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Advisory Opinion 38

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State Disciplinary Board
Advisory Opinion No. 38
July 20, 1984

Law Clerks Preparing Appellate Briefs

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented: May a Law Clerk for a Superior Court Judge prepare appellate briefs on behalf of defendants in criminal cases where the death penalty has been imposed under the following circumstances?

1) The cases would be from other judicial circuits;
3) The work would be performed in the Law Clerk's spare time and he would receive no compensation;
2) Both the prisoner and judge consent to the Law Clerk's representation after full disclosure;
4) No county or state materials would be used;
5) The Law Clerk is paid by the county and serves at the judge's pleasure.

Opinion: The applicable ethical rules are Canons 5 and 9; ECs 5-14, 5-15, 9-1 and 9-2; DR 5-105; and Standards 35 and 37.

The Law Clerk for a Superior Court Judge occupies a unique position. The "client" of the Law Clerk is the State of Georgia through the Judge who supervises the Clerk's activities. While a Law Clerk is not specifically subject to the Code of Judicial Conduct, the Clerk is in a close relationship with the Judge who is subject to that code. Lawyers and members of the public view a Law Clerk as an extension of the Judge for whom the Clerk works.

For a Law Clerk to take a position against the State representing a prisoner who has been convicted in the State of Georgia, the Clerk will be in a conflict of interest situation. On one hand, the Clerk is representing the person against the State while on the other hand, the Clerk represents the State in the administration of justice through the Superior Court Judge.

Canon 9 states that:

"A Lawyer Should Avoid Even the Appearance of a Professional Impropriety."

It is the opinion of this Board that a Law Clerk representing criminal defendants would give rise to the appearance of professional impropriety under Canon 9 and ECs 9-1 and 9-2. Additionally, Standard 37 (and DR 5-105) allows a lawyer to represent multiple clients in a conflict of interest situation only if "it is obvious that he can adequately represent the interest of each". It is the opinion this Board that a Law Clerk cannot adequately represent the interest of the State of Georgia in death penalty cases and the interest of other prisoners in other death penalty cases.

The State Disciplinary Board does not reach the question of whether or not the Law Clerk is subject to the Code of Judicial Conduct as that is a proper question for the Judicial Qualifications Commission.

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