Is a judge's law clerk who worked on asbestos cases barred from later representing parties in other asbestos cases with the same defendants?

Plain-English summary

This opinion was published as Informal Opinion 87-2 and is consolidated in the WSBA advisory-opinions database under number 1073. A superior court judge wrote the committee about a conflict-of-interest problem for law clerks in asbestos litigation, which consumed a large share of the court's resources and of clerks' time. Clerk duties included telephone and personal contact with attorneys and staff, monitoring documents, organizing pretrial motions, observing settlement conferences, verifying notice requirements, presenting agreed orders, and maintaining a catalog of firms, trial dates, and filings, all under "style orders" used to manage a high volume of cases. Because the asbestos cases tended to share defendants, the judge asked how a clerk's later employment and conflicts would be affected.

The committee answered that working on asbestos cases as a clerk does not bar the clerk from later asbestos litigation. RPC 1.12(a) disqualifies a former law clerk from representing anyone in the same matter the clerk worked on (absent consent of all parties), but not from representing anyone who merely happened to be a party in that matter. The committee reasoned that a clerk handling public records, court-set deadlines, and legal memoranda is not exposed to the confidential relationship or privileged information the conflict rules are designed to protect. It gave the same answer to the second question, about a firm litigating asbestos cases in another jurisdiction where the defendants might overlap.

On the judge's third request, for recommendations so that disclosure to clerks would not jeopardize their future job prospects, the committee drew on a New York City Bar analysis and set out general principles and recommendations. In substance: the clerk should keep the judge advised of post-clerkship employment activities; the judge is the sole and final arbiter of the clerk's conduct on that subject; a lawyer should not discuss post-clerkship employment with a clerk for a judge before whom the lawyer or firm has a matter pending unless the judge has been notified, recusal of the clerk has been requested, and the judge is told of any interview solicited or offer made, accepted, or rejected; and a lawyer with no matters pending before that judge may discuss employment after notifying the judge that an interview has been solicited.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The former-judge-or-arbitrator rule then numbered RPC 1.12, quoted in full in the opinion, corresponds to Model Rule 1.12 and was later amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or procedure mentioned here.

Common questions

Q: Does clerking on a case permanently disqualify a former law clerk from that area of litigation?

A: No. The committee was of the opinion that RPC 1.12(a) disqualifies the former clerk only from the same matter the clerk participated in personally and substantially, not from other cases in the same field that happen to share parties.

Q: Why didn't shared defendants across many asbestos cases create a disqualifying conflict?

A: The committee reasoned that a clerk who handles public records, deadlines, and memoranda for the judge is not privy to any privileged communication, so the confidential-relationship and privileged-information concerns behind the conflict rules were not present.

Q: Does the answer change if the clerk's later firm litigates asbestos cases in another jurisdiction with the same defendants?

A: No. The committee gave the same answer for the same reasons.

Q: When may a lawyer discuss post-clerkship employment with a clerk for a judge the lawyer appears before?

A: Per the committee's recommendations, only after the judge has been notified that employment discussions are contemplated, recusal of the clerk has been requested for matters involving the lawyer or firm, and the judge is informed of any interview solicited or offer made, accepted, or rejected.

Background and rules framework

The opinion applies Washington RPC 1.12 (Former Judge or Arbitrator), corresponding to Model Rule 1.12, and quotes its text. Section (a) bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, arbitrator, or law clerk to such a person, absent consent of all parties after disclosure. Section (b) addresses negotiating employment and allows a clerk to negotiate with a party or attorney involved in a matter the clerk is working on, but only after notifying the judge. Section (c) sets the screening and notice conditions for the disqualified lawyer's firm. The committee treated the clerk's processing of public documents as falling outside the "personally and substantially" concern except as to the specific matters the clerk worked on.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.12 (Former Judge or Arbitrator), sections (a), (b), and (c), corresponding to Model Rule 1.12.

Other authorities cited:

• Committee on Recruitment of Lawyers, Bar of the City of New York, 36 Rec.A.B. City N.Y. 53 (1981): analysis of the employment of judicial law clerks.

See also

• Alaska Bar Ethics Op. 76-8: a former law clerk representing a client whose case was pending before the clerkship judge
• Florida Bar Ethics Op. 76-24: a former law clerk and a bankruptcy conflict
• Georgia Bar Ethics Op. 05-3: a law clerk appearing before the employer judge
• ISBA Ethics Op. 800: a former judge's disqualification from matters handled on the bench

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=184

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1073
Year Issued: 1987
RPC(s): RPC 1.12(b), 87-2
Subject: Judicial clerks in asbestos litigation; subsequent limits on employment [Published Informal Opinion 87-2]

Background A judge of the superior court wrote the committee regarding a potential conflict of interest problem faced by law clerks in asbestos litigation. The judge stated that in his county asbestos litigation consumes 20% of the court's resources; "and may consume as much as 50% of the law clerk's time." Law clerk duties include: telephone and personal contact with attorney and staff; monitoring flow of documents; organizing pretrial motions; observing pretrial settlement conferences; verifying notice requirements on agreed orders; presenting those orders; and maintaining a catalog of lawyer firms, trial dates and case filings. All asbestos cases are controlled by "style orders" designed to facilitate handling a high volume of cases. The law clerk may be substantially involved in the pretrial work in administering the style order. Since much of the asbestos litigation involves the same defendants, the judge was concerned as to the impact on a law clerk's future employment and potential conflict of interest. The specific questions asked were as follows: 1. Is the effect of such orders to prevent a law clerk who has worked on asbestos cases from appearing at any time in the future in asbestos litigation? For example, the law clerk is involved in Case "A" as a law clerk. Litigants in Case A must follow orders in style. The law clerk then becomes an employee in a firm which deals with asbestos cases and is assigned to Case "B." Typically, while A and B are unknown to each other, the defendants will be the same in both cases, as well as in Case "Z." Is this still a matter in which the lawyer was "personally and substantially involved?" In a typical situation, there are many defendants—for example, in one case file in this jurisdiction there are 125 named litigants. 2. Additionally, could there be a conflict event where the lawyer is working for a firm involved in asbestos litigation in another jurisdiction where the defendants would likely be the same, at least in part? 3. In summary, this court is seeking recommendations concerning the appropriate conduct by clerks in order that proper disclosure be made to such clerks so as not to put in jeopardy their future opportunities in the job market. Rules of Professional Conduct RPC 1.12 Former Judge or Arbitrator (a) Except as stated in section (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after disclosure. (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator. A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator. (c) If a lawyer is disqualified by section (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) Written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule. (3) An arbitrator selected as partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party. Committee's Answer and Opinion 1. No. While RPC 1.12(a) would certainly disqualify (absent consent from all parties) a law clerk from representing anyone in the same matter, it does not disqualify a law clerk from representing anyone who happened to be a party in that matter. The involvement of the law clerk in the typical case involves handling public records, making sure the court-set deadlines are met, and writing legal memoranda for the judge. The purpose of the conflict rules generally is to prevent lawyers from using a prior client relationship or privileged information gained therefrom to his own advantage or to his client's disadvantage. None of the confidential relationship or privileged-information-gained concerns are present where the law clerk is merely processing public documents and is not privy to any privileged communication. 2. No. For the reasons cited above. 3. The judge's third request seeks the committee's opinion as to appropriate conduct by clerks "so as to not put in jeopardy their future opportunities in the job market." To address this request the committee has reviewed a thoughtful analysis of the problem of the employment of clerks by the Committee on Recruitment of Lawyers, Bar of the City of New York, 36 Rec.A.B. City N.Y. 53 (1981). General Principles: (a) It is important for the administration of justice that judges have available to them a pool of able young lawyers to serve as law clerk. (b) Law clerk positions will not be attractive if the service impacts on future employability. (c) Judges have the duty and responsibility to set guidelines for the conduct of clerk interviewing for post-clerkship jobs. (d) Lawyers have the duty to follow any individual judge's rules with regard to discussing future employment with law clerks and have a duty to avoid the appearance of impropriety in discussing employment with a law clerk of a judge before whom the lawyer or law firm has a matter pending. Recommendations: 1. The law clerk should keep the judge to whom he or she reports advised as to his or her activities in regard to post-clerkship employment. 2. The judge to whom the clerk reports is the sole and final arbiter of the conduct of the clerk in regard to post-clerkship employment. 3. A lawyer shall not discuss post-clerkship employment with a law clerk for a judge before whom the lawyer or his law firm has any matter pending unless: (a) The judge has been notified that such employment discussions are contemplated. (b) The judge has been requested to recuse the law clerk from participation in any matter pending before the court in which the lawyer or law firm is involved until such a time as the judge determines that recusal is no longer necessary. (c) The judge shall be notified of the fact of an interview having been solicited or an offer having been made, accepted or rejected. 4. A lawyer may discuss post-clerkship employment with a law clerk for a judge before whom the lawyer or law firm has no matters pending after notification to the judge that an interview has been solicited.