Wednesday, June 10, 2009

Deferred Associates May Serve As Judicial Interns

The Massachusetts Committee on Judicial Ethics has issued an advisory opinion on the propriety of allowing law firm associates with a deferred start date and financial benefits to serve as unpaid judicial interns. The committee does not view the proposed hiring of interns as prohibited:

...the principal focus of this program is to serve the needs of the understaffed Trial Court and the people it serves, mitigating the effects of a severe shortage in law clerks that the Trial Court faces beginning in September 2009 as a result of the economic crisis and budget cuts. Any private benefit to the law firms involved is secondary to that benefit, and it is no different from the benefit to any law firm which has hired an associate in the ordinary course whose start-date follows the completion of a judicial clerkship...

          Second, your inquiry raises the issue of whether the volunteer interns are a "gift" or "favor" to the judges of the Trial Court from the law firms. Section 4D(5) prohibits a judge from accepting "a gift, bequest, favor, or loan from anyone except for" certain situations, none of which applies here. The Committee is of the opinion that, even if the volunteer interns are gifts or favors from the law firms to the judges of the Trial Court, they are permissible under the Code given the double blind structure of the proposed program. "The Code must be read as a whole. . . . [and] [t]he Canons and Sections are rules of reason. Some conduct that may literally violate a provision of the Code [i.e., Section 4D(5)(h) here] will be permissible because it does not violate the policy behind the prohibition or is de minimis." Preamble to the Code. As concluded for the reasons described in this opinion, a disinterested objective observer would not question the impartiality of the judges of the Trial Court when the law firms donating the volunteer interns appear before the judges. The program therefore would not violate the policy behind Section 4D(5)(h) and is permissible under the Code.

(Mike Frisch)

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