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[ 50 ] November 22, 2012 |

For anybody who is ever inclined to take David M. Nieporent’s opinions on any legal issue seriously, consider this comment, regarding whether it’s legal to hire judicial clerks for full-time jobs and pay them a salary of zero:

The whole “volunteer” thing is a red herring; this isn’t illegal because the minimurn wage does not apply to lawyers.

This is in response to a post which notes that “the general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).”

Learned Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
The advanced knowledge must be in a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

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Comments (50)

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  1. Warren Terra says:

    We shouldn’t take Nieporent’s assertions seriously, nor accord him credibility? Will wonders never cease!

  2. Joey Maloney says:

    If you’re going to be punching down so egregiously, at least spell the poor sap’s name correctly.

  3. Johnny Sack says:

    Added to my list of people who need to take a long walk off a short cliff. That is such a bad faith argument it makes me sick.

  4. DrDick says:

    I have never once taken Nieporent seriously on any issue, as he has routinely displayed the intellectual capacity of gravel. I have, in fact, several times mentioned that I pitied anyone foolish enough to engage him in a professional capacity and asked whether his law degree was from Regents/Liberty or perhaps the back of a matchbook.

  5. Malaclypse says:

    Fucking hell, I can’t believe I’m gonna defend Davey, but you did not quote, from the same link:

    Practice of Law or Medicine

    An employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine.

    • Richard says:

      I think that’s right. There is a Lesrned Professional exemption AND a docker/lawyer exception . So it would appear that lawyers as unpaid volunteers is legal

    • Paul Campos says:

      A judicial clerk isn’t engaged in the practice of law. It’s routine for judicial clerks not to have their law licenses before they start their clerkships, and in any case judicial clerks don’t do anything that requires a law license. So the exemption for lawyers doesn’t apply to them.

      • Malaclypse says:

        Wait, so Davey was accurate that the minimum wage does not apply to lawyers, but he was himself employing a red herring when he said that you were using a red herring?

        Did I drink too much last night, or did the worm swallow it’s tail on this?

      • Richard says:

        Do you have case law or a state bar opinion for that? I would think that a clerk who has a law license, as many do, who prepares a draft opinion for a judge is practicing law. You saying one thing while Nieporent says another hardly resolves the issue

        • Paul Campos says:

          What constitutes the practice of law can be a tricky question, but drafting judicial opinions doesn’t count, nor does anything else that judicial clerks do. Clerks don’t represent clients, they don’t enter appearances in court, and they don’t sign legal documents as attorneys of record. In addition many judges don’t require their clerks to take the bar exam prior to their clerkships, which means those clerks won’t become licensed until after their clerkships. Indeed the very definition of a law clerk, as opposed to a lawyer, is somebody who works in a law office without necessarily being licensed to practice law (Until recently most “law clerks” were law students).

          • Richard says:

            Any citation for the proposition that drafting judicial opinions with a recommendation doesn’t count? The definitions I just looked at for practice of law don’t, for the most part require representing a client, appearing in court or signing documents. I think it is a close question in many states whether a full time clerk is engaged in the practice of law Nieporents categoriic statement that law clerks are exempt is wrong but your categoric statement that they are not exempt seems wrong as well. But I’m through with this subject on this Thanksgiving morning. Best wishes to you and yours, the readers of this blog and to Nieporent

            • Paul Campos says:

              It’s not a close question. Nobody who knows anything about this — not even Nieporent — would argue that being a judicial clerk constitutes the practice of law. It’s routine for judicial clerks not to be licensed. The idea that a judicial clerk is giving “legal advice” to a judge in the unauthorized practice of law sense of what it means to give legal advice is absurd.

            • Timb says:

              Who needs a cite? Law clerks in all levels of law do research, write, and even advise attorneys, if that means they’re practicing law, then my employers owe quite a bit of cash from the clerkship I did prior to getting my license

          • Anderson says:

            Paul is right. I’ve been a judicial law clerk before having my license, which I couldn’t have done were it the practice of law.

            The sine qua non of legal practice is representing another person’s interests. Even a judge isn’t practicing law.

            • Richard says:

              Thats not how “practice of law” is defined in many states. Some states require representation of another person’s interest; many dont. Look at the ABA summary of state definitions of practice of law. Also it appears that some states explicitly allow someone without a license to perform tasks such as legal research if done under the supervision of an attorney even, therefore implicitly assuming that such work constitutes the practice of law.

              I know that many judicial clerks start work before having a license (and that law clerks work at firms without a license) but that doesn’t mean that the lawyer exception doesn’t apply for purposes of the minimum wage law at least in some states.

              But as I said above, I’m through arguing this

        • Richard says:

          I quickly looked at a summary the ABA has of how practice of law is defined in the fifty states. Some are broad, some are narrow and several states hold that it is impossible to define practice of law. The broad definitions include “giving legal advise” so I think being a law clerk is being engaged in the practice of law in many states (assuming the judge, as many do, have their clears give a recommendation in their research memo.

          • Anderson says:

            The definitions are drafted to give paralegals a hard time.

            If you don’t realize that “can do it without a law license” is dispositive, then this may not be an issue you are prepared to argue.

    • L2P says:

      Just some practical stuff.

      Most courts have law clerks (that are supposed to help judges draft opinions and stuff), and a separate staff of lawyers that provide legal advice. And ALSO help judges draft opinions and stuff. This line is less clear at the lower court level, but the appellate courts are pretty clear about who the staff attorneys are.

      However, IMO whether law clerks are practicing law isn’t so much “well settled” as “not an issue” because the people who would decide this issue (the judges) don’t think that law clerks are practicing law. But from my perspectice, it’s really hard to look at a law clerk drafting a research memo or even an opinion on something, as being fundamentally different from a junior associate drafting a research memo or an opinion on something. Why one person would be “practicing law” while the other is, I don’t know, just “assisting” in the practice of law is a mystery to me.

  6. Julian says:

    I asked in the other thread, but that discussion seems to have moved here:

    What is the better alternative to the judge taking on an unpaid clerk? Federal judges tend to have more work than their two clerks than handle. I don’t think this is a case of a greedy employer refusing to shell out – I’m confident every federal judge would hire a third clerk if s/he could, it’s not their money, after all.

    Anyone who takes that unpaid clerk job has decided that it is better than all of their alternatives. If the Colorado judge didn’t recruit for an unpaid third position, it’s not as though the big federal antilabor conspiracy would crack and hire a paid third clerk. This context just seems very different from the normal labor market – I don’t think this is coercive in the same way it would be in the private labor market.

    • dl says:

      ^ Won’t kill the judge to work a little harder, or, alternatively, spring for a clerk out of his own pocket.

    • somethingblue says:

      Anyone who takes that unpaid clerk job has decided that it is better than all of their alternatives.

      Yes, that’s what I tell the eight-year-old who cleans my chimney.

      • John Protevi says:

        You are to be applauded for providing the little imps with valuable work experience. It’s an investment in their future; the ROI comes when other employers see that line on their résumés. In fact, I think you should charge them, not pay them.

      • Pseudonym says:

        For a moment I imagined that your response might serve as an all-purpose argumentum ad absurdum reply to any libertarian proposition, then I realized that this was a centerpiece of Newt Gingrich’s primary campaign.

    • Scott Lemieux says:

      Um, maybe the well compensated judge could just do some of the writing and research himself, rather than not merely exploiting desperate unpaid labor but requiring a “moral commitment” not to seek paid employment?

      • Anderson says:

        Yah, and if he’s already doing that, then he just needs to wake up to, this is the max work the taxpayers think you should be doing. He’s funded for two clerks because as a matter of policy that’s how many he is supposed to have.

      • cpinva says:

        personally, i’d submit that “moral commitment” is worth less than the paper it’s not printed on.

        rather than not merely exploiting desperate unpaid labor but requiring a “moral commitment” not to seek paid employment?

        i would also submit, if said judge made any attempt at retribution, should said unpaid clerk decide to tell him, and his “moral commitment” to take a flying leap, should an offer of paid employment come along, during the year in question, said judge would find himself with a nice, hefty, uncovered by the government, lawsuit on his hands. lawyers haven’t nearly the same hesitation in suing/testifying against each other as dr’s do.

        not to mention (but i shall anyway), the PR wouldn’t look too good.

  7. Johnny Sack says:

    I can’t respond to a thread on my phone apparently-but one of the big issues with the Denver judge was the start/end schedule out of sync with firm hiring, the demand for a 2 year commitment (perfectly reasonable for *paid* clerks. If after that the judge doesn’t let the clerk put “Clerk” on their résumé instead of “Volunteer Clerk,” he’s a bona fide dick.

    • David Nieporent says:

      1) It was a one-year position, not a 2 year commitment.
      2) The position is advertised as a clerk’s position, just like the paid clerks. Indeed, advertised through the same online clerk’s hiring system. I don’t think there’s any basis for claiming he’s not going to let them call themselves clerks.
      3) Presumably the fact that it’s “out of sync with firm hiring” is part of the point: it’s targeted for people who already went through the hiring process and couldn’t get paid positions.

  8. arguingwithsignposts says:

    Here’s a thought. Just pay the goddamned staff!

    • los gringos son locos says:

      I wonder if white lawyers take unpaid positions more often than lawyers of color. I’m not a lawyer, but my father didn’t cross the border and put up with a ton of BS so that I could be exploited for free, and I’m sure others feel the same way.

      • Warren Terra says:

        Leaving aside people’s feelings on the emotional significance of pay, and leaving aside race as such, the simple ability to work for a year or two for no pay after paying your way through college and law school is very much a class thing (which will often coincide with race, of course).

  9. Johnny Sack says:

    Judicial clerkship is not practicing law. This is not a disputed fact.

  10. Sir Charles says:

    Being a law clerk or judicial clerk is not the practice of law. An unlicensed person giving “legal advice” would be engaging in the unauthorized practice of law. Clerks can do research and writing under the supervision of a licensed attorney. But they are not lawyers and cannot engage in the practice of law.

    This is not a close question.

  11. Just Dropping By says:

    Interestingly, a number of jurisdictions have statutes or rules prohibiting judicial clerks from practicing law while serving in that position. See, e.g., 28 U.S.C. § 955 (“The clerk of each court and his deputies and assistants shall not practice law in any court of the United States.”). That would seem to be a pretty strong basis for saying that clerks are not “practicing law” in those jurisdictions.

    At the same time, however, I very strongly suspect that if this issue ever somehow got before the DoL or a federal court, the result would be a determination that judicial clerks are engaged in the “practice of law” for purposes of exempting them from the FLSA.

  12. David Nieporent says:

    One does not have to give legal advice directly to a client or appear in court to be practicing law. Every so often, an enterprising plaintiff’s employment lawyer tries a similar argument to the one that Campos is making, but with contract document review attorneys: they should be paid overtime because document review isn’t really “practicing law.” After all, firms sometimes stick new hires into document review, before they even pass the bar — and some firms hire non-lawyers to do it. I have not seen one such argument be successful. Good luck convincing a federal judge that his clerks, hired from the elite law school grads to help him research and draft opinions, are just glorified paralegals.

    That doesn’t even get into the silliness of claiming it’s “exploitive” to give an otherwise-unemployed law graduate a great resume line item. You lefties are so wrapped up in your evil-capitalist mindset that you employ the lingo even when it doesn’t make conceptual sense. Martinez isn’t doing this to save money or make a bigger profit. Nor is he replacing paid labor with unpaid labor, as some companies do with unpaid interns. He’s creating an extra position, saying, “Look, I can’t pay for this, but here it is if you want it.”

    • David Nieporent says:

      I would further note, on the “exploitation” front, that he’s not (as some companies do) trying to lure applicants with the false hope that their unpaid internship will turn into a real job; he’s up front about it: “There is no possibility for the position to turn into a paid position with Judge Martinez.”

    • Malaclypse says:

      He’s creating an extra position

      It was not hard to find the redefined term here.

      • Julian says:

        Just wanted to note that nobody responded to my original comment with anything but snark.

        What should the judge do instead, and why should he do that?

        To the people who think the judge should just do all the extra work, why is that a better alternative?

        • Malaclypse says:

          For exactly the same reason we don’t make it legal for people to sell kidneys.

          And that is not snark; that is the reason.

          • Julian says:

            let me try to piece this together – a kidney market would be prone to exploitation of the poor, therefore a volunteer clerk to a federal judge is a bad idea?

            Because of exploitation? What about the reasons, cited in my comment, to think that there would not be exploitation? Namely, the fact that a paid alternative does not exist, and will not be made to exist by our resistance to unpaid positions.

            • Hogan says:

              a paid alternative does not exist

              But it does: the judge. You don’t like that alternative, but that doesn’t make it vanish into thin air.

              • Julian says:

                What is this I don’t even

                The judge can do it? What are you talking about?

                I get the sense that you think the judge is a lazy bum. How do you know that? I’m sure the judge is more than able to do his third clerk’s job – that doesn’t mean he can do so costlessly. That might mean that it detracts from his ability to quickly or effectively do other work that he is paid to do.

                I have no idea why you think the judge doing that work is a better alternative than having an unpaid clerk do it. The judge has a lot of work to do. I am sure some federal judges with no work to do may be out there – but why are we assuming that this is one of them? The federal docket is incredibly overcrowded, and Obama has been unusually slow to appoint federal judges, probably because of Republican resistance.

                Someone please tell me why the state of the world with no third clerk who is unpaid is better than the state of the world with a third unpaid clerk.

          • David Nieporent says:

            For exactly the same reason we don’t make it legal for people to sell kidneys.

            Because “It’s unacceptably paternalist for the government to tell people what they can do with their own bodies” only applies to abortion, obviously.

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