LEGAL ETHICS AND JUDICIAL LAW CLERKS: A NEW DOCTRINAL ACCOUNT.

AuthorMartin, Andrew Flavelle
PositionCanada

Abstract

Judicial law clerks are largely overlooked in the Canadian legal literature. This article provides a new doctrinal account of the ethical obligations of law clerks that is rooted in the fact that at least some of the major work of law clerks constitutes the practice of law--and thus that law clerks' ethics are lawyers' ethics. It argues that the lawyer's duty to encourage respect for the administration of justice transposes some of the ethical obligations of the judge into professional obligations of the law clerk. The article also argues that the law societies' regulatory and disciplinary jurisdiction over law clerks is at least largely incompatible with judicial independence.

Contents Introduction Part 1: The nature of clerks' duties: Judicial law clerks practice law Part 2: The nature of the clerk-judge relationship: A lawyer-client relationship Part 3: The ethical duties of law clerks 3A. The ethical duties of law clerks: Impartiality and outside interests 3B. The ethical duties of law clerks: Post-service restrictions 3C. The ethical duties of law clerks: The duty to report fellow lawyers to the society Part 4: Law Society jurisdiction and judicial independence Reflections and conclusion Introduction

Judicial law clerks have become an accepted and apparently integral part of the Canadian judicial apparatus. Nonetheless, there is no compelling doctrinal account of the functions of law clerks. These functions have important implications for how law clerks are regulated and how their ethical obligations compare to those of lawyers, on the one hand, and judges, on the other.

The last decade has seen an explosion of Canadian legal literature on public sector lawyers. (1) However, there is little Canadian legal literature on judicial law clerks, and only some of that is recent. (2) Most of this literature focuses on articulating the role and duties of law clerks, (3) and most specifically deals with law clerks at the Supreme Court of Canada. (4) In the only Canadian article that explicitly addresses ethics for law clerks, (5) Josh Wilner argues that law clerks' ethical duties are "derivative" of those of their judges because their functions are derivative of those of their judges. (6) However, Wilner is vague and non-committal as to the precise nature of the clerk's status and role. Moreover, while the Canadian Judicial Council has jurisdiction over all federally appointed judges, it has no derivative jurisdiction over law clerks. Wilner's account thus implies that law clerks are accountable, if at all, only to their judges as superiors and to the government as the employer. These kinds of accountability are weak in their protection of the public interest, particularly insofar as most law clerks are future lawyers.

In this article, I propose a new doctrinal account or conceptual framework for the ethical duties of law clerks. I argue that law clerks practice law and thus share the professional duties applicable to all lawyers. However, the identity and nature of the court as an institutional client has important implications for those professional duties. Following and elaborating on my work elsewhere, I argue that the duty to encourage respect for the administration of justice transposes some of the ethical obligations of judges into professional obligations of their law clerks as lawyers. (7) While the end result is somewhat similar as under Wilner's approach, insofar as the duties of law clerks are similar to or derived from the duties of judges, my framework has a clearer and sounder doctrinal and legal footing and has important regulatory implications.

This article is organized in four parts. In Part 1, I demonstrate that at least some of the major functions of law clerks constitute the practice of law--in particular, recommendations for dispositions of appeals and applications for leave to appeal and drafting and substantive editing of decisions. Then, in Part 2,1 explain that the clerk-judge relationship is best understood as a lawyer-client relationship. While the formal client is the court as an institution, for practical purposes the client is the judge or judges to whom the clerk is assigned. In Part 3,1 set out the special duties of law clerks. It is here I make my core argument: that the lawyer's duty to encourage respect for the administration of justice transposes at least some of the ethical obligations of the judge into professional obligations of the law clerk. I argue in Part 4 that purported law society jurisdiction over law clerks impedes to some extent judicial independence. While the role of law clerks constitutes the practice of law, courts are thus free to employ clerks other than lawyers or students-at-law. Finally, I conclude by reflecting on the implications of my analysis.

I begin with three key points. The first introductory point is a definitional one. I recognize that law clerks are often articled students, and I include them within my meaning of "lawyer"--as do the rules of professional conduct. (8) For the purposes of this article, the professional duties of lawyers and articled students are identical.

Second, if judicial law clerks among other things practice law (as I will argue in Part 1), and the clerk-judge relationship is among other things a lawyer-client one (as I will argue in Part 2), why are a law clerk's professional duties as lawyers defining and dominant--as opposed, for example, to their duties as employees? The professional duties as lawyers are defining and dominant because they are the most immutable and definitive: lawyers cannot contract out of them and, with few exceptions, clients cannot relieve lawyers from them. They are also stringent. Moreover, the fact that lawyers provide legal advice alongside other services to the same client does not negate, and indeed may complicate, their professional duties as lawyers. My analysis is grounded in the functions performed by law clerks, not their status. I argue that the defining characteristic of law clerks' ethical duties is that all law clerks practice law, even though not all law clerks are lawyers or articled students. Thus, law clerks' ethics are not severable from the definition of the practice of law.

The third introductory point is that my focus here is on the ethics of Canadian law clerks under Canadian law. While there is abundant literature on law clerks in other common law jurisdictions (particularly the US), (9) like the Canadian literature, it focuses more on the roles and duties and selection of law clerks and their legitimacy, (10) especially at apex courts, than on their ethics." Without denying the value of comparative work, this article uses a Canadian-centric approach. (12)

Part 1: The nature of clerks' duties: Judicial law clerks practice law

The existing Canadian legal literature on law clerks does not explicitly address the question of whether law clerks practice law, or the related question of whether the legal and professional obligations of lawyers apply to law clerks. In order to identify and understand the ethical obligations of law clerks, and indeed whether legal ethics--including the law of lawyering--applies to them, these questions must first be answered. 1 do so in this part. I start by considering definitions of the practice of law. I then identify how, based on existing accounts in the legal literature, at least some of the major work of law clerks constitutes the practice of law. Indeed, it is this functional characterization that grounds my doctrinal account. That is, I argue that the defining characteristic is that all law clerks practice law, even though not all law clerks are lawyers or articled students.

There is some variation among the provinces and territories around the definition of the practice of law. Most statutes on the legal profession provide a definition, or examples, or both. The most concise definition comes from Nova Scotia:

The practice of law is the application of legal principles and judgement with regard to the circumstances or objectives of a person that requires the knowledge and skill of a person trained in the law, and includes any of the following conduct on behalf of another:

(a) giving advice or counsel to persons about the persons legal rights or responsibilities or to the legal rights or responsibilities of others',

(b) selecting, drafting or completing legal documents or agreements that affect the legal rights or responsibilities of a person;

(c) representing a person before an adjudicative body including, but not limited to, preparing or filing documents or conducting discovery;

(d) negotiating legal rights or responsibilities on behalf of a person. (13)

Legislation in the other provinces and territories is to similar effect but tends to provide more examples. (14)

From what little has been written in the Canadian legal literature, the role and duties of a judicial law clerk are fairly clear, at least at the Supreme Court of Canada. Michael John Herman lists eight duties of Supreme Court of Canada law clerks: "[p]reparation of 'bench memoranda'", i.e. "a memorandum of fact and law ... the Justice will carry it with him onto the bench for purposes of reference"; (15) "[a]ttendance at the oral hearing"; (16) "[participating in the judicial decisions"; (17) "[l]egal research"; (18) "[preparing draft reasons"; (19) and "[e]diting the draft judgment". (20) Herman emphasizes that the last function, editing, "is perhaps the most valuable service that the clerk can perform." (21) He also includes a ninth potential duty: oral or written recommendations on applications for leave to appeal. (22)

Similarly, Mitchell McInnes, Janet Bolton & Natalie Derzko observe that "[t]he primary duties [of law clerks] continue to include the preparation of leave memoranda and bench memoranda, and the provision of assistance in the drafting of reasons for judgment." (23) In the same vein, Sossin writes that "[p]robably the most important role...

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