WASHINGTON (Legal Newsline) - A judicial ethics panel is throwing shade on an effort to make law clerkships more transparent.
In spite of growing participation among state and federal judges in Legal Accountability Project's LAP Pledge, the Committee on Codes of Conduct of the Judicial Conference advised 10th Circuit Court of Appeals Chief Judge Jerome Holmes that distributing post clerkship surveys to current and former clerks, and other facets of the pledge, "gives rise to ethical concerns."
Holmes had sought a formal opinion from the Committee after several judges in his circuit had been asked by the LAP to take part in the pledge, according to the Committee advisory opinion.
Based in D.C, the LAP aims to empower law students to demand safer workplaces, as well as to increase transparency and equity in the clerkship application process. Its mission is to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not.
President and founder of LAP Aliza Shatzman said she believes the Committee's opinion was based on a misunderstanding of the facts.
"LAP has not been asked to provide information or a response to the Committee to date, but we would be happy to do so if requested," she told Legal Newsline.
Judges agreeing to the pledge participate by circulating surveys to their clerks who would provide basic details, as well as answer more profound clerkship experience questions to draw out positive and negative information. Surveys elicit answers on workplace environment, work/life balance, overall clerkship experience and each judge as a manager - positive, neutral or negative.
Judges also agree to allow their names to be searchable on the LAP clerkship database and to appear on the LAP website.
Shatzman said the LAP is not requesting that judges endorse the organization.
"We hope judges will continue to encourage their law clerks to submit surveys for LAP's clerkships database," she said in a statement. "Already, we have more than 950 surveys submitted by federal and state law clerks nationwide. This robust participation from law clerks made our clerkship database launch in early April 2024 - an unprecedented step to ensure transparency, equity, and accountability in the judiciary - a success."
The LAP says its efforts are democratizing information about judges through its database which replaces “whisper networks” among prospective clerks seeking to obtain information about judges.
According to the Committee's Feb. 15 advisory, Holmes had requested a formal opinion on the ethical implications of agreeing to the pledge request from LAP - a private nonprofit.
Writing for the Committee, U.S. District Judge Jennifer Elrod held that it has routinely advised that judges may not lend the prestige of the judicial office to the fundraising efforts of nonprofit entities. It has also advised that judges should not provide endorsements to be used to promote sales of products or services or appear in photos that would be used in commercial brochures.
"Here, the LAP Pledge requests a public endorsement of LAP's product in a manner that is inextricably linked to the judicial office; indeed, LAP's website lists participating judges and the courts on which they sit," Elrod wrote.
"In addition to public endorsement, the Pledge also calls on judges to circulate the survey to current and former law clerks, which will increase the number of law clerk responses and likely increase the value of LAP's product."
Elrod wrote that public endorsement of LAP's product cannot be decoupled from the prestige of judicial office.
She also wrote that circulating the survey could be perceived as "coercive" given the employer-employee relationship between clerks and judges.
On its website, the LAP notes that its clerkship database is not a publicly accessible document. "The only individuals who can read surveys are law students and clerkship advisors at participating schools that have signed up for database access," it says.
It also says that its pledge should not be viewed as an endorsement of LAP. "Rather, it’s an opportunity to publicly signal a commitment to the transparency and diversity principles that motive LAP’s Clerkships Database," it says.
Judges who have recently taken the pledge have reviewed Elrod's decision. LAP board member, Maryland appellate Judge Douglas A. Nazarian, is a pledge taker whose commitment to the pledge apparently hasn't been affected by Elrod's opinion as his name remains listed on the LAP site.
The name of U.S. District Judge Philip Calabrese of the Northern District of Ohio, who had been listed as a pledge taker three months ago, however, is no longer listed as a pledge taker on the LAP site.
LAP's vision - to ensure that law clerks have positive clerkship experiences, while extending support and resources to those who do not - appears grounded in Shatzman's disastrous clerkship experience.
"No one talked about the potential downsides of clerking: the enormous power disparity between judges and fresh-out-of-law-school clerks that makes it incredibly difficult to speak out against workplace mistreatment; the lack of workplace protections; and the far-reaching power that judges can exert over former clerks’ lives, careers, and reputations, long after the clerkship has ended," she states on LAP's website.
Shatzman says she suffered harassment and gender discrimination during her clerkship at D.C. Superior Court from August 2019 to May 2020, and testified about it before Congress in March 2022.
Her "shattered career aspirations" are the focus of many of LAP's social media posts which often reference her congressional testimony.
"The judge would call me into his inner chambers at least weekly—almost always when my male co-clerk was not around—to berate me for being 'bossy' and 'aggressive' and 'nasty' and a 'disappointment.' He would criticize my personality because I did not behave the way he expected female clerks to behave in the workplace. The judge would demand that I stay late, until after my male co-clerk had left for the evening, and he would berate me when he knew no one was around to witness it," she testified.
Shatzman launched LAP to "correct injustices she personally experienced," finding that law clerks had no legal recourse "for harms done to their lives, careers, and future earning potential" because the federal judiciary is exempt from Title VII of the Civil Rights Act of 1964, she wrote.
In the Committee's advisory opinion, Elrod notes that the Code of Conduct for Judicial Employees which applies to law clerks prohibits disclosure of confidential information obtained in their official duties but it "does not prevent, nor should it discourage, an employee of former employee from reporting or disclosing misconduct, including sexual or other forms of harassment, bu a judge, supervisor, or other person."
Shatzman said the LAP appreciates that the Committee specifically recognized that law clerks can disclose or report the misconduct that they experience during their clerkships, including harassment.
"It's critically important that federal and state judges and administrators support law clerks and other court personnel who experience discrimination or harassment while working in the courts," she said.
'Patron Saint of Clerks'
The LAP pledge is the brainchild of the organization's founding social venture capitalist, judicial reformer Edward "Coach" Weinhaus. He gained the moniker "Patron Saint of Clerks" after standing up for one of his law firm's partners, a well-known former Supreme Court clerk when he sued the ALAB Series podcast and forced his way into an episode.
Slate magazine called it one of the top 10 podcast episodes in 2022.
In 2023, Weinhaus financially backed Shatzman's budding efforts to get LAP's clerkship database off the ground. When asked about his hand in the LAP pledge and the database, Coach said: "Creating a better judiciary is a team effort."
He recently sued the Illinois Judges Association, which he describes as the "Business League of Judges," for $1 to keep the group from ruling on each others' cases.