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Options For Law Clerks To Address Wrongful Conduct?

It’s a short list. 

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angry upset stressed out young woman female associate lawyerThis week, the federal Office of Judicial Integrity (OJI) and circuit Directors of Workplace Relations (DWRs) are holding a series of online information sessions about options for law clerks to address wrongful conduct in the judiciary. It could be a short meeting, because it’s a short list.

In 2018, following high-profile allegations against notorious harasser and former Ninth Circuit Judge Alex Kozinski, the Administrative Office of the U.S. Courts (AO) created a national Workplace Conduct Working Group to “study” misconduct in the federal judiciary and make recommendations. Modest reforms have been implemented, including the creation of the OJI and the judicial integrity officer, and some reforms to the Employee Dispute Resolution Plan (EDR).

There are three levels of review to address wrongful conduct: EDR coordinators within courthouses, circuit DWRs, and the national OJI. However, law clerks often tell me “no one with a U.S. Courts email address is impartial” and express skepticism that internal judiciary mechanisms can effectively address their concerns, comparing this to a private employer’s human resources department, which historically protects employers against liability rather than assists with employee grievances.

Law clerks who are mistreated have two options because the judiciary is exempt from Title VII of the Civil Rights Act of 1964, the anti-discrimination law that protects their counterparts throughout the legal profession: EDR and a formal judicial complaint under the Judicial Conduct and Disability Act (JC&D). There is, of course, a third option: suffer in silence and try to move on — an option too many in the legal profession encourage clerks to choose. Both EDR and the JC&D are inadequate redress: they fail to recognize the enormous power disparity between judge and clerk and the substantial headwinds against reporting misconduct. However, as a new class of thousands of law clerks across the country start their clerkships this fall, it’s important to be transparent about the current state of workplace protections (or lack thereof) in the federal judiciary.

EDR is the federal judiciary’s internal dispute resolution process. Current law clerks (or other judiciary employees, including federal public defenders) can seek limited redress — particularly  reassignment — if they are mistreated. Yet the plan is highly flawed: EDR is neither truly impartial nor confidential because the presiding judicial officer, a fellow judge in the courthouse where the complainant law clerk and respondent judge work, is tasked with leading the investigation, and fellow judges are notoriously unwilling to discipline their colleagues. Law clerks tell me presiding judicial officers have commented about their judiciary colleagues’ alleged misconduct: “He probably didn’t mean it” and “But he’s such a nice person.”

EDR offers three options: informal advice, assisted resolution, and filing a formal complaint. Clerks alleging abusive conduct must engage in dispute resolution before filing a complaint. There are several tight deadlines clerks must follow throughout the EDR process, including a 180-day filing deadline. Law clerks engaging in EDR often need to hire attorneys, especially if the process includes discovery and a hearing. But attorneys are notoriously unwilling to take on law clerk cases pro bono because they fear going up against judges in the jurisdiction where they represent paying clients and because monetary remedies are not available through EDR.

After the presiding judicial officer reviews the complaint, they determine whether to permit discovery, let alone a hearing. Importantly, each circuit runs the EDR process differently: there is no meaningful oversight over each circuit’s EDR proceedings. Employment attorneys who’ve represented law clerks described EDR as “a kangaroo court” where law clerks basically “had no rights” and that the multi-month process “lacked even the appearance of due process.”

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Engaging in EDR can overshadow the majority of the clerkship. At the end, the best a law clerk can hope for after potentially risking their reputation is reassignment to a different judge. This is challenging, since judges hire clerks far in advance and a chambers would need to make room for a new clerk, perhaps necessitating the law clerk move to another state. Not to mention, the mid-clerkship move might arouse suspicion in future job interviews. Troublingly, the judiciary has, in some instances where they reached a positive resolution through EDR, required the law clerk to sign a nondisclosure agreement, even though this is not delineated in the EDR. An NDA restricts the clerk’s ability to share their experience, which can have long-term psychological consequences, while potentially covering up a judge’s misconduct.

Not surprisingly, law clerks rarely engage in EDRs. They fear retaliation (and are not legally protected against it because the judiciary is exempt from Title VII), as well as reputational harm. Too often, law clerks suffer in silence and simply hope the judges who mistreat them during their clerkships do not also attempt to derail their careers.

Clerks can also file formal complaints against judges under the JC&D, the process governing the investigation into 96-year-old Federal Circuit Judge Pauline Newman. This is not a mode of redress for law clerks — although holding powerful people accountable when they engage in misconduct is empowering. Judges can potentially be disciplined under JC&D through sanction or suspension. They can only be removed from office through congressional impeachment, which is exceedingly rare.

The chief judge in the circuit where the complainant law clerk and respondent judge work — again, one of the respondent judge’s colleagues — reviews the JC&D complaint. Chief judges are empowered to investigate judges absent formal complaints. However, a fruitful investigation requires witnesses, and the same law clerk fears about retaliation often preclude them from participating.

Few law clerks file complaints under either the JC&D or the EDR each year. EDR data is unknown: the judiciary doesn’t release this information because, I’ve been told, it would apparently risk violating complainants’ confidentiality. This argument is unpersuasive. First, JC&D data is released, separated by circuit, without violating confidentiality. Second, potential complainants must know how often clerks engage in EDR and the outcomes of those complaints in order to decide whether the process is right for them. Furthermore, by reviewing EDR data, those tasked with potentially exerting much-needed oversight over the judiciary could determine whether EDR requires further revisions, or a complete overhaul.

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I do not dissuade anyone from engaging in the EDR process or filing a JC&D complaint. In fact, law clerks should consider pursuing both options. These are the only existing options to support mistreated clerks and hold judges accountable right now. However, it’s imperative to highlight law clerks’ inadequate options, both so they enter their clerkships with a true understanding of the limited nature of their rights and resources, and so those who work within and outside the judiciary can understand the urgency of reform.

Mistreated clerks typically share the same standard fact pattern with me. A law clerk approaches either an EDR coordinator (in their courthouse) or a DWR (in their circuit) to confide in them and seek advice. The clerk’s most important questions are: (1) Will the process remain confidential? And, (2) Will I be protected against retaliation? Sadly, the answer to both questions is no. Some law clerks are counseled not to file complaints: they’re told that as the lone, or one of just a few, complainants against a judge, they will not be successful.

Of course, it’s nearly impossible for a law clerk to file a complaint anonymously. The respondent judge will have the opportunity to respond and confront the witness against them, particularly in EDR. Additionally, even if it were theoretically possible to anonymize complainants, a judge has a few clerks each year and would likely identify the complainant. But beyond being identifiable, there is no protection for clerks against retaliation.

Retaliation precludes law clerk reporting. Judges have enormous power over former clerks’ careers and reputations. Clerks depend on judges for recommendations and career advancement. Even a lukewarm — let alone a negative — reference can tank a clerk’s career prospects. Years after a clerkship, a prospective employer may call an applicant’s references, but they’ll likely contact their judge.

Retaliation can be an explicitly negative reference during the job application process that blackballs the applicant. But there’s also the more insidious gossip an unhappy judge can circulate around a courthouse or throughout the legal community, which is much harder to prove and prevent.

Until the judiciary takes meaningful steps to prevent judges from retaliating against clerks who come forward, we cannot truly address wrongful conduct. Here are some changes the AO should implement to meaningfully address clerks’ concerns:

  1. Support the Judiciary Accountability Act (JAA), which would extend Title VII protections, including protection against retaliation, to judiciary employees. It would also revise the judicial complaint process, standardize EDRs, create several confidential reporting channels, and establish a process to connect law clerks with legal counsel.
  2. Train judges on their role as managers, as well as on EDR. These trainings should be annual and mandatory. If they’re optional, judges who treat their clerks with respect will participate, while those engaging in misconduct will evade training.
  3. Warn judges they’ll be disciplined for retaliating against clerks who report mistreatment. Fear of retaliation is the main reason clerks do not report, yet the judiciary has taken no meaningful steps to prevent this.
  4. Create a point of contact in each circuit for former clerks to seek help in preventing retaliation. Former clerks who reported and now fear retaliation could reach out to alert this contact of upcoming job interviews: the contact could remind the judge that retaliation is prohibited, and they’ll be disciplined for doing so.
  5. Collect and publicly report annual data on employees’ use of EDR (in addition to the results of the planned Workplace Culture Assessment). EDR data can be anonymized. Clerks need to know if the process works.

These are back-end solutions for law clerks experiencing mistreatment. The judiciary should take forceful steps to ensure that fewer judges mistreat their clerks, and those who do are swiftly disciplined.

Given federal clerks’ lack of rights, protections, and resources, it’s particularly important for clerkship applicants to identify positive working relationships with judges. This is not a critique of clerking: it’s a critique of clerkship hiring. Applicants must be mindful about who they clerk for: they cannot be right now, due to the lack of transparency in the clerkship application process. Increasing transparency by empowering clerks to share information about judges in a verified, anonymous platform would prevent more negative experiences.

The AO must implement meaningful protection against retaliation to improve judiciary workplace culture. They should take workplace misconduct more seriously — acknowledging the scope of these problems and their role in correcting them.

At this week’s OJI information sessions, law clerks should ask:

  • Why does the AO oppose the JAA?
  • How does the AO protect clerks against retaliation?
  • How frequently is EDR used by clerks, and what are the range of outcomes?
  • How prevalent is workplace misconduct in the judiciary, and why hasn’t there been meaningful data collection?

Law clerks — and prospective clerks — cannot wait another year for urgently needed reforms. The federal judiciary’s modest efforts over the past few years are tone-deaf to law clerks’ concerns, particularly about retaliation, suggesting a lack of understanding about the day-to-day experience of clerking. Through meaningful reform, we can ensure the federal judiciary is an exemplary workplace for clerks — the public servants supporting the daily functioning of our courts.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.

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