Law clerk
A law clerk, judicial clerk, or judicial assistant is a person, often a lawyer, who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant roles in the formation of case law through their influence upon judges' decisions.[1][2] Judicial clerks should not be confused with legal clerks (also called "law clerks" in Canada), court clerks, or courtroom deputies who only provide secretarial and administrative support to attorneys and/or judges.
Not to be confused with Legal clerk or Court clerk.
Judicial law clerks are usually recent law school graduates who perform at or near the top of their class and/or attended highly ranked law schools. Serving as a law clerk is considered to be one of the most prestigious positions in legal circles, and tends to open up wide-ranging opportunities in academia, law firm practice, and influential government work.[3]
In some countries, judicial clerks are known as judicial associates or judicial assistants. In many nations, clerk duties are performed by permanent staff attorneys or junior apprentice-like judges, such as those that sit on France's Conseil d'État. In English and Hong Kong courts, they are known as judicial assistants. The European Court of Justice uses permanent staff attorneys (référendaires) and stagiaires (young law graduates). Australia, Canada, Sweden, and Brazil have notable clerk systems.
Canada[edit]
Most Canadian courts accept applications for judicial clerkships from graduating law students or experienced lawyers who have already been called to the Bar in Canada or abroad (typically in the United States or the United Kingdom). Most provincial superior and appellate courts hire at least one clerk for each judge. Typically students in their last two years of law school are eligible to apply for these positions, but increasingly, experienced practicing lawyers are also considered for these positions. The term typically lasts a year and generally fulfills the articling requirement for provincial law societies, which qualifies a person to become a practicing lawyer in a Canadian jurisdiction.
The most prestigious clerkship available is with the country's highest court, the Supreme Court of Canada, followed by the Federal and provincial Courts of Appeal. Each Justice of the Supreme Court hires four clerks for a one-year period.[4] The Federal Court of Appeal, which is based in Ottawa but hears cases across the country, selects 15 law clerks each year, or one per judge. The Federal Court also hires only one clerk per judge, or about 30 per year in total.[5] The Court of Appeal for Ontario selects 17 law clerks, who serve either one or two of the 24 Justices.[6] The Quebec Court of Appeal usually hires a similar number of law clerks for both Montreal and Quebec City, but is unusual among Canadian courts in having a formal clerkship program for law students in addition to law graduates. The Court of Appeal for Saskatchewan hires 3 clerks, each of whom are assigned to 2 to 3 judges.[7] The New Brunswick Court of Appeal hires two law graduates, who serve as law clerks working under the direct supervision of the Chief Justice of New Brunswick.[8] Successful candidates for all clerkships are usually selected based on a distinguished academic record, academic recommendations, strong research and writing skills and interviews with judges. For both the Supreme Court of Canada and the Quebec Court of Appeal, being able to work in both English and French is strongly preferred.[9]
The Tax Court of Canada hires 12 clerks annually.[10]
Many law clerks have gone on to become leaders of the profession. For example, the Hon. Mr. Justice Jean Cote of the Alberta Court of Appeal was one of the first Supreme Court law clerks, serving as a clerk in the program's inaugural year (1967). Similarly, the Hon. Madam Justice Louise Arbour, formerly of the Supreme Court of Canada, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia and former UN High Commissioner for Human Rights, also served as a law clerk in the early years of the program. Meanwhile, the Hon. Madam Justice Andromache Karakatsanis of the Supreme Court of Canada and the Hon. Madam Justice Kathryn N. Feldman of the Ontario Court of Appeal were formerly law clerks at the Ontario Court of Appeal.
England and Wales[edit]
In England and Wales, law clerks are called judicial assistants.[11] It is possible to be a judicial assistant at the Court of Appeal and at the UK Supreme Court (formerly the Appellate Committee of the House of Lords).[12] Only Supreme Court judicial assistants are appointed for a full-time, one year fixed-term appointment.[13] Since 2006 they have taken part in a week long exchange in Washington DC at the U.S. Supreme Court established by the late Justice Antonin Scalia and Lord Rodger of Earlsferry.[14]
European Court of Justice[edit]
Sally Kenney's article on clerks, or référendaires, on the European Court of Justice (ECJ) provides one detailed point of comparison (2000). There are some major differences between ECJ clerks and their American counterparts, largely because of the way the ECJ is structured.[15] One key difference is that ECJ clerks, while hired by individual judges, serve long tenures as opposed to the one-year-clerkship norm at the U.S. Supreme Court. This gives ECJ clerks considerable expertise and power. Because ECJ judges serve six-year renewable terms and do not issue individual opinions, the most important role of ECJ clerks is to facilitate uniformity and continuity across chambers, member-states, and over time.
Furthermore, this role is heightened because the European Union is composed of nations with disparate legal systems. Kenney found that ECJ clerks provide legal and linguistic expertise (all opinions are issued in French), ease the workload of their members, participate in oral and written interactions between chambers, and provide continuity as members rapidly change. While Kenney concludes that they have more power than their counterparts on the U.S. Supreme Court, ECJ clerks act as agents for their principals—judges—and are not the puppeteers that critics claim.
The ECJ also admits a limited number of selected law graduates as Stagiaires. Their duties are more similar to those of the law clerks of the U.S. Supreme Court.
Hong Kong[edit]
In Hong Kong, law clerks are known as judicial assistants. Since 2009, the Court of Final Appeal has been offering full-time, one-year fixed-term appointments to junior lawyers who graduated from highly ranked law schools. This program was initiated under the auspices of former Chief Justice Geoffrey Ma.[19]
The selection process for the position of judicial assistant is highly competitive. Applicants are typically required to have strong academic backgrounds, possessing first-class LLB or LLM degrees from reputable universities, as well as prior experience in international law firms or reputable chambers. They are expected to be in the top 5% of their graduating class or hold degrees from Oxbridge. Hundreds of applicants vie for just six or fewer open positions, making it a highly sought-after opportunity.[20]
Working as a judicial assistant is considered to be a unique and prestigious opportunity for junior solicitors or barristers, and is viewed as a stepping stone to a successful career in law. Upon completing the position, judicial assistants typically return to private practice, working as solicitors in Magic Circle firms or barristers in top chambers.[21] While traditionally the position of judicial assistant in Hong Kong was regarded solely as a gateway to a career at the bar, recently there has been a growing trend of law firms hiring individuals who have completed their tenure as judicial assistants, due to their high calibre and valuable experiences in court proceedings.
The primary responsibilities of judicial assistants are to provide support and assistance to judges in the Court of Final Appeal. Their main role is to help judges research points of law, analyze appeals and leave applications, and draft memoranda on legal points. They also undertake a range of other tasks, such as preparing press summaries and fact summaries of appeals, as well as notes for judges’ external speaking engagements and participation in legal conferences. Additionally, judicial assistants assist in the preparation of specimen directions, case bulletins, and publications related to judicial education.[19]
India[edit]
In India law graduates go through a competitive nomination and interview process to get accepted as law clerks. The Supreme Court of India and several High Courts of India offer paid law clerkships that are considered very prestigious. These clerkships usually last for one year (session commencing from July to Mid of May) and may be extended at the discretion of individual judges.
The Registry of the Supreme Court of India invites applications in January each year for 'law clerk-cum research assistant' positions from the Colleges and Universities empanelled with the Registry. The Universities nominate/recommend their students to the Registry which screens the applications and shortlists candidates. The shortlisted candidates are interviewed by an esteemed panel of sitting Supreme Court Justices in the first week of June. The final merit list is prepared and the selected candidates are offered positions to work under the sitting judges of the Supreme Court starting from the month of July. The eligible candidates receive offers throughout the year as and when the vacancies are created in the Chambers of Justices. Usually, two law clerks are assigned to each judge for one year, though some justices are known to sometimes engage either one or more than two law clerks at a time. Though most of the law clerks usually begin their one-year service period in July each year, soon after the completion of the LL.B. degree, though there have been instances of law clerks serving after having accumulated some work experience.
The work profile of the law clerks vary as per the judges who they work under. Generally it involves preparing summary opinions and briefs for the Special Leave Petitions listed for the Miscellaneous Days (i.e., Monday and Friday). On the Non-Miscellaneous Days it involves attending Court proceedings and preparing notes for the arguments advanced by the counsels on matters listed. They also assist the judges in drafting of the judgments and orders by supplementing it with research and case analysis.
In 2014, the Supreme Court increased the monthly stipend of law clerks / research assistants from Rs 25,000 to Rs 30,000, with a hike to Rs 32,000 for clerks who stay for longer than a year.[22] For the 2012-13 session each law clerk at the Supreme Court was paid a stipend of Rs 25,000 per month, which may be increased further in the next year. Till 2009–2010 each law clerk at the Supreme Court of India was being paid Rs. 20,000 per month.[23]
In addition to this, students from law colleges all over the country are given the opportunity to act as 'legal trainees' under Supreme Court judges during their vacation periods. The institution of law clerks is still a recent development in the context of the Indian judiciary. Anecdotal references indicate that some justices are hesitant to rely on 'law clerks' on account of concerns with confidentiality, especially in politically sensitive disputes. However, their services are heavily relied on to go through the written submissions in order to prepare for the preliminary hearings that are held to decide whether a case should be admitted for a regular hearing on merits. In recent years, the contributions of law clerks to research for judicial opinions have become increasingly evident on account of increasing references to foreign precedents and academic writings.
Ireland[edit]
In Ireland Judicial Assistants provide support to the judiciary comparable to that provided to judges of the Federal Courts of the United States, the Courts of Australia, the European Courts in Luxembourg and Strasbourg and the Supreme Court of the United Kingdom. They are typically recent law graduates, and were introduced on a gradual basis to phase out the traditional Usher/Crier or "tipstaff" position (a process that is almost complete), while simultaneously providing research assistance to the judge to whom they are assigned. Judges of all jurisdictions have Judicial Assistants, with the exception of ordinary judges of the District Court. Judicial Assistants are typically recruited on a three-year contract and take up the role for this or a shorter period of time, generally before entering/returning to practice or academia.
Pakistan[edit]
The Supreme Court of Pakistan has an extensive and competitive program for the appointment of the Law Clerks/Research Associates. Applications are invited from all over Pakistan calling on fresh law graduates, Advocates and Barristers to submit their CVs, transcripts/degrees, three letters of recommendation and a legal writing sample. Applicants thereafter are shortlisted purely on merit and interviewed eventually by the scrutiny committee, consisting of senior judges and law clerks of the Court, before final appointment. In recent years, all law clerks appointed have been licensed advocates placed at the top of their class with excellent research credentials. Law clerks sit in court during hearings. In chambers, law clerks assist the judge in making determinations of law, conducting research, critically proof-reading the court orders and preparing briefs etc. Law clerks serve as paid staff of the court for an extendable one-year term. The Supreme Court has 17 law clerks for the year 2017-2018.
In the Lahore High Court, many civil judges with master's degrees (mostly LLM) and post-graduate research experience are appointed as research associates equivalent to law clerks to the judges of the court. They function through the Research Centre of the Lahore High Court and assist all the judges in the various registry benches of the Lahore High Court.[28]