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Law clerks cannot do pro bono legal work, Md. ethics panel rules

Judge’s law clerks may not perform pro bono legal services except those that do not involve practicing law, the Maryland Judicial Ethics Committee said in a new ruling.

The committee’s latest reported opinion was issued last month after a pro bono legal services group requested guidance on the extent to which law clerks can participate in pro bono activities, or volunteer legal work completed for no pay.

The unnamed organization suggested that law clerks assist with pro bono clinics involving property ownership, expungement and consumer protection and direct representation in situations without adverse parties, such as an uncontested divorce or estate planning.

The organization also proposed that law clerks must be admitted to the bar before performing pro bono work, that they work only on uncontested issues, that they ensure a complete separation between their duties as a law clerk and pro bono work, and that they are supervised by a lawyer.

But the committee found that law clerks are prohibited from practicing law in the same way that judges are. Even if law clerks performed pro bono work that was completely separate from their association with a judge, they still would not be permitted to represent clients.

Rule 18-103.10 of the Maryland Code of Judicial Conduct prohibits judges from practicing law with a few exceptions, including self-representation and offering unpaid legal advice to a family member. Part-time Orphans’ Court judges may also practice law under the rule.

“A law clerk is prohibited from practicing law to the same extent as a judge and, therefore, may not represent individuals in pro bono matters even if the law clerk follows the conditions and limitations set forth in the request,” the committee wrote in its five-page opinion.

Law clerks are not permitted to hold outside employment during their term working with a judge, with the exception of outside activities that are allowed for judges.

The ethics committee also reviewed analogous ethical questions in other states and found that ethics committees in Nevada, Texas and Arizona have made similar findings. Federal judicial employees are allowed to perform limited pro bono work, the committee found, but are prohibited from entering an appearance before any court or agency.

The committee recognized that pro bono work is a key professional responsibility for lawyers in Maryland, but concluded that law clerks cannot offer assistance to clients who walk into clinics or who need direct representation in “common areas of need that are largely uncontested.”

“A law clerk may, however, engage in pro bono activities that would not be considered the practice of law such as training, writing, or speaking about the law, as long as those activities are conducted in accordance with the Maryland Code of Conduct,” the committee found.

Maryland Court of Special Appeals Judge Kathryn Grill Graeff chairs the 15-member ethics committee, which consists of seven sitting judges, four former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.