The legal community places an enormous premium on clerkships, a necessary checkbox for one’s next legal job. Attorneys also deify judges, sweeping mistreatment under the rug, and telling prospective clerks that even a “challenging” clerkship (a euphemism for mistreatment) is “worth it” for the prestige.
Workplace mistreatment by judges is a persistent, unaddressed problem in federal and state courts. According to an internal 2021 D.C. Circuit survey, 57 judiciary employees reported experiencing harassment or retaliation. An additional 134 employees witnessed or heard about problematic behaviors. This suggests a significant problem.
Unfortunately, due to lack of transparency surrounding judiciary processes and the dearth of data around workplace misconduct, some in judiciary leadership have taken the position that the problem is “solved” because of no recent record of another (public) Kozinski-type incident.
Judicial misconduct has been difficult to prevent or discipline. These problems are compounded by fears of retaliation by judges and reputational harm in the legal community. This precludes law clerks from filing formal complaints, enabling the judiciary to both discount the scope of the problem and disclaim responsibility for correcting it. As if the lack of judicial accountability weren’t outrageous enough, judges have power to derail former clerks’ careers if they speak out. Fear of retaliation silences clerks.
A negative—or even a lukewarm—reference from a judge can destroy a law clerk’s career. As long as a judge’s word is the end all, be all, law clerks will not be empowered to seek accountability. Attorneys are taught to value self-preservation. As one law professor characterized the value of a judge’s reference, “Long after graduation, an employer might call your references, but they’ll definitely call your judge.” This is true whether you list the judge as a reference or not – and not listing them is a red flag.
There are several reasons why legal employers—including law firms and government employers—value a judge’s reference.
- A clerkship provides excellent training, so a judge’s seal of approval speaks volumes.
- Legal markets are small: no employer wants to anger a judge by hiring an attorney they do not recommend.
- Legal employers don’t want to buck a judge’s recommendation in the jurisdiction whether they appear before them, fearing retaliation.
Following my negative clerkship experience, I began working at my dream job at the DC US Attorney’s Office. But the judge gave me a negative reference. I wasn’t able to obtain a security clearance. My job offer was revoked. The USAO tossed me aside, affording me no opportunity to see the reference or dispute it before making consequential decisions about my career. After all, he was a judge in their jurisdiction.
Legal employers must do better.
Employers shouldn’t accept a judge’s reference unquestioningly. They should offer the applicant the opportunity to address it—especially if they were far enough along in the interview process for a reference check.
Employers shouldn’t call a judge if they’re not listed as someone’s reference, or if the applicant asks them not to. At some firms, when applicants shared that they were mistreated and flagged that the judge’s reference would likely be negative as a result, the firms agreed not to call those judges.
This practice is a model for employers, which should empower their attorneys to seek accountability. Trial attorneys who appear before judges every day—particularly prosecutors and public defenders—are tasked with doing justice. This motto should extend to their responsibility to speak out against injustice within judicial chambers. No one should be above the law—certainly not judges who interpret the law.
By empowering new attorneys to seek judicial accountability, we can change judiciary behavior; ensure that judges aren’t just good jurists, but also good managers; and send a message that misconduct will no longer be tolerated in the profession. We can’t continue to enable judges who retaliate against anyone—either clerks or employers. But the system will not change unless attorneys stand up for themselves.
Every legal employer should be part of the solution to empower the next generation of attorneys to advocate for change.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Aliza Shatzman is president and founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not.
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