First

If a judge doesn't know which law firm is paying his or her clerk, how can the judge police conflicts of interest?

will the 24 law clerks who got the boot receive their "deferral stipend"?

All I want to know is when does the clerk elephant walk start?

Why can't Mass. handle this the way federal law clerks do: we're "Chinese walled" off from cases from our 2L summer firm(s).

Wow, looks like the Boston gig's been cancelled.

Too bad for the qualified clerks-to-be who were initially hired. Even worse, they'll be replaced by Biglaw orphans who never had any interest in public service or government work until the corporate teat was yanked from their suckling lips. Not classy.

Uh . . . I mean . . . this one goes to 11?

6 = racist.

But the clerks will know which firms are paying them. They write the memos for the judges, etc. Considering they are "deferred" and wondering if they will even have jobs, won't they be inclined to shade things in the firm's favor in order to up their chances of having a job next year? That is why it is unethical. The people who have the most influence over the judge know where their future lies.

WSWEHGTIHWB?

What
School
Would
Ellie
Have
Gone
To
If
He
Wasn't
Black?

Congrats, 10, on being a massive racist and fucktard.

Is the state immune to a breach of contract suit by the booted clerks?

As 6 and 9 have pointed out, this is a retarded solution. The clerks will still know if they're working on a case involving their firm, and the judges will have no way to prevent this from happening. Why not just be up-front about things and simply bar the clerks from working on cases involving their firms?

10: If he *weren't* black. What elementary school did you go to?

12, it might be, but I think (and I'm just hazarding a guess here) that the relevant cause of action would be promissory estoppel. The clerks likely relied to their detriment in being promised these positions, so I think the state's liability is clear. Immunity is another question.

Suffolk Law is the Yale of Community Colleges

I went to Dartmouth.

Why weren't the original law clerks who had their clerkships revoked given the chance to be volunteer clerks before the big-law deferrals? At least give them the chance at getting that valuable experience. It doesn't make sense that the judiciary is bending over backwards to help people who have a job lined up (eventually), but shitting on those who were depending on the state clerkship to advance in the state government.

16, thank you.

-Ignorant NESL student.

Why didn't the trial court give the clerks it originally hired the option of working without pay?

For those suggesting an action in promissory estoppel, please bear in mind that reliance must be reasonable. It would be difficult to establish reasonable reliance on an offer that was always conditional on the availability of funds, particularly where it involves government entity that relies on legislative appropriations for its budget.

What is an "elephant walk?"

This is flat out unethical. Not only would the salary be paid by law firms, but the clerks would be defacto employees of the law firms, later becoming full-time employees of the same law firm. This stinks to high heaven. Only a total idiot would think it ok.

10 nailed it.

In the federal courts, the clerk's office screens cases for potential conflicts. The judges do not necessarily need to know where their clerks have worked or will be working.

tl;dr

This is a lawsuit waiting to happen. Great job massachusettes!!!! I'm happy to hear you all understand the "conflicts of interest" thingy.

Mystal is actually Asian.

25, that's not how it's done in the federal court where I work. The clerk's office screens for whether the judges are conflicted off, but clerk conflicts are dealt with in chambers.

And how the hell would a federal judge not know where his clerks have worked?

This is so wrong - what about the poor REAL clerks that were awarded a clerkship? Everyone knows it is harder and more prestigious to get a clerkship than run on the hamster wheel that is Big Law. I was offered one of these clerkships years ago, but accepted a federal one. Those volunteer-Big Law associates are don't stack up.

This is retarded on so many levels. guarantee there's a huge backlash against this and these so called "big law deferred Clerks" are not allowed to start . . . sorry to the original hired clerks and sorry to anyone who has a brain and realizes this can cause huge conflict issues. . .

Way to go Massachusettes. Save some money on clerks for a year. . . tie up the judicial system with appeals and motions in the future! Woohoo!

This is bullshit and I feel bad for the clerks. I feel their pain.

21, you might want to dust off the Restatement and consult Section 90. It appears to be a perfect fit.

Since no one's said it yet:

MassachuseTTTs!!!

I am happy that this is happening to the clerks, they are all elitist pricks anyway.

GULC3L

The ethical issue is overstated. People don't get up in arms about it when Supreme Court clerks salivate over their quarter million dollar payday (that's contingent on them joining the firm after their clerkship is done). Why would people be concerned about money received from a firm that isn't contingent on the prospective associate coming back?

I agree with 18 - the court system should give the clerks it originally hired the opportunity to work without pay.

Working as a clerk during the day, there would still be enough time in the week for these clerks to take on 2nd jobs to earn some cash, and at least they'd be getting some experience to put on their resume.

This is shameful action by the Mass court system.

Mystal's manjuice covered moobs look marvelous in the moonlight

#33:

Please read the Massachusetts case law expounding upon the subject before directing anyone to dust off the Restatement.

#39 + 33

And besides, the better one would probably be 86(2).

It is a conflict of interest...... I mean is this a joke?? Glad the court can save a few bucks but seriously. Nice Ethic standards Mass. -

So if I work for the govenment can I moonlight for a law firm? Answer is almost certainly not. Why? Violates ethics.

Be prepared to see lots and lots of motions requesting judicial recusal.

Your writeup is fairly misleading as to the timing of events. As ATL's May story on the topic described, the "lost offer" clerks lost their spots Oct/Nov of '08 (when they were told is a separate issue...) due to a state budget freeze. http://abovethelaw.com/2009/05/massachusetts_superior_court_r.php

The firm deferals occurred later, and the approval for this particular program is very recent indeed. I believe your writeup glosses over the disconnect between incoming and outgoing and allows people to infer causation that isn't there.

The points on ethical concerns are of course valid as many here have noted.

Your writeup is fairly misleading as to the timing of events. As ATL's May story on the topic described, the "lost offer" clerks lost their spots Oct/Nov of '08 (when they were told is a separate issue...) due to a state budget freeze. http://abovethelaw.com/2009/05/massachusetts_superior_court_r.php

The firm deferals occurred later, and the approval for this particular program is very recent indeed. I believe your writeup glosses over the disconnect between incoming and outgoing and allows people to infer causation that isn't there.

The points on ethical concerns are of course valid as many here have noted.

39-40: Section 86 is not related to promissory estoppel, which is governed by Section 90. Under the principles set forth in Section 90, the Commonwealth is clearly liable here (unless some principle of sovereign immunity applies). Does anyone know if a lawsuit has in fact been filed already?

If 43/44 is correct then I don't feel as outraged as I did before. If the hired clerks were given notice months ago and the deferred associate clerks were a separate thing then Elie has really misled us.

Shame on you, Elie Mystal. (Said angrily at microphone next to Gov. Strickland)

Ethics? I didn't know lawyers or courts had any, so what's the big deal.

Maryland's Attorney General doing the same thing by offering a similar program. Ain't the judiciary though.

Kash, Kash, Kash,

While "no-nothing problem" is redundant, and implies there is no problem at all, a "know-nothing problem is a significant problem indeed.

This is why we proofread and do not simply rely on spellcheck.

Then again, compared to Elie, you're a spelling bee champ. But try not to set your bar too low.

43/44 - The issue is not whether rescinding the original clerkship offers and offering the spots at internships to biglaw deferrals are related. In fact, it's a good opportunity for those with public service contingencies on their deferral stipends.

All I'm upset about is that the clerks who had their offers revoked should have been given first dibs on whether to return as volunteer interns. Any leftover internship positions should then be opened up to the biglaw deferrals under this program. It just seems like the classy way to go about it.

Elie should be deferred, and 43/44 should take over.

50 - They're out looking for jobs! They wouldn't return as volunteer interns. The biglaw deferrals have stipends to live on.

43/44: that's not what the Globe article says (hit the link within the ATL article).

24 & 10 must be twins...to infinity!

READ THIS!

I am one of the unlucky 24 who had their Mass. Superior Court clerkship revoked in March as a result of the budget shortfall. I'm chiming in to clear up an issue that many of you have raised that the Globe's article did not address.

Because we had received "real" offers to clerk last December, we have been given the opportunity to accept one of the "unpaid graduate internships" before they open up the pool to the general public. Note - we just received this letter late last week, so not much time has passed at all. How many of us will accept these unpaid positions? I couldn't tell you. I will not be accepting an unpaid position because I will be starting at a firm that graciously readjusted their plans to let me start this fall ( I was going to defer my start date for a year to clerk).

As someone who had to readjust their career path and geographic location as a result of the fiasco, I'll be honest in saying that I think this is an insulting compromise. I appreciate that we have been given the opportunity to accept the "internship" before others, but it's pretty infuriating that they're soliciting us to do the same work for NO pay alongside PAID 2nd year clerks who just had better timing and luck than we did. We rightfully earned those positions, and it would be difficult to sit next to another clerk doing the same work knowing that they're getting paid for it (and I'm not) because of a technicality. To clarify, did you know that the judiciary offered current clerks (those who started last August) the opportunity to stay for another year because the new budget plan allowed for retention of CURRENT employees but forbade NEW employee hiring -- hence why my class of clerks got the ax?

Oh, the drama.

what a crock of shi!t...the biglaw asswipes not only get their fancy jobs and fancy salaries - but they get to take the jobs of other attorneys...gey kakn!

52 - perhaps, but it is better to have that experience when looking for another job instead of being just another out-of-job graduate with no real world skills. Besides, aren't there public interest programs that subsidize these kinds of things? I'm not saying that they should return. They should just be given that option to return if it fits.

99% of my beef with this would evaporate if the judiciary had sent a message to the revoked clerks saying "We are turning your former clerkship into an unpaid internship. Would you take that before we offer it to deferred biglaw?" That way, the clerk can say "No thanks, I really need a paying job," or "Yes, something's better than nothing." It really would have been that simple.

"Under the principles set forth in Section 90, the Commonwealth is clearly liable here (unless some principle of sovereign immunity applies)."

Again, people seem to be missing the fact that the offer letters sent in November clearly indicated that the offer was conditional on the budget. You cannot reasonably rely on a conditional offer in these circumstances. The offers were rescinded when the circumstances that made them conditional came to fruition.

Dammit, 55. I knew there was missing information. I'll shut up now. I am sorry for what you've gone through.

-50/57

55 - Thanks for the update.

No need to apologize! I only wanted to clarify and chime in with my opinion. I realize that I sound very disgruntled in my above post (55). Honestly, it's the disappointment of not being able to clerk talking more than anything. I am extremely lucky in that I do have a paid job to turn to, but I (likely) won't have the opportunity to clerk again.

55's sad story demonstrates precisely the kind of detriment that gives rise to a promissory estoppel claim under Section 90. 58, the problem with your analysis is foreseeability. It was foreseeable to the Commonwealth that people would rely on the job offer, and take actions in reliance on that promise, notwithstanding any boilerplate "conditional" language. It's that foreseeability that makes the Commonwealth liable (again, unless there's some immunity here). This point has been demonstrated on this blog so many times that it's now beyond dispute.

I think it's funny that despite our pretensions of being an ethical profession no one seems to to even consider the possibility that these clerks might have integrity. I realize the whole basis of conflict of interest law is the presumption that people lack integrity, but is it really all that likely that these clerks will compromise their interpretation of the law to please their future employers? Would their future employers really be all that pleased to have so flagrantly unethical lawyers working for them?

53 -

I did read the article.

"...said she received a letter in March saying the state had to withdraw a tentative offer of a superior court clerkship."

"On June 8, the SJC’s ethics committee approved the arrangement..."

I agree the Globe wasn't as clear as it could have been on the revocation issue. ATL's May article, which I linked above (twice... oops), does a much better job.

"58, the problem with your analysis is foreseeability. It was foreseeable to the Commonwealth that people would rely on the job offer, and take actions in reliance on that promise, notwithstanding any boilerplate "conditional" language. It's that foreseeability that makes the Commonwealth liable (again, unless there's some immunity here). This point has been demonstrated on this blog so many times that it's now beyond dispute."

Saying something is beyond dispute does not make it so. First, the "conditional" language was not boilerplate. It specifically addressed the current economic realities, which had not been so stark in years past. Second, it is not foreseeable that a "reasonable" person will rely on a conditional offer without allowing for a contingency plan. Admittedly, it IS foreseeable that someone who casually dismisses the conditional nature of an offer will rely on it to her detriment. I would suggest, however, that such a person is not "reasonable."

I'll stop arguing this point now, but I wish people would stop picking and choosing certain phrases from the Restatement (while ignoring others) to justify some phantom lawsuit that has no chance of success.

Comment removed by moderator.

I am also one of the 24 clerks whose conditional offer was withdrawn in March.

Last week, I received a letter announcing a "graduate internship" program with the Superior Ct. However, the letter was not an offer for a position in the program. Due to "limited resources" (read: if we can find space for you amongst our deferred associates), if I want to volunteer I must send an updated cover letter stating my interest, availability, and qualifications. Preference will be given to those who can travel and are willing to work 4 days per week.

I know this letter was intended as a gesture of good will, but, frankly, it feels like a slap in the face.

65=Section 90 denier.

I'm also one of 24 clerks whose offer was withdrawn and found the volunteer "graduate internship" letter incredibly insulting. Obviously an attempt to cover their bases. Pretty unbelievable how all so-called public interest jobs are being sniped by deferred associates who #1 didn't want such a low-paying job in the first place and #2 are being paid more via stipend than those who actually wanted the job. Oh sweet irony.

This is pretty disturbing if the facts are as they have been reported here. Since when did the govt. crawl into bed with biglaw? After the first set of clerks were informed that they wouldn't be paid, and after most of those clerks rejected the clerkships with no pay, were the clerkships then offered as voluntary positions to the general public - more important to the thousands of class of 2009 grads who didn't have biglaw deferrals and who might have taken a clerkship position voluntarily? Curious what the answer to this question is.

70: sounds almost unconstitutional to have bypassed the step in which you first have to offer the govt. job to the gen. public.

Scabs!

I feel terrible for all of the MA clerks and sincerely hope that they find suitable employment in a timely manner. The unfortunate reality, however, is that those who possess superior credentials (ivy league law school grads and top o' the top grads from lesser schools) are first in line for the jobs of their desire, high paying or not. Like it or not, that's the bottom line here.

Wow.

Apparently the state of Taxachusetts should be lumped in with other employers who outright rescind offers to people who make plans there.

In the future, you'd have to be an idiot to accept a job working there and make plans on that basis unless you have no other options - they do not honor their offers and may replace you at any time with someone else based on idiotic and changing regulatory schemes (see, e.g., above reference to keeping last year's clerks on for pay).

For shame, judges of Taxachusetts, for shame - your honor, whatever there was, has been tarnished.