Advice For Law Clerks – From Someone Who Actually Understands Law Clerks

I receive a large uptick in outreach from mistreated law clerks around the holidays, including those who have been fired or quit their clerkships early. Clerks are four or five months into their positions: they know it’s not working out, but they don’t know where to go for help — besides my nonprofit, The Legal Accountability Project (LAP). Clerks recognize their work situation isn’t normal, and they deserve better.

Winter was a particularly challenging period in my own clerkship. I remember the sense of dread I felt walking to work each day. I briefly contemplated quitting, but I knew I needed a full year of work experience to be eligible to apply for my dream job as a federal prosecutor. My mentors advised me to “stick it out.” I didn’t know anyone who’d quit their clerkship, and I worried about the implications for my career. And I suspected my family would not be supportive of that decision. So I tried to stick it out, with consequences that now fill several pages of internet searches.

Remarkably, over the past 18 months, I’ve become the national clerkships advisor for students and the national workplace conduct counselor for clerks. I’m heartened that LAP is a trusted source for clerkship resources, since I launched the nonprofit to correct injustices I experienced as a student and clerk. However, the fact that thousands of students and clerks approach me rather than those officially entrusted with these duties suggests that the clerkship system is a five-alarm fire and that law schools and the judiciary have failed in their duty of care to students and employees. They must do better.

Neither clerkship directors nor federal directors of workplace relations and employee dispute resolution (EDR) coordinators seem to understand the daily experience of being a judicial law clerk. Perhaps it’s because they’re years or decades removed from being one themselves, they never served as a clerk, or they were not properly trained before taking on these particularly consequential roles. Clerks view me as a trusted resource, not only because of the nonprofit I lead, but because I’ve been there — and came out the other side stronger and more empowered. My negative clerkship experience is more common than some would care to admit, which is why it resonates with so many attorneys who have read about it or heard me share it.

I invest time weekly to counsel clerks on their options — not wearing an employment attorney hat (though I am happy to connect clerks with an attorney) but as a former clerk with battle-worn expertise. I hear from clerks about bullying; “workload issues” (overworking clerks or requiring clerks to handle nonjudicial tasks); judges who refuse to train, supervise, and provide feedback (then berate clerks for perceived “mistakes”); sexual and gender-based discrimination and harassment; fear of retaliation and reputational harm for speaking up; and judges retaliating against clerks by giving negative job references and getting them blackballed from jobs.

Troublingly, I also hear from clerks who attempted to use the judiciary’s internal workplace dispute resolution mechanisms — such as speaking with an EDR coordinator or a director of workplace relations — who dissuaded them from filing a complaint, telling them there weren’t enough co-clerks willing to corroborate their experiences for them to achieve successful resolution, or who suggested the process would not remain confidential. One particularly mind-boggling trend is clerks who tell me the judge would be surprised to learn they’re unhappy, evidencing a total lack of self-awareness on the part of some judges about how they’re managing, or mismanaging, their employees.

Here are some questions clerks always ask me:

1. What are my options for redress?
2. Can I report the mistreatment anonymously?
3. Will I be protected against retaliation by the judge?
4. Will I experience reputational harm in the legal profession when job searching if I speak out, leave my clerkship early, or file a complaint?
5. Do you hear from other clerks like me? How common is my situation?
6. Is what I’m experiencing normal?

Based on the outreach LAP fields from numerous channels, it is apparent — and appalling — that judges mistreat clerks in every federal circuit (and, I suspect, most federal courthouses) and every state, each year. Some judges are repeat offenders. Some are notorious for bad behavior. Some pit clerks against each other, favoring one and mistreating the other. I hear about all manner of troubling conduct, none of which the judiciary seems to take seriously, given leadership’s general unwillingness to meaningfully engage or implement changes.

I tell clerks that their experiences are not rare but that they are rarely shared publicly due to the culture of silence and fear surrounding the judiciary. It’s one of placing judges on a pedestal and disbelieving clerks. I tell them they’re not alone. If what you’re experiencing feels wrong, it is wrong. Mistreatment by those in positions of power says nothing about you and everything about the judge. We should hold judges to the highest ethical standards, not the lowest.

If you’re a law clerk and your judge is mistreating you — or you’ve been terminated or retaliated against — here’s some of my advice:

1. I hear from mistreated clerks every single day. Know that your experience is not rare, even though it’s rarely shared publicly.
2. Your (inadequate) options, particularly as a federal clerk (although they’re similar in many state jurisdictions) are an informal conversation with a director of workplace relations or EDR coordinator; an EDR complaint; and a Judicial Conduct and Disability Act complaint.
3. Document everything. Take notes, forward yourself emails, confide in colleagues, and keep track of who you confided in.
4. Consider speaking with an attorney. Some employment attorneys are willing to assist law clerks pro bono. I try to connect clerks because I remember how challenging it was for me to find an attorney.
5. Consider filing a complaint. Documenting the mistreatment will help protect you against retaliation because you can point to evidence of the mistreatment if the judge gives you a negative reference. And taking action is the only way to prevent the judge from continuing to mistreat you by exerting influence over your post-clerkship career. Furthermore, it’s the only way to hold the judge accountable and stop them from mistreating more clerks. It will help you heal to take action and stand up for yourself, rather than suffering in silence.
6. Tell your law school what happened. They should stop sending students to clerk for the judge who mistreated you.
7. Share your experience with LAP in our anonymous post-clerkship survey. Help us democratize information about clerkships, protect future clerks across many institutions against abusive judges, and ensure that other clerks don’t endure what you endured. Share the information you wish you’d known — or fully understood — about your clerkship before applying.

It weighs heavily on me that so many judges mistreat clerks, and most of them will never be held accountable. I’m surprised — and disheartened — at how infrequently clerks want to hold those in positions of power accountable for misconduct, despite increasingly sharing these experiences privately. Often, clerks who reach out are just looking for someone to confide in. They don’t consider their law schools, judiciary channels, or even mentors to be trusted confidantes. Most do not view a complaint as an accountability mechanism — disciplining judges or incentivizing them to change their behavior — as I do. I want to ensure that being a good judge also means being a good manager.

After I was mistreated, I knew immediately that I’d file a complaint, try to hold the judge accountable, and speak out. It’s empowering every time I share my experience. It’s a mode of accountability for me. Even though I did not receive justice through the formal judicial complaint process, I am glad I took those steps. I could never stay silent. Otherwise, the former judge would get away with his misconduct.

I’m heartened that so many clerks are empowered to reach out — to confide in me and discuss options. Clerks tell me that hearing about my experience gave them the courage to stand up for themselves and even leave a negative clerkship early. A year or two ago, they would have had no one to turn to and nowhere to go. I launched LAP to fill that void. I remember how isolated I felt as a law clerk, as well as a former clerk participating in the judicial complaint process.

While I recognize the headwinds against reporting, I encourage every mistreated clerk to report the misconduct to the judiciary and to their law school. Saying silent perpetuates cycles of mistreatment. Be part of the solution and help spark a #MeToo movement in the judiciary.

We are heading into another clerkship application cycle where far too many law students lack candid, transparent information about judges as managers, chambers culture, and clerkship experiences. Those who are mistreated will feel pressure to suffer in silence and then whitewash their experiences when prospective clerks reach out, rather than sharing candid information — perpetuating the clerkships whisper network. And mistreated clerks will bring this trauma into their next jobs: fearing they will be berated for perceived mistakes because that’s how the judge treated them, or cowering in the face of mistreatment by a powerful partner, U.S. Attorney, or federal defender because they were instructed to “keep their heads down and move on” when they experienced this treatment as clerks. And those in positions of power may feel emboldened to mistreat subordinates because they saw judges modeling this bad behavior when they were clerks themselves.

Law clerks: stand up for yourselves. If you stay silent, what happened to you will happen to more clerks. It’s on all of us to say “no” to judicial misconduct and to stop the cycle of mistreatment. That starts with using our voices and sharing our experiences. All you will have to hold onto after you are mistreated is your experience. Use your power for good.

Aliza Shatzman is the 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. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at Aliza.Shatzman@legalaccountabilityproject.org and follow her on Twitter @AlizaShatzman.