Rule 46. Law Clerk Code Of Conduct.

An independent and honorable judiciary is indispensable to justice in our society. A law clerk should participate in establishing, maintaining and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

A. A law clerk should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A law clerk should not allow family, social, or other relationships to influence the law clerk's judicially related conduct or judgment. A law clerk should not lend the prestige of the office to advance the private interest of others; nor should a law clerk convey or permit others to convey the impression that they are in a special position to influence the law clerk.

C. Law clerks must avoid talking with attorneys about cases before the court. A law clerk must never communicate to the attorneys on a pending case the law clerk's opinion or attitude toward the issues pending before the judge. Moreover, once the decision is announced or opinion issued, the law clerk must avoid comment on it or disclosure of the extent of his or her involvement with it. However, this rule does not prevent a law clerk from providing as a writing sample to prospective employers copies of an opinion or order issued by the court in which the law clerk serves or had served, provided the law clerk performed substantial drafting and researching work in connection with the opinion or order, and provided further that the authoring judge gives his or her permission for such use.  This rule also does not prevent a law clerk from providing as a writing sample to prospective employers memoranda of law addressing legal issues prepared for the judge for whom the law clerk is employed, provided the judge gives his or her permission for such use. If engaged in conversation by an attorney about a pending matter, the law clerk should strive to terminate the conversation as quickly as politely possible. The law clerk should avoid even informal contact with attorneys with respect to a matter pending before the Court.

A law clerk must not give advice to attorneys on matters of substantive or procedural law, and must not do minor research tasks for attorneys.

Law clerks should be particularly careful to see that all attorneys are treated equally and not be tempted to provide a special favor for a law school colleague or an old friend.

The duties of a law clerk take precedence over all of the law clerk's 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. A law clerk 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 the law clerk deals in the law clerk's official capacity.

    (3) All persons who are legally interested in a proceeding, or their lawyers have, 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 the law clerk's 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, the law clerk 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 the law clerk's 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. The law clerk 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 the law clerk's impartiality might reasonably be questioned to the judge the law clerk 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) the law clerk has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

        (b) the law clerk served as lawyer in the matter in controversy, or a lawyer with whom the law clerk 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) the law clerk knows that he or she, individually or as a fiduciary, or the law clerk's spouse or minor child residing in the law clerk's 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) the law clerk or the law clerk's 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 keep informed about the law clerk's personal and fiduciary financial interests, and should make a reasonable effort to keep informed about the personal financial interests of the law clerk's spouse and minor children residing in the law clerk's 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 be recused 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 the law clerk participated in during the clerkship.
 

A law clerk may engage in law-related activities if in doing so the law clerk does not cast doubt on the law clerk's capacity to participate fully and impartially in performing the law clerk's assigned duties.

A. Avocational Activities.

A law clerk may write, lecture, teach, and speak on legal as well as non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the office or interfere with the performance of the law clerk's law clerk duties.

B. Civic and Charitable Activities.

A law clerk may participate in civic and charitable activities that do not reflect adversely upon the law clerk's impartiality or interfere with the performance of the law clerk's law clerk duties. A law clerk may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members.

C. Financial Activities.

    (1) A law clerk should refrain from financial and business dealings that tend to reflect adversely on the law clerk's impartiality, interfere with the proper performance of the law clerk's duties, exploit the law clerk's position, or involve the law clerk in frequent transactions with lawyers or persons likely to come before the court in which the law clerk serves.

    (2) Subject to the requirements of subsection (1), a law clerk may hold and manage investments, including real estate, and engage in other remunerative activity subject to the approval of the law clerk's judge.

    (3) Neither a law clerk nor a member of the law clerk's family residing in the law clerk's household should accept a gift, bequest, favor, or loan from anyone except as follows:

        (a) a law clerk or a member of the law clerk's family residing in the law clerk's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not law clerks; or a scholarship or fellowship awarded on the same terms applied to other applicants;

        (b) a law clerk or a member of the law clerk's family residing in the law clerk's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before the court where the law clerk serves.

    (4) For the purposes of this section "member of the law clerk's family residing in the law clerk's household" means any relative of a law clerk by blood or marriage, or a person treated by a law clerk as a member of his family, who resides in the law clerk's household.

    (5) A law clerk is not required by this Code to disclose the law clerk's income, debts, or investments.

    (6) Information acquired by a law clerk in the law clerk's law clerk duties should not be used or disclosed by the law clerk in financial dealings or for any other purpose not related to the law clerk's duties.

D. Fiduciary Activities.

A law clerk should not serve as an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the law clerk's family, and then only if such service will not interfere with the proper performance of the law clerk's duties. "Member of the law clerk's family" includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the law clerk maintains a close familial relationship. As a family fiduciary a law clerk is subject to the following restrictions:

    (1) A law clerk should not serve if it is likely that as a fiduciary the law clerk will be engaged in proceedings that would ordinarily come before the court where the law clerk serves, or if the estate, trust, or ward becomes involved in adversary proceedings in the court in which the law clerk serves or one under its appellate jurisdiction.

    (2) While acting as a fiduciary, a law clerk is subject to the same restrictions on financial activities that apply to the law clerk in the law clerk's personal capacity.

E. Arbitration.

A law clerk should not act as an arbitrator or mediator.

F. Practice of Law.

A law clerk should not practice law absent advance approval from the Supreme Court of the scope and nature of such practice.

G. Extra-judicial Appointments.

A law clerk should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice without the approval of the Supreme Court.

A. Political Conduct in General.

    (1) A law clerk should not:

        (a) act as a leader or hold any office in a political organization;

        (b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

        (c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.

    (2) A law clerk should resign upon becoming a candidate either in a party primary or in a general election for a non-judicial office, except that a law clerk may continue to hold office while being a candidate for election to or serving as a delegate in a State constitutional convention, if the law clerk is otherwise permitted to do so.

    (3) A law clerk should not engage in any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it or receive a waiver from the Supreme Court. This Code shall apply to all full- or part-time law clerks or interns in all courts. Violations shall be brought before the Committee on Judicial Conduct which shall have jurisdiction over any complaints arising under this Code. A law clerk should initially refer any ethical questions under this Code to the justice to whom the law clerk is regularly assigned. In the event that in a rare instance the law clerk feels dissatisfied with the decision of the justice, the law clerk may solicit the opinion of all of the justices on the court which the law clerk is serving. Such recourse to the justices shall be used with circumspection and without the divulging of such procedure to any persons except to the justices on the court which the law clerk duly is serving. Nothing in this Code shall limit any court from having any further and additional requirements for employment as a law clerk so long as they are not less restrictive than this Code. All courts or justices employing a full- or part-time law clerk or intern must file the name and address of such persons with the Clerk of the Supreme Court within two weeks of any such employment.