|
|
|
|
| Confidentiality in Chambers: by Peter N.
Thompson The affidavits reflected the law clerks’
subjective opinions about the judge’s thought processes, and repeated
the judge’s statements, presumably made in the privacy of the judge’s
chambers. Invading the privacy
of judicial decision making by allowing adversaries to develop evidence
through law clerks’ perceptions of the trial judge’s thought processes
is a dangerous precedent. The Trial Greer was charged with murdering Kareem
Brown shortly after The focus on the trial judge began early
in the proceedings when defense counsel made “several attempts” to
recuse the trial judge for ex parte contacts with the prosecutor, with
the jury, and for bias.2
The trial judge and chief judge in the district denied
all of these motions. At trial, Greer produced two witnesses to corroborate
his testimony that he was at a friend’s house at the time of the killing. Other witnesses implicated “E” in the killing.3
Greer was convicted. On appeal, the Minnesota Supreme Court upheld
most of the trial judge’s rulings, but agreed with the defendant’s
claim that the trial judge’s ex
parte contact with jurors required a Schwartz hearing before a different judge. On remand, the chief judge of the district
held the Schwartz hearing,
taking testimony from six jurors and from the trial judge. In addition, Greer offered affidavits from the
judge’s law clerks, asserting among other matters, that the trial
judge appeared “visibly angry at defense counsel” during Greer’s trial,
and that he told the law clerks that he had “denied defense counsel’s
challenges for cause because he was angry with them.”4 After the Schwartz hearing the chief judge denied the motion for a new trial,
and the Minnesota Supreme Court affirmed that decision.5 Greer filed for post-conviction relief,
alleging bias on the part of the trial judge.
Greer claimed that the law clerks’ affidavits were newly discovered
evidence and “smoking guns” on the issue.
The Supreme Court denied the motion for post-conviction relief.6 The Court noted
that it had previously reviewed the trial judge’s rulings on two occasions
and found no error. The affidavits,
according to the Court, did not constitute actionable newly discovered
evidence because, even if presented during the trial process, they
would not have altered the previous rulings.7 The Supreme Court never questioned the propriety
of the judge’s law clerks working with, or at least supplying affidavits
to defense counsel revealing private communications with the trial
judge. In fairness to the Supreme
Court, the circumstances surrounding the production of the affidavits
were not raised in the briefs. Nonetheless,
by not commenting on this intrusion into the privacy of judicial decision
making, the Court may well be encouraging future litigants to seek
out court personnel to inquire about the judicial decision-making
process in order to develop grounds for overturning a decision. This was not the first situation where law
clerks disclosed deliberations in the United States Supreme Court. Edward Lazarus, a former clerk to Justice Blackmun, provided his perceptions of some of the private
deliberations at the Court in his book, Closed
Chambers: The First Eyewitness Account of the Epic Struggles Inside
the Supreme Court,11 Further, in the 1980s, Bob Woodward and Scott
Armstrong, authors of The Brethren,
claimed that 170 former law clerks were among the anonymous sources
for their book that revealed conference notes, diaries, unpublished
drafts of opinions, and private memos of the justices.12
The issue has been raised in some state courts as well.
In the late 1970s, a California Judicial Conduct Commission
caused a stir when it subpoenaed state supreme court law clerks to
testify at a public investigation.13 The context of disclosing judicial communications
about prior cases to journalists or to a Judicial Conduct Commission
in compliance with a subpoena, however, is substantially different
from disclosing the judge’s thought processes to attorneys from one
side of a contested case. In
the midst of an adversary proceeding, concerns about judicial privacy
and professional ethics overlap with the interests of a fair adversary
process and just results. The role of Sources of Confidentiality Although the relationship between a judge
and the judge’s law clerk varies, it is common for a judge to treat
the law clerk as part of the legal team that is addressing the case. The decision is the judge’s responsibility,
but “[l]aw clerks are not merely the judge’s errand runners. They are sounding boards for tentative opinions
and legal researchers who seek the authorities that affect decision.
Clerks are privy to the judge’s thoughts in a way that neither
parties to the lawsuit, nor his most intimate family members, may
be.”14 Allowing counsel to develop evidence
from a judge’s law clerk may restrict the judge’s willingness to engage
in free and robust debate — to test out different theories before
settling on a final decision. Although Law clerks as citizens may be called upon
from time to time to testify to matters that they observed around
the court house. Judicial law clerks in Professional codes and privilege statutes
touch on questions of law clerk confidentiality, but do not fully
address the issue. The Minnesota Code of Professional Conduct requires
that lawyers maintain the secrets and confidences of their clients.20 The professional code, however, does
not necessarily create an evidentiary privilege precluding testimony
or affidavits by clerks. The
attorney-client privilege could preclude the courts from considering
evidence reflecting confidential communications between an attorney
and client.21 Both the Code
of Professional Conduct and
the privilege statutes, however, are a bit clumsy in governing the
relationship between a judge and law clerk.
Certainly if the law clerk is a licensed attorney, or perhaps
even a law school graduate, the clerk might be viewed as an attorney
representing the judge as a client.
But answers to questions such as “Is the clerk an attorney?”
“Who is the client?” and in this context, “What is covered?” can be
difficult to predict. If the
clerk is an attorney hired by or directly assigned to one judge, then
that judge could be the client. If
the clerk is part of a pool of clerks, perhaps the court itself is
the client. Of course, this
issue is crucial to determine what is privileged and who can choose
to waive the privilege. Further, while the attorney-client privilege
might preclude confidential communications between the judge
and clerk, it likely would not preclude observations, as in the Greer case, that the clerks believed that
the judge was angry with defense counsel. There may be other legal sources protecting
the confidentiality of judicial decision making. It is possible that a state judge could claim
communications with law clerks are protected by a Privilege for Government
Communications,22 but this privilege is not well developed.23 The Canons of the Minnesota Code of Judicial
Conduct suggest that law clerks, like judges, should avoid ex parte communications, and that judges
are to require “court personnel to observe the standards of fidelity
and diligence that apply to the judge.”24 This requirement again is not very specific,
and seems to put the burden on the judge to somehow enforce this obligation.
The Rules of Professional Conduct25 put limitations on lawyers’
ex parte contacts with a judge, and perhaps these encompass
contacts with the judge’s staff.26 Again ethical codes do not necessarily
translate into privilege rules that preclude testimony. 2. Make
it a Crime.
The current trend in 3. Create a Statutory Privilege.
A new statutory privilege could be effective in precluding testimony,
or affidavits, about a judge’s private deliberations. Typically, privileges
protect only communications, however, and would not necessarily preclude
a clerk’s observations about whether the judge was angry or agitated.30 Further, privileges are not absolute
and can be waived by the holder, which raises issues about who should
own the privilege. Should the
privilege belong to the judge or to the court system?
Is it up to the communicating judge or the court system to
decide whether to waive the privilege and allow the clerk to provide
the testimony about the decision-making process? Absent unusual circumstances,
such as in ethical or criminal proceedings against the judge, why
should the law permit any testimony about a judge’s private thought
processes or deliberations to be used on appeal or in a subsequent
trial? 4. Develop a Common Law Rule. The
Supreme Court through its common law authority could develop a rule
that precludes the evidentiary use of this private information and
creates ethical obligations of lawyers and judges.
In Schwartz v. 5. Amend
Amending the evidence rule, however, would
not completely solve the problem.
Competency rules focus on who can provide testimony in a court
proceeding. They do not create privacy obligations nor even preclude
disclosure in civil discovery proceedings. 6. Amend the Ethics Codes. The Rules of Professional Conduct should be
clarified to define an ethical obligation of confidentiality with
regard to a law clerk’s professional relationship with a judge. Ethics
rules, however, do not reach all court employees and tend to be enforced
through disciplinary proceedings and not directly by the courts. 7. Implement Contractual Confidentiality
Agreements. The court system
should include confidentiality requirements in the employment contracts
of all judicial employees. At
present the Minnesota Court of Appeals uses confidentiality agreements,
but the author is unaware of other courts in Certainly, there should be some avenue available
to court personnel, including law clerks, when they believe that the
judge is acting in an illegal or unethical manner. In such cases, clear rules should authorize
the law clerk to report the matter to the Board on Judicial Standards,
or perhaps to the chief judge in the district.
But ex parte communications
to one of the parties during the adversary proceeding should not be
permitted. In particular, law
clerks’ opinions about the emotional state of the judge or their repetition
of isolated statements made by the judge during the decision-making
process should not become staples of appellate litigation.
2 Greer III, 673 N.W.2d
at 152. 3 Greer I, 635 N.W.2d
at 87. 3 4 Greer III, 673 N.W.2d at 154. 5 6 David Margolick, Eugenia Peretz &
Michael Shnayerson, “The Path to 7 Bush v. Gore, 531 8 Legal Times, 9 See Erwin Chemerinsky,
“Opening Closed Chambers,” 108 Yale L.J. 1087 (1999); Richard Painter,
“Matter of Ethics, Open Chambers,” 97 10 See Comment, “The Law
Clerk’s Duty of Confidentiality,” 129 U.Pa.L.Rev. 1230, 1230 (1981). 13 See id.; Shirley Abramson, “Should a
Clerk Ever Reveal Confidential Information?” 63
Judicature 361 (1980). 14 Hall v. Small Business
Administration, 695 F.2d 175, 179 (5th Cir. 1983). 15 16 17 18 State v. Kosloski,
355 N.W.2d 404 (Minn. 1984) (allowing judicial law clerk’s testimony
at a motion hearing that he observed defendant’s family member smiling
inappropriately during complainant’s testimony). See also State v. Hendry, 636 N.W.2d 158, 162
(Minn. App. 2001) (permitting the record to be supplemented by the
recollection of the judge’s law clerk about the circumstances of the
jury’s question to the judge). 19 Micketts v.
Johans, C8-02-711, 2003 wl 1875553 (Minn. App. 20 21 22 23 See generally 11 Peter N. Thompson, Minnesota
Practice, Evidence, §501.08 (3d ed. 2001). 24 Commentary,
25 26 See 27 See Alex Kozinski,
“Conduct Unbecoming,” 108 Yale L.J. 835, 835 (1999). 28 Code of Jud. Empl. Conduct, Canon 3 D. 29 See e.g. Minn. Stat. §572.37, which makes it a petty misdemeanor
for a person to act as a mediator for compensation without providing
a statement of qualifications. 30 The marital testimonial privilege, Minn.
Stat. §595.02, subd. 1(a) and perhaps the
doctor-patient privilege, 31 Schwartz v. Minneapolis Suburban Bus
Co., 104 N.W.2d 301 ( |
