge showed her naked people on his computer. Judge Kozinski, she said, was known for demanding complete fealty from his clerks. "He had drilled it into me that confidentiality meant you don't say anything," Bond wrote. She did not immediately respond to my requests via Facebook and Twitter to talk about clerks' confidentiality obligations.
QUERIES; NO ANSWERS
Bond's clerkship with Judge Kozinski ended in 2006. She said she continued to believe she could not reveal her allegations about Kozinski until 2016, when, she said, she received an email from the judge asking her to talk about her Supreme Court clerkship with an author friend.
Bond wrote that the email seemed to contravene Judge Kozinski's own confidentiality strictures, so she decided to seek advice about whether she could ethically disclose her allegations about the judge's conduct.
She said she went first to the Supreme Court, where she consulted Jeffrey Minear, Counselor to Chief Justice John Roberts. He referred her to Judge Anthony Scirica of the 3rd Circuit, who had previously headed an ethics inquiry into allegations that Judge Kozinski improperly retained emails with sexually explicit materials on a personal computer accessible to the public via a web server; the inquiry concluded that Kozinski was "judicially imprudent" but that his apology and corrective action, along with an admonishment from the Judicial Council, were sufficient to close the case without additional sanction.
According to Bond, Judge Scirica asked her not to reveal any details about her allegations because even revealing them could run afoul of confidentiality obligations. He advised her that if what had happened "was a matter of personal misconduct on the part of the judge, that I was not bound by the code of chambers confidentiality, and that whatever I needed to do for my own closure and healing was fine, so long as it wasn't about a judicial matter," Bond said on her blog.
Bond said she then suggested there might be overlap between her allegations and the previous ethics investigation of Judge Kozinski. That stumped Judge Scirica, she said in her blog post, because he could not determine whether there was a connection to the old case without knowing the details of Bond's allegations. Yet she could not reveal those details for fear of breaching her ethical confidentiality obligations.
"I cannot think of any person, persons or institution that can give you an answer on this," Bond quoted Judge Scirica saying. She said on her blog that she received the same unsatisfying answer when she asked the same question of the Judicial Conference's Committee on Codes of Conduct for U.S. Judges.
I reached out to the Supreme Court, Judge Scirica's chambers and the Judicial Conference to try to verify Bond's account. A Supreme Court spokeswoman declined to comment. Judge Scirica's chambers and the Judicial Conference did not respond to phone messages.
"WOULD DEFY COMMON SENSE"
All six of the ethics experts I consulted – law professors Hellman, Geyh, John Strait of Seattle University, Amanda Frost of American University and Andrew Kaufman of Harvard, as well as Brookings Institution fellow Russell Wheeler, a former deputy director of the Federal Judicial Center – said Judge Scirica's initial advice was correct: As long as clerks are not divulging confidences about deliberations, they can disclose allegations of judges' personal misconduct. (Kaufman said his comments did not specifically pertain to the Kozinski matter.)
"The guidelines say don't divulge things about cases," said Wheeler. "I don't see how they can reasonably be read to say that if your boss is hitting on you, you can't report it. That would defy common sense."
As Hellman pointed out, Congress, with advice from the judiciary, enacted a procedure to report alleged judicial misconduct within the judicial system. That procedure, Hellman said, exists side by side with law clerks' duty of confidentiality to protect the decisionmaking process.
Otherwise, to extend the duty of confidentiality to its illogical extreme, judges could do anything – fudge expense accounts, steal petty cash, even assault law clerks – without fear of misconduct complaints by their law clerks. Such a blanket prohibition on disclosure, ethics experts said, would undermine the greater purpose of the confidentiality guidelines, which is to preserve public trust in the judicial system.
"At the margin, I would err on the side of confidentiality," said Geyh. "But engaging in illegal activities or inappropriate behavior? That's clearly not what's intended to be confidential."
In this new era, law clerks can take comfort in knowing they have the same right to come forward as other employees.
(Reporting by Alison Frankel. Editing by Alessandra Rafferty.)
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