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Law Clerk Code of Conduct Table of Contents



Rule 46. Law Clerk Code Of Conduct.

Canon 3. A law clerk should perform the duties of his office impartially and diligently


The duties of a law clerk take precedence over all his other activities. In the performance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

    (1) A law clerk should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.

    (2) A law clerk should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity.

    (3) Every person who is legally interested in a proceeding, or his lawyer, has full right to be heard according to law; but, except as authorized by law, a law clerk should neither initiate nor consider ex parte or other communications with such persons concerning a pending or impending proceeding.

B. Administrative Responsibilities.

    (1) A law clerk should diligently discharge his administrative responsibilities and maintain professional competence in judicial administration. Each law clerk must read and be familiar with both the N.H. Rules of Professional Conduct and the N.H. Code of Judicial Conduct.

    (2) Two important duties owed by the law clerk to the judge are loyalty and confidentiality. The law clerk enjoys a unique relationship with a judge that combines the best of employer-employee, teacher-student and lawyer-lawyer. While the law clerk must be aware of the proper respect due a judge, he should not fear expressing a contrary opinion when personal opinions are asked. The law clerk is always an assistant to the judge, who has the ultimate authority and responsibility in deciding a case. Without sacrificing intellectual honesty, the law clerk must accept the decision of the judge as if it were his own.

    The law clerk owes the judge the duty of confidentiality concerning everything that occurs in the process of decision-making and all statements or events that do not occur in open court or in open conference with attorneys present. This duty extends beyond the term of clerkship; and, after leaving the service of a court, the law clerk must use extreme caution in public or private comments about a judge or the court so as not to cause a loss of confidence in the judicial process or system. He should not reveal the process that the court employed in arriving at a particular decision or court policy that is not readily apparent from the decision or policy itself.

C. Disqualification.

    (1) A law clerk should disclose the basis of any possible disqualification in a proceeding in which his impartiality might reasonably be questioned to the judge for whom he serves. If, based on such disclosure, the judge agrees that the law clerk's impartiality cannot reasonably be questioned, the law clerk may participate in the case. Without limiting the obligation to these instances, the law clerk should make this disclosure in any instance where, with respect to a proceeding:

        (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

        (b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during that association as a lawyer concerning the matter, or the law clerk or that lawyer has been a material witness concerning it;

        (c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

        (d) he or his spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person:

            (i) is a party to the proceeding or an officer, director or trustee of a party;

            (ii) is acting as a lawyer in the proceeding;

            (iii) is known by the law clerk to have an interest that could be substantially affected by the outcome of the proceeding;

            (iv) is to the law clerk's knowledge likely to be a material witness in the proceeding.

    (2) A law clerk should inform himself about his personal and fiduciary financial interests, and should make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

    (3) For the purposes of this section:

        (a) the degree of relationship is calculated according to the civil law system;

        (b) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;

        (c) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:

            (i) ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the law clerk participates in the management of the fund;

            (ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization;

            (iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

            (iv) ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

    (4) During the course of a clerkship, each law clerk will no doubt be looking for employment to follow the year with the court. To avoid embarrassment to interested parties, as well as potential conflicts of interest, the following guidelines apply:

        (a) When interviewing, the law clerk must carefully avoid even the most indirect discussion of cases pending before the court.

        (b) The law clerk need not recuse himself from participation in a case involving a law firm to which an inquiry for employment is pending. If serious or active negotiations are underway, however, the law clerk should so inform the judge, and volunteer to withdraw from the case.

        (c) After the termination of the clerkship, the law clerk must maintain the confidentiality of the court. Discussions of a particular judge or case should be avoided. The former law clerk must also avoid conflicts of interest by not working on cases that he participated in during the clerkship.

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