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Bradley v. State (1/12/01) ap-1712
Bradley v. State (1/12/01) ap-1712
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES A. BRADLEY, )
) Court of Appeals No. A-7501
Appellant, ) Trial Court No. 3AN-97-8340 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1712 January 12, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Maarten Vermaat, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
We are asked to decide whether an attorney who served as
a law clerk for this court last year, while this appeal was pending,
may now represent the State of Alaska in this appeal.
Alaska Appellate Rule 104 forbids appellate court law
clerks from practicing law while they serve as law clerks, and it
also restricts their ability to practice law after their clerkship
ends. The rule forbids former law clerks from "ever participat[ing],
by way of any form of professional consultation or assistance, in
any case which was pending in [their] court ... during the period
[of their employment]."
The attorney representing the State of Alaska in this
appeal, Maarten Vermaat, was employed as a law clerk to Chief Judge
Coats during the 1999-2000 clerkship year. This appeal was filed
on October 7, 1999, and thus it was pending during Mr. Vermaat's
clerkship. However, in accordance with Court of Appeals internal
operating procedures, the appeal was not assigned to a judge until
after the appellee's brief was filed in this case, late October
2000. By that time, Mr. Vermaat's clerkship had ended and he had
begun work for the State (in the Office of Special Prosecutions and
Appeals). Indeed, Mr. Vermaat is the author of the appellee's
brief.
The State asks us to accept its brief and let Mr. Vermaat
represent the State in this appeal notwithstanding his prior service
as a law clerk. Mr. Vermaat has filed an affidavit declaring that
he "had no contact with any of the pleadings" in this appeal and that
he "did not discuss any aspect of this case with any judge,
secretary, law clerk, or [other] court system employee". The Public
Defender Agency (representing the appellant, James Bradley) has
notified this court that it does not oppose the State's request.
Even though Mr. Vermaat had no connection to this case
during his clerkship year, and even though the opposing party has
no objection to Mr. Vermaat's participation, Appellate Rule 104
seemingly establishes an inflexible rule of disqualification under
these circumstances. Bradley's appeal was pending during Mr.
Vermaat's clerkship and thus, according to the rule, Mr. Vermaat is
barred from "ever participat[ing], by way of any form of professional
consultation or assistance, in [the] case".
The State argues that we should interpret the word
"pending" in the narrow sense of "ripe for decision", or at least
"ripe for judicial attention" (e.g., ready for preparation of a law
clerk's memo in anticipation of oral argument). In other words, the
State urges us to interpret Rule 104 so that it applies only to
appeals in which the briefing was completed during the law clerk's
tenure.
We reject this interpretation of the rule. As the State
acknowledges in its motion, the word "pending" normally refers to
all cases that are before the court and that remain undecided. An
appeal is "pending" even though no judge or law clerk is actively
working on it.
Moreover, from time to time, cases will require judicial
attention before the briefing is complete and the case is assigned
to a judge. The present appeal is a good example: this court must
decide a significant legal issue in order to determine whether to
accept the State's brief. It is certainly conceivable that, in such
situations, this court or one of its members might call upon a law
clerk to research or otherwise assist in the decision of the pre-
assignment legal issue. If we were to construe Rule 104 as applying
only to cases that are ripe for decision, the rule would not cover
this type of situation and thus, it would not fully achieve the
purpose of barring former law clerks from later working on any case
in which they personally participated during their clerkship.
But although Bradley's appeal was "pending" (for purposes
of Appellate Rule 104) during Mr. Vermaat's clerkship, we
nevertheless conclude that Mr. Vermaat is not disqualified from
representing the State in this appeal. We reach this conclusion
because we believe that Rule 104 no longer accurately embodies the
Alaska Supreme Court's policy on this issue.
The rule codified in Appellate Rule 104 has remained
essentially unchanged since statehood. This rule i.e., the ban
on law clerks' post-employment practice of law in cases that were
pending before the court during their clerkships was originally
enacted in 1959 as Appellate Rule 5. [Fn. 1] When the supreme court
re-codified the Appellate Rules in 1980, this ban was placed in
Appellate Rule 104 without substantive change. [Fn. 2] Since then,
Rule 104 has been amended only once in 1994, to make its wording
gender-neutral. [Fn. 3]
But though the rule codified in Appellate Rule 104 has
remained essentially unchanged for the past forty years, the Alaska
Supreme Court recently codified a much different approach to
disqualification arising from prior judicial service. In 1993, the
supreme court enacted the current version of Alaska's Rules of
Professional Conduct the ethical rules governing the practice of
law in this state. One of those rules, Rule 1.12, specifically
addresses the problem of a former law clerk's serving as a lawyer
in a matter that was pending before the court during the law clerk's
tenure. Professional Conduct Rule 1.12 differs from Appellate Rule
104 in two important ways.
First, unlike Appellate Rule 104, Professional Conduct
Rule 1.12 does not prohibit law clerks from later participating in
any case pending before their court during their clerkship.
Instead, Rule 1.12(a) codifies a narrower rule of disqualification:
[A] lawyer shall not represent anyone in
connection with a matter in which the lawyer
participated personally and substantially as a
judge or other adjudicative officer, ... or law
clerk to such person, unless all parties to the
proceeding consent after consultation.
Under Professional Conduct Rule 1.12, a law clerk is not
disqualified from later serving as a lawyer in a matter that was
pending before the court unless the law clerk "participated
personally and substantially" in that matter during their clerkship.
The Commentary to Rule 1.12 expressly states that the phrase
"personally and substantially" was meant to embody the concept that
a member of a multi-judge court would "not [be] prohibited from
[later] representing a client in a matter pending in [that] court
[if] the former judge did not participate."
Although this portion of the commentary speaks of a "former
judge" who did not personally participate in a case, Rule 1.12(a)
applies equally to judges and law clerks. Moreover, we can discern
no reason why the rule should impose a greater restriction on former
law clerks than it places on former judges.
Rule 1.12(a) differs from Appellate Rule 104 in a second
way. Under Rule 1.12(a), even when the former law clerk did
participate personally and substantially in the matter, the other
parties to the proceeding may waive the law clerk's
disqualification. In this respect, Professional Conduct Rule 1.12
is similar to Alaska Judicial Conduct Canons 3(E)(1)(b) and 3(F)(1)
canons which, read in conjunction, allow the parties to a lawsuit
to waive a judge's potential disqualification arising from the
judge's prior participation as a lawyer in the matter. We note that
AS 22.20.020(b) allows similar waivers of potential judicial
disqualification. [Fn. 4]
We do not say that Appellate Rule 104's rule of blanket
disqualification is unreasonable or unworkable. But that rule is
forty years old, and it is inconsistent with the supreme court's
later pronouncement on this same subject in 1993, embodied in
Professional Conduct Rule 1.12(a).
We also take judicial notice that, for the past twenty
years, this court has entertained and granted motions to relax
Appellate Rule 104 under the circumstances presented in this appeal.
That is, this court has allowed former law clerks and other full-
time officers of the court (e.g., a former Clerk of the Appellate
Courts) to appear as attorneys in appeals that were pending during
their employment if (1) they did no substantive work on the case and
(2) their opponent(s) did not object.
Previously, our rulings on these motions have been issued
in the form of cursory, unpublished orders, with little or no
explanation of the legal basis for those rulings. The problem with
our practice of issuing these rulings in a series of unpublished
orders is that it tends to create a form of "secret" law a rule
known only to those attorneys and agencies who have sought
relaxation of Appellate Rule 104, or who know someone who did.
Because Appellate Rule 104 is being applied as if it incorporated
the terms of Professional Conduct Rule 1.12, we have an obligation
to publicly say so.
For these reasons, we conclude that Mr. Vermaat's
participation in this litigation is governed by the rules set forth
in Professional Conduct Rule 1.12 rather than the blanket
prohibition contained in Appellate Rule 104. A former law clerk can
appear as an attorney in a case that was pending in this court
during their employment if either (1) the law clerk did not
"participate[] personally and substantially" in the case, or (2) "all
parties to the proceeding consent [to the law clerk's participation]
after consultation".
When a former law clerk desires to appear as an attorney
in a case that was pending in their court during their employment,
the law clerk must file a motion seeking permission to appear, and
the law clerk must support the motion with an affidavit that
discloses all pertinent facts, including the positions of the other
parties to the case, if known. This will ensure that there is a
reviewable record of the circumstances, and it will also allow this
court to oversee the process to make sure that Rule 1.12 is not
abused.
Mr. Vermaat has filed such a motion, supported by an
affidavit declaring that he had no contact with this appeal while
he was serving as a law clerk for this court. We are aware of no
facts to the contrary.
We acknowledge that Professional Conduct Rule 1.12(a)
presents certain procedural difficulties when it is applied to
multi-judge courts. For example, although a judge will know if he
or she assigned work to a law clerk in a particular case, the judge
may not know if one or more of their law clerks participated in the
decision-making process in some other, less formal manner for
example, by taking part in a discussion among law clerks concerning
a case assigned to another judge.
We presume that former law clerks will be candid when they
file motions to participate in cases that were pending during their
clerkships. Nevertheless, difficulties might arise if another party
to the case opposes the law clerk's motion either asserting that
the law clerk did participate in the case or, alternatively, citing
the obvious truth that the party has little or no way of verifying
or disputing the law clerk's denial of "personal and substantial
participation", since the court's internal decision-making process
is confidential.
Because of these potential difficulties, we do not decide
at this time how we would handle a former law clerk's motion to
participate if another party to the appeal opposes the motion. But
in this case, Bradley's attorney has declared that Bradley does not
oppose Mr. Vermaat's motion. We therefore conclude, pursuant to
Professional Conduct Rule 1.12(a), that Mr. Vermaat is not
disqualified from participating as the State's lawyer in this
appeal.
The State's motion to allow Mr. Vermaat to serve as its
lawyer in this appeal is granted, the State's brief is accepted for
filing, and this case shall proceed in a normal fashion.
FOOTNOTES
Footnote 1:
See Supreme Court Order No. 1. As originally enacted,
Appellate Rule 5 read:
No one serving as a law clerk or secretary to a
member of this court shall practice as an attorney or counsellor in
any court while continuing in that position; nor shall he after
separating from that position practice as an attorney or counsellor
in this court, or permit his name to appear on a brief filed in this
court, until one (1) year shall have elapsed after such separation.
He shall never participate, by way of any form of professional
consultation and assistance, in any case that was pending in this
court during the period that he held such position. (emphasis
added; two extraneous commas removed)
The rule was amended in 1970. See Supreme Court Order No. 112. The
court made one substantive change: deleting the one-year ban on
former law clerks' practicing law in front of the supreme court.
Aside from that, the pertinent changes to the rule were stylistic:
No one serving as a law clerk, secretary, or other
full-time officer or employee of this court or of a justice of this
court shall engage in the private practice of law while continuing
in that position; nor shall he ever participate, by way of any form
of professional consultation or assistance, in any case which was
pending in this court during the period that he held such position.
(emphasis added)
(In the 1970s, this rule was renumbered from Rule 5 to Rule 4.)
Footnote 2:
See Supreme Court Order No. 439. See also the commentary to
the Draft Revised Rules of Appellate Procedure (revision of August
28, 1980) prepared by former Clerk of the Appellate Courts Robert
D. Bacon. Mr. Bacon's comment to Appellate Rule 104 declares that
Rule 104 incorporates the former rule "without substantive change".
Footnote 3:
See Supreme Court Order No. 1153.
Footnote 4:
AS 22.20.020(b) allows the parties to waive the grounds of
disqualification listed in 020(a)(5)-(6) (the judge's prior
involvement as an attorney on behalf of, or against, a party) and
020(a)(8) (the prior involvement of the judge's former law firm in
the matter). Indeed, these grounds of disqualification are waived
if they are not affirmatively asserted.
