CSG Law Alert: What to Do When Your Adversary was the Judge’s Clerk?

You just found out your adversary is the judge’s former law clerk. They seem pretty cordial. What do you do?

Most of the reported cases involving judges and former clerks deal with the situation where the clerk was employed while a matter was pending and later joins a firm involved in the same matter or representing one of the parties. That law is well-settled.

But suppose the issue is not whether the case was in front of the judge in some fashion when your adversary was clerking; what if the issue is more thorny? Do they still have a close enough relationship to put your client at a perceived or actual disadvantage?

After reading about In Re: Gizella Pozsgai, case number 19-3872 in the U.S. Court of Appeals for the Third Circuit, you have to consider raising the delicate issue before the judge and the adversary and hope for honest and complete answers. (Although that doesn’t always work so well. See below).

There is no hard and fast rule addressing the question of whether a  judge should allow a former clerk to appear before the judge in any matter. Some judges wait 6 months, some wait a year, some wait two years before allowing a clerk to appear. Some districts or vicinages choose a time period by consensus.

In Patzner v Burkett, 779 F. 2d 1363 (8th Cir. C.A. 1985), the court noted recusal is left to the judge’s discretion and declined to act when the adversary made no claim of bias towards the former clerk, although the clerk had worked for the judge only nine months prior to the inception of the case.

Ideally, the relationship between a judge and a law clerk is a close, confidential and mentoring one. Nevertheless, judges (and clerks) want the clerks to be marketable after their term:

The court observes in passing that some judges (but not the undersigned) employ law clerks with the specific expectation that the clerks will remain in that city or area to practice law. If a court were to accept the contention that recusal was necessary whenever any counsel had been a prior law clerk to a judge, this would be an unfair penalty placed upon former law clerks of Federal Judges. In addition, United States judges themselves would suffer an obvious limitation on their recruiting of talented law clerks in the future. lFootnote omitted]. Smith v. Pepsico, Inc., 434 F. Supp. 524, 526 (S.D. Fla. 1977)

Counsel need to rely upon the judge and the adversary to be  open and honest about their relationship: that’s precisely where things went wrong in Pozsgai. That case involves a 32-year-old claim  involving a Clean Water Act violation and subsequent enforcement efforts. The trial judge had twice refused to recuse herself from the case. The AUSA now handling the case was her law clerk 14 years ago.

The scrutiny began because the judge gave an interview circulated on the internet describing her close personal and social relationships with former law clerks, including the AUSA. She had made similar comments in public remarks and in legal publications. She had pictures of events in her chambers of her and former clerks, including the AUSA, seen by counsel during a conference. In denying the first recusal motion along with deciding other motions, she simply inserted  the denial in a footnote without analysis.

In the second denial, she stated she presently had “no special relationship”  with the clerk. The adversary took issue with the obvious contradictions between her public statements and the Order.

The case is heading to the Third Circuit and bears watching. In the meantime, if you clerked and have a case assigned to your judge, promptly notify your adversary of the details of the clerkship and your present relationship with the judge.