Chief Justice Roberts’ recent 2018 Year-End Report is largely a description of the federal judiciary’s efforts to address sexual harassment, but he begins with a lengthy description of law clerks and their special role in the federal courts. The report begs an important question — just who are these law clerks to the state and federal judiciary? Who are these lieutenants of legal precedent, these oracles of oral argument, these bringers of the bench memo, these wardens against wikipedia references in judicial opinions, these maestros of making coffee runs, these Barons and Baronesses of the Blue Book?
As Chief Justice Roberts explains in his 2018 report, judges “benefit from the assistance of their law clerks, who bring energy, new learning, and fresh perspectives into their chambers. Law clerks of course do not share judges’ authority to decide cases, but judges nevertheless look to their clerks for help with research, testing legal analysis, and preventing mistakes. The benefits flow both ways. Law clerks learn the legal craft from jurists who have earned positions of high trust and responsibility within the profession.” Chief Justice Roberts notes that judges “employ law clerks to help perform their public work efficiently and optimally. The judge serves as a mentor, teacher, and supervisor; the clerk provides a wide range of assistance, such as performing legal research, drafting memoranda, and tracking action and needs for attention on busy dockets. The law clerk’s responsibilities will vary depending on the type of court and nature of the workload. But consistently, the relationship is one of close association, candid intellectual exchange, and confidentiality.”
This is a good generic description of law clerks, but it doesn’t describe what makes them tick. Here in Rhode Island, law clerks have different roles and incentives depending on whether they’re working in the federal courts or the state courts.
In the federal system, there are several different types of clerks and their roles will vary depending on the judge they work for, and almost all work only for one judge. Here are some of the more common types:
Federal Term Law Clerks. Most federal law clerks are term clerks, which means their tenure is limited to a specific length of time. They work for one judge. The typical term is one year, usually starting in September and ending in August, or from August to August. It’s up to the judge how long a term clerkship lasts, but judges who choose to hire term clerks can employ them for a maximum of four years per the policy of the Administrative Office of the United States Courts. A law clerk designated as a term law clerk can serve a maximum of four years in the federal system. In other words, if a term law clerk works for one year for one federal judge, that law clerk can serve a maximum of three years for a second federal judge as a term clerk.
Federal Career Law Clerks. It’s just like it sounds – federal career law clerks serve at the pleasure of their federal judge for an indefinite length of time. Career clerks work for one judge. Unlike term law clerks, federal career clerks do not have a limit on the number of years they can serve. It’s the judge’s choice to take a career law clerk, but they can only have one. Sometime around 2008, in a cost cutting move, the Administrative Office of the U.S. Court changed official policy and restricted federal judges to one career clerk per chambers, so that any other clerks must be term clerks. There is one loophole to this rule that arises when a judge retires and a career clerk wishes to continue clerking. In that circumstance, another federal judge who already has a career clerk can take on the career law clerk from the judge who recently retired, so that the judge will have two career law clerks. Also, a judge can hire a clerk initially as a career law clerk, or convert a term law clerk into a career law clerk.
Federal Administrative Law Clerks. This position, filled by a person with a law degree, is a hybrid between an administrative assistant and a law clerk. The person performs secretarial tasks in addition to performing legal work for the judge. In the modern digital age, some judges feel they do not need full time administrative assistants. Administrative Law Clerks can be term clerks or career law clerks, and they work for one judge.
Federal Temporary Law Clerks. These clerks arrive on the scene for even shorter periods than the typical one-year Term Law Clerks. Temporary law clerks are called into service if the judge’s regular law clerk goes on leave for some reason, or the regular law clerk is fired and there’s a need for a short term replacement. Temporary Law Clerks are often former federal law clerks who can hit the ground running.
Pro Se Law Clerks. This type of law clerk often focuses on civil rights cases and habeas corpus petitions. Unlike other types of federal clerks, pro se law clerks can work for multiple judges. The position is based on need as measured by the number of pro se filings (parties not represented by attorneys, who are often prisoners) in the federal district. Some federal districts employ a part time pro se law clerk, so that one pro se law clerk can work full time combined for two districts. They can be career clerks or term clerks, but they are often authorized for shorter terms (such as 2 years), subject to renewal based on forecasting of need.
All federal law clerks are subject to a strict Code of Conduct that is similar to the rules that apply to all federal judges excepts those on the U.S. Supreme Court. The compensation for federal law clerks isn’t too shabby. As of January 2019, for the Boston/Providence region, law clerks who passed the bar at least two years ago start with a salary at Grade 13, Step 1, or $96,411 (a new lawyer with no experience starts at Grade 11, Step 1, or $67,643). Law clerks are eligible to move up a step each year (e.g. for the second year of service, a law clerk who came in at Grade 13, Step 1 is eligible for Grade 13, Step 2, or $99,624). After two years of federal service, the law clerk is eligible to jump a grade to Grade 14, Step 1, or $113,929 in Boston/Providence. Career law clerks can move up through all the steps at Grade 14 to a maximum of $148,108. However, per the policy of the Administrative Office of the U.S. Courts as a cost cutting measure, a judge can have only one law clerk at the Grade 14 level, and all others must be no higher than the Grade 13 level. This forced gap in pay has likely caused some consternation in chambers that have two experienced clerks. Career law clerks are eligible for federal retirement benefits, but term clerks are not.
Upon information and belief, federal district judges in Rhode Island are allotted three full time staff members per chambers. This does not include the case manager assigned to each district judge who manages the judge’s docket, or the courtroom deputy who sits with the judge during court hearings. Some federal district judges choose to hire two law clerks and one administrative assistant, and other district judges choose to hire two term law clerks and one administrative law clerk. The United States Magistrate Judges in Rhode Island are allotted two full time staff members per chambers. This does not include their case managers; this is one person who performs a hybrid role of case manager/courtroom deputy (which is performed by two people for the federal district judges). Some magistrate judges choose to hire one law clerk and one administrative assistant, while others hire one law clerk and one administrative law clerk. Upon information and belief, each federal judge in Rhode Island (the district judges and magistrate judges) has a career law clerk.
In the Rhode Island state court system, law clerks come in two basic types — those that work for the Rhode Island Supreme Court for specific justices and those work for the trial courts and mostly rotate amongst judges and courthouses.
R.I. Supreme Court Clerks. The Rhode Island Supreme Court (the highest state court in Rhode Island) has five justices. Each justice employs two law clerks and an administrative assistant, except for the Chief Justice, who has three law clerks and an administrative assistant. For the most part, the law clerks are similar to term law clerks in the federal system. They serve one year terms from September to August, after which they leave to join law firms and begin their legal careers. Some serve two year terms. Historically, the Rhode Island Supreme Court Justices has not had many career law clerks. Currently, upon information and belief, a few of the Justices have a career law clerk.
R.I. State Trial Court Clerks. The trial courts in Rhode Island are serviced by what’s officially known as the Trial Court Law Clerk Department of the Rhode Island Supreme Court. This group is sometimes referred to as the law clerk pool. They serve one year terms from August to August. According to the most recent job posting, it is “a department of sixteen law clerks serves the Superior, the District, and the Family Courts and the Rhode Island Traffic Tribunal. Ten law clerks are based in Providence, and six law clerks are assigned among the county courthouses and the Garrahy Judicial Complex. The law clerks do legal research and writing in the areas of civil, criminal, family, administrative, and zoning law. Specific duties include preparing research memoranda and writing draft decisions.” Upon information and belief, the clerks rotate amongst the trial court judges as needed and are generally not assigned to a specific judge. The Business Calendar historically had one law clerk assigned to it; in recent years, the Business Calendar has expanded from one judge to three, and it may be that it has taken on additional law clerks. Some of the law clerks in the pool go on to clerk for Rhode Island Supreme Court Justices the following year, or take other clerkships outside Rhode Island.
I am not aware of a published online Code of Conduct that applies to Rhode Island state law clerks, but there probably is a personnel manual that covers ethics issues and procedures. As of 2019, according to the R.I. Judiciary’s job posting, the compensation for state law clerks starts at $55,040. The transparency.ri.gov website lists compensation as varying mostly between $53,504 and $56,141 for the individual state court clerks. Unlike many of the longer serving clerks in the Rhode Island federal court, most of the law clerks in the state court system are recent law school graduates. It isn’t uncommon for a clerk to work in the state court, and then move on to clerk in the federal court.
The Urban Legend of the Lead Law Clerk. There is one final type of law clerk that is more myth than official position — the Lead Law Clerk. The Lead Law Clerk need not have gone to law school, or know the ins and outs of legal citation, or have the latest legal development on the brain. The Lead Law Clerk knows the pulse of chambers, and governs with a firm yet benevolent hand, ensuring that all trains run on time. The Lead Law Clerk is not a job title, or a business card; it is a moniker that must be earned through toil, attention to detail, and force of personality. I once had the pleasure of serving beneath a Lead Law Clerk. It was an experience that shaped me in positive ways, and one that I will never forget. Not every chambers has a Lead Law Clerk, but when it does, it increases the potential for greatness. Cf. Presley v. United States, 895 F.3d 1284, 1287 n.3 (11th Cir. 2018) (explaining circumstances behind the Miracle on Ice).