Judge Davies frequently relies on a law clerk, who is known for her exceptional legal research skills, to draft initial opinions. In a particularly challenging case involving complex federal regulatory law, Judge Davies was pressed for time and permitted the law clerk to conduct independent research, including consulting with a former law professor of the clerk who is an expert in the field. The professor provided informal guidance on interpreting certain ambiguous statutory provisions. Judge Davies subsequently adopted the clerk's draft, which incorporated insights from the professor, without disclosing the clerk's consultation with the professor to the parties. Did Judge Davies act appropriately?
- AYes, because law clerks are authorized to assist judges with research, and consulting experts is a valid part of legal research.
- BNo, but only if the professor received compensation for their informal guidance.
- CNo, because allowing a law clerk to consult an outside expert on a pending case without the parties' knowledge or consent constitutes an impermissible ex parte communication.
- DYes, as long as the judge ultimately made the final decision and did not simply defer to the clerk's or professor's judgment.
Show answer & explanationAnswer & explanation
Correct answer: C. No, because allowing a law clerk to consult an outside expert on a pending case without the parties' knowledge or consent constitutes an impermissible ex parte communication.
While judges may use their law clerks for research, clerks are generally extensions of the judge's office and are bound by the same ethical rules regarding ex parte communications. A law clerk consulting an outside expert on the merits of a pending case, without the knowledge or consent of the parties, is an impermissible ex parte communication, as it allows one side to indirectly gain an advantage or introduce information outside the adversarial process.
Why the other options are wrong
- A. While clerks can assist, they cannot conduct ex parte communications that the judge themselves could not.
- B. Whether the professor was compensated is irrelevant to whether the communication itself was ex parte and improper.
- D. The judge's ultimate decision-making power does not cure the procedural impropriety of an ex parte communication by their staff.
Judicial Ex Parte Communication (Staff)
Judges must ensure their staff (e.g., law clerks) do not engage in ex parte communications that would be impermissible for the judge to conduct personally.
- Staff are extensions of the judge's office.
- Prohibition applies to communications on the merits of a pending case.
- Requires disclosure to parties if an improper communication occurs.
Memory trick: A judge's 'staff whispers' must not be 'secret' concerning 'case facts'.