How a Law Becomes a Bill
The agitator in question is Cristen Feldman, a staff attorney of the judicial reform group Texans for Public Justice, who has indeed been telling anyone who will listen that current Supreme Court practice is unethical and possibly criminal. Last September, Texas Lawyer reported that longstanding recruitment practices of big law firms -- paying or promising hiring bonuses and other benefits totaling as much as $47,000 or more to Supreme Court clerks who agree to join the firms after their clerkships -- appear to violate the state penal code. Specifically, the "Bribery and Corrupt Influence" chapter of the code says anyone (e.g., a clerk) who "solicits, accepts or agrees to accept any benefit" from anyone with an interest before the court commits a Class A misdemeanor (with a maximum punishment of $4,000 and a year in prison). In turn, anyone (e.g., a law firm) who "offers, confers or agrees to confer any [prohibited] benefit on a public servant" also commits a crime. In Feldman's judgment, "The practice of private firms subsidizing court clerks raises serious ethical and legal issues. If the Texas Supreme Court does not follow the law, no one will."
The Supreme Court, in the person of Chief Justice Tom Phillips, has responded that the bribery statute was never intended to address this traditional method of rewarding clerks for their public service, and that the court's internal ethical practices sufficiently prevent any conflicts of interest. Clerks are required to report to the court any employment agreements they have made, Phillips says, and are recused from any cases involving their future employers (although no record is kept of such recusals). "We're not convinced there's a problem," Phillips told the National Law Journal. Travis County District Attorney Ken Oden, who has prosecutorial jurisdiction in the matter, has described the controversy as an "honest confusion" about the law and said he has no plans to prosecute. Instead, he said he would meet with court representatives to see if they could work with the Legislature to change the law.
Feldman and TPJ issued a report last month ("Texas Supreme Court Clerk Perks: Big Bucks Batter an Ethical Wall," www.tpj.org) listing a dozen major Texas law firms who have recruited 76 clerks from 1992 to 2000, and charged that cases before the court involving those firms during that period created at least 402 potential conflicts of interest for the clerks. The report says that just four law firms (Baker Botts, Vinson & Elkins, Fulbright & Jaworski, and Bracewell & Patterson) hired 33 of the 76 clerks and accounted for 70% of the potential conflicts. (Pending resolution of the matter, Vinson & Elkins has suspended its bonus payments, but so far the other firms have taken no action.) Justice Phillips dismissed TPJ's claims. "I think they're 402 off," Phillips told Texas Lawyer. Willis says TPJ's charges are "bullshit, utter bullshit. When a case is being worked on down the hall, in another judge's chambers, other clerks [who've been recused] don't work on it, don't research it, and have absolutely no influence on it," Willis said. "How is that a conflict?"
TPJ insists that the court's rules of ethics are insufficient protection against potential conflicts and called for the court to prohibit the current law firm bonus practices and to publicly recuse all court clerks from any matter involving their future employers. As for the court's complaint that it can't recruit the best students at current salary levels, Feldman was unsympathetic. "Certainly the salaries could be raised," Feldman said, "but they also seem to be looking for the wrong kind of student. Since when is making a lot of money the primary motive for public service?" Noting that the decline in applications predates the current controversy, Feldman added, "This court has an image problem, and its reputation has been tarnished -- students perceive that it's a conflict-ridden court."
Willis countered that the nominally nonpartisan TPJ is in fact a tool of Democratic trial lawyers. "Just ask them who provides their funding," said Willis. "That guy [Feldman] is paid 100% of his time to throw mud at this court. They say they're nonpartisan, but you never see them attacking a Democratic judge." (Willis grudgingly acknowledged that Democratic judges are increasingly scarce in Texas; there are currently none on the Supreme Court.)
"Every time we criticize a Republican justice," responded TPJ director Craig McDonald, "they point the finger and say, 'Trial lawyer.' I haven't even talked to a trial lawyer in a long time. We do get some contributions from individuals, but more than 85% of our funding comes from foundations interested in judicial reform."
Despite Willis's suspicions, the list of TPJ's major funders (available on its Web site) is not exactly knee-deep in yellow-dog-Dem litigators: the Alliance for Better Campaigns (Pew Charitable Trusts), the Arca Foundation, the Magnolia Charitable Trust, the National Association for Public Interest Law, the Public Interest Research Group Education Fund, and so on. "There is a growing movement in this country for judicial reform," said McDonald. "That movement is challenging the corporate takeover of the judicial system, and there are a number of foundations which support our work."
It may be a while before the reform movement reaches the Supreme Court. Last week, in a moment briefly illuminating the old-boy network of Texas politics, Justice Phillips (a former Supreme Court briefing clerk) complained to the Senate Finance Committee that TPJ was criticizing the court, and -- literally before the words had escaped Phillips' mouth -- committee chair Rodney Ellis, D-Houston (a corporate attorney and former briefing clerk for the Third Court of Appeals), asked how Phillips wanted the problem fixed: "Do you want money put in the budget [for higher clerk salaries], or would you rather we amend the law [to eliminate the conflict]?" Phillips said either was fine with him, and Ellis said he'd ask his vice-chair (Chris Harris, R-Arlington), to carry the amendment. (A spokesman for Harris said he knows of no legislation in progress.) Said TPJ's Feldman, "It's hilarious that this court of 'strict constructionists' seeks to change the law in order to escape liability for breaking it. Since when does legalizing a conflict make it go away?"
Asked that question, County Attorney Oden said that while we should protect the public policy interest reflected in the statute, "I am of the opinion that we can find the way to do that without prosecuting Supreme Court clerks.
"I don't think this is the type of behavior that's contemplated in the statute," Oden said, "and it's not just confined to the Supreme Court. It could potentially affect any private remuneration of any public employee, not just briefing clerks or lawyers -- and it's coming up generically across the country because of dramatic changes in the economy." He said lawyers, prosecutors, and legislators are looking at the law, and he expects some legislative change might be necessary.
"The session to discuss what form that might take," Oden concluded, "will certainly be lively."