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Law clerks’ journal articles should not mention judge, Md. ethics panel says

Andre M. Davis, a retired federal and Maryland state judge, says the commission has struck “the right balance” in its opinion on whether law clerks can journal articles for publication. (The Daily Record/File Photo)

Judges may permit their law clerks to submit law journal articles for publication so long as the author’s affiliation with the jurist goes unmentioned in the submission, the Maryland Judicial Ethics Committee stated in a published opinion this month.

The panel said the silence is necessary to ensure the clerk’s legal views are not presumed by the public to be that of the judge for whom they perform research and write drafts on matters that come before the court.

The ethics committee advised judges to review their clerks’ proposed submissions to make sure their affiliation is not identified, the committee added.

“The relationship between a judge and his/her law clerk is special, and, to some extent and in some matters, a law clerk can be seen as an extension of the judge for whom the clerk works,” the committee stated. “A law clerk’s actions reflect sufficiently upon the court that ethical requirements must be applied.”

The panel issued its opinion in response to an unnamed judge’s question regarding the ethical implications of a clerk submitting for publication an article advocating increased legal protections for employees who use or have used medical marijuana. The judge — identified in the opinion as “Requestor” — is running in the 2022 election to remain on the bench, the committee added.

In its opinion, the panel said the statutory right of Maryland state employees – including law clerks — to “freely participate in any political activity and express any political opinion” can, and in this case does, conflict with the Maryland Code of Judicial Conduct, which prohibits judges from being associated with comments that undermine public confidence in their impartiality.

Andre M. Davis, a retired federal and Maryland state judge, said Wednesday that the commission has struck “the right balance.”

The ethics opinion “recognizes the law clerks’ intellectual freedom” but also that “judges need to be held away from public controversies as much as possible,” Davis said.

The committee stated that the issue of medical marijuana use by employees could arise not only in court but possibly in the judicial campaign.

“Only if Requestor can be assured that the opinion of the law clerk cannot reasonably be understood to be the opinion of Requestor or reflect his/her political views or the opinions or political views of other members of Requestor’s court or of the Maryland Judiciary, may he/she permit its publication,” the committee stated.

“In other words, the article may be published without violation of the Code of Judicial Conduct only if it is silent as to the law clerk’s relationship with Requestor and the Maryland Judiciary,” the panel added. “Therefore, Requestor, before permission is granted to publish the article, should review the article to ensure that the clerk’s relationship to Requestor, requestor’s court, and the Maryland Judiciary is not in any way identified.”

Davis, the former judge, said he agrees with the committee’s call for silence regarding the clerk’s relationship to the judge rather than calling for a statement in the journal that the views expressed in the article are solely those of the clerk..

“To put in a disclaimer is something of a red flag” that would only bring “unwarranted and unnecessary attention to the relationship,” said Davis, who served on the 4th U.S. Circuit Court of Appeals, the U.S. District Court for Maryland, the Baltimore City Circuit Court and the Maryland District Court in Baltimore.

Maryland Court of Special Appeals Judge Kathryn Grill Graeff chairs the 13-member ethics committee, which consists of six sitting judges, three former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.