Law Clerks, Confidentiality, and David Lat's "Supreme Ambitions"

Out here in the great Pacific NW, the Portland outpost of the Ninth Circuit Court of Appeals just had a fantastic book club discussion of David Lat's new novel, "Supreme Ambitions," hosted by none other than Judge Susan Graber.  As the Washington Post noted, "Supreme Ambitions" is "an engrossing page-turner that focuses on the ... subject of federal judges and their law clerks."  It's also a thriller, a love story, and tale about an ethical quandry--all wrapped up in one extremely diverting novel!

Among his other pursuits, Lat is founder and managing editor of Above the Law, and thus tightly plugged into the sturm und drung of being a newly graduated lawyer in the 21st century.    This, combined with a tremendous variety of ages and experience at the book club luncheon (ranging from fresh-faced law clerks to almost 30 years on the federal bench), made for a fascinating and wide-ranging discussion about the topics in the book.

So as not to give away the plot of the book (which I highly recommend), I wanted to focus on one topic that sparked a good discussion at the book club meeting:  the question of confidentiality.  Judicial clerkships are an interesting beast, yoking the appointed or elected judges to brand new law graduates, and giving these law clerks unprecedented access to confidential information and influence over how cases are decided.  How strong is the ethos of confidentiality in this atmosphere?   If there is potential wrongdoing by a judge, is it the law clerk's duty to report it?  Or are law clerks simply extensions of the judge, not authorized in their own right to do anything without the imprimatur of the court?

We've had law clerk confidentiality leaks before, of course.  Edward Lazarus, a former Blackmun clerk, famously--and controversially-- published an entire book about the "secrets" of the Supreme Court in Closed Chambers.  As the blurb for the book itself notes, this caused a "firestorm of controversy," with an argument about confidentiality and ethical violation pitted against an argument about openness and transparency in the justice system.

This last point, in my opinion, is why both lawyers and laymen have a constant fascination with what goes on inside the judiciary.  Much of American adjudication takes place behind closed doors.  Any  insider account is all the more thrilling because the general public knows so little about the machinations of decision-making.   This is particularly true in criminal justice, where we have gone from a system of jury trials to a system of plea bargains, shifting the adjudications from public to private.   The public simply desires to peer behind the alabaster columns and underneath their robes, whether it's the local judiciary or the Supreme Court (which still refuses to allow cameras for oral arguments!)

In any case, if you want to have a captivating read that also gives you the inside scoop on the exciting life of a 9th Circuit law clerk in glorious Pasadena, CA (home to my beloved judge A. Wallace Tashima) , be sure to pick up Supreme Ambitions!

Comments

[John Steele]

Technically, the clerks are governed as "judicial employees" under The Code of Conduct for Judicial Employees and by other federal law. For more details, see the Federal Judiciary Center's pamphlet, "Maintaining the Public Trust" (2d ed.), easily found online. Pages 2-4 lay out the governing law.

Clerks who find themselves stuck in a quandary may seek ethics advice and/or advisory opinions from the designated Ethics Officer.

[Douglas Levene]

There may be hard cases where a clerk has a compelling reason to violate the duty of confidentiality owed to his judge and to the court. Ed Lazarus didn't have any such reasons. He just wanted to cash in on the secrets he had sworn to protect.