On August 10. 2023, Aliza Shatzman, 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, wrote an article published in Bloomberg Law about the persistent issue of workplace mistreatment by judges.

According to an internal 2021 D.C. Circuit survey, 57 judiciary employees reported experiencing harassment or retaliation, with an additional 134 employees witnessing or hearing about problematic behaviors. This suggests judicial misconduct is a significant problem. However, some in judiciary leadership posit the problem is “solved” due to a lack of recent public incidents similar to former judge Kozinski.

Shatzman wrote that judicial misconduct has been difficult to prevent or discipline due to fears of retaliation and reputational harm that preclude law clerks from filing formal complaints. This enables the judiciary to discount the scope of mistreatment and disclaim responsibility for correcting it. Judges also have the power to derail former clerks’ careers if they speak out, compounding fears of retaliation that silence clerks.

A negative reference from a judge can destroy a law clerk’s career. As long as a judge’s word is valued above all else, clerks will not feel empowered to seek accountability. The legal community is taught to value self-preservation, and a judge’s reference carries enormous weight. This is true whether the clerk lists the judge as a reference or not.

Shatzman shared that following her own negative clerkship experience, she had a job offer from her dream employer revoked due to an unfair negative reference. Legal employers must empower attorneys to seek accountability by not accepting a judge’s reference unquestioningly and allowing applicants to address concerning references.

Some firms agree not to contact judges when applicants share experiences of mistreatment that may prompt retaliation through negative references. According to Shatzman, this practice should be a model, as empowering attorneys to speak out can change judiciary behavior, ensure judges are good managers, and send a message that misconduct will no longer be tolerated, adding that the system will not change unless attorneys stand up for themselves and employers enable them to do so.

“Every legal employer should be part of the solution to empower the next generation of attorneys to advocate for change,” Shatzman said.

 

Source: Bloomberg Law