3 Questions For A Law Clerk Turned Advocate For Judicial Accountability (Part II)

// This week, I continue my written interview with former law clerk and current advocate Aliza Shatzman, founder of the Legal Accountability Project, an important nonprofit organization focused on improving the experiences of law clerks. Sharing with this readership the perspectives of those working to make the legal profession a more welcoming and sustainable career choice is always a pleasure. That is particularly true for younger lawyers, who may be more vulnerable due to their lack of experience and workplace power imbalances.

Now to the remainder of my interview with Aliza. As usual, I have added some brief commentary to Aliza’s answers below but have otherwise presented her answers to my questions as she provided them.

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Gaston Kroub: What should law firms that draw heavily from the clerkship ranks for their new talent be doing to help support LAP’s efforts?

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Aliza Shatzman: LAP views law firms as important partners in our efforts to increase diversity, transparency, and accountability not just in judicial clerkships but in all spaces legal leaders inhabit. By fostering beneficial clerkship experiences, LAP helps to shape the next generation of enthusiastic attorneys. Everyone who wants to clerk should feel empowered to pursue a judicial clerkship in a safe work environment. Applicants must be mindful about who they clerk for, in a way they currently cannot be. LAP is transforming the legal profession for the next generation of attorneys by raising awareness of issues that have historically remained shrouded in secrecy, while also offering concrete solutions.

LAP’s Centralized Clerkships Database, legal technology that democratizes information about judges and clerkships, is one of the best ways to diversify clerkships — and, by extension, law firm associates and partners, considering the premium that law firms place on hiring former clerks. Historically marginalized groups disproportionately lack the formal networks and information channels that help their peers obtain clerkships, yet they have unique considerations, including whether judges hire diverse clerks and are sensitive to diverse identities. LAP corrects informational asymmetries between law schools and among students at the same law school. Law clerks are overwhelmingly white and male, creating a pipeline issue and a persistent lack of diversity in the legal profession generally.

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The best way for law firms that hire clerks to convey their support publicly is by donating. This sends an important message to the legal community that LAP’s work is valued, since law students and law clerks look to law firms to set the standards for professionalism.

Additionally, law firms should circulate LAP’s post-clerkship survey — which is available at survey.legalaccountabilityproject.org — to their attorneys and encourage those who clerked to share their clerkship experience and help LAP democratize information about judges. Law firms can also host programming: I visited Jenner & Block’s D.C. office for a lunchtime talk in September and welcome the opportunity to present LAP’s work to more firms.

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Next year, LAP will create an employment attorney consortium to connect mistreated law clerks with attorneys who can help. Law clerks engaging in Employee Dispute Resolution (EDR), the federal judiciary’s internal dispute resolution process, often need to hire attorneys but struggle to do so, both because law firms are hesitant to represent law clerks in jurisdictions where they’ll go up against judges and because monetary remedies are unavailable for clerks engaging in EDR. I’m grateful for everything my attorneys did for me when I was a former clerk participating in the judicial complaint process: I encourage more attorneys to consider representing law clerks pro bono. This sends a message that the legal profession not only believes and affirms clerks, but we encourage them to stand up for themselves. Law clerks seeking judicial accountability deserve support from the legal profession, and right now, the lack of attorneys willing to assist creates an access to justice issue for clerks.

Additionally, law clerks rarely file complaints against judges — the only way to hold judges accountable for misconduct — because they fear reputational harm in the legal community and retaliation by judges. Law firms can lessen these fears and encourage reporting by no longer relying on a judge’s reference as the end all, be all for employment. If an applicant confides in the recruiting director that they were mistreated and that the judge’s reference will likely be misleading, or if the judge isn’t listed as a reference or the applicant asks that they not be contacted, don’t contact them. We have a real problem in the legal profession of deifying judges — and disbelieving law clerks. Everyone — including law firms — should be part of the solution.

GK: Law firms that are serious about hiring law clerks should be at the forefront in investing in the well-being of their future hires. Whether that investment takes the form of a donation to LAP, or distributing LAP’s post-clerkship survey, or having Aliza in for a discussion — or all of the above — is a decision that each firm will have to make on their own. Here’s hoping that as many firms as possible get behind LAP’s efforts, both for LAP’s contribution to the greater legal community, as well as for the benefit of current and future hires from the law clerk ranks.

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GK: How motivated is the judiciary to take a close look at workplace issues in light of the attention that LAP has generated in Congress and beyond?

AS: The federal judiciary has evidenced a troubling lack of motivation to make real changes over the past few years. They both discount the scope of problematic behaviors within the judiciary — bullying, discrimination, harassment, and retaliation — and disclaim responsibility for correcting them. One necessary change is passing the Judiciary Accountability Act (JAA) legislation to Title VII protections to judiciary employees, including law clerks and federal public defenders. Right now, judges are above the anti-discrimination laws they interpret. The Judicial Conference of the United States and the Administrative Office of the U.S. Courts (AO) continue, inexplicably, to oppose that common-sense legislation, which would align the judiciary with other legal workplaces and the other two branches of the federal government.

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Last year, the judiciary announced it would conduct a workplace assessment to survey workplace issues in the judiciary. Where are those results? They indicated they would not report the results publicly, an enormous red flag that they expected not to like what they uncovered.

This month, for the first time, the AO and Circuit Directors of Workplace Relations hosted some virtual information sessions for law clerks about their rights, protections, and resources. These could be short meetings, because it’s a short list. The federal judiciary continues to be tone-deaf to law clerks’ concerns, particularly the fear of retaliation by judges that precludes reporting and prevents attempts at actually resolving workplace issues between judges and clerks.

LAP continues to work productively with many individual federal judges, who support both LAP’s work and legislative changes to increase transparency and accountability in their workplaces.

Judiciary leadership doesn’t represent the views and interests of many rank-and-file judges, yet I worry that they retain a chokehold on messaging and policy-making that precludes progress. That’s where LAP comes in: in addition to some legislative advocacy, much of our work focuses on front-end solutions like our Clerkships Database, which increases transparency in clerkship hiring and helps more clerks avoid the workplace issues that judiciary leadership seems so unwilling to address.

GK: Demanding accountability is never easy, especially from institutions that have traditionally been immune from such scrutiny. Still, it is clear that LAP’s efforts have already begun to bear fruit, at least in terms of increased awareness of judicial misconduct and the need for substantial reform to protect law clerks and other vulnerable judicial employees. Here is hoping that LAP continues to drive for positive change for as long as it takes to eradicate the bad behavior that can be so detrimental to promising young legal careers.

My thanks to Aliza for the insights, and for sharing her passion for change. I wish her the best of luck with her efforts leading LAP, so that future law clerks can be spared the negative clerkship experience that she endured. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

Topics

Aliza Shatzman, Clerkships, Courts, Discrimination, Gaston Kroub, Judicial Accountability, Title VII