Staff and Clerks

Staff and Clerks

Rule 2.9(C) is written about the judge: a judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.¹ Much of a court's work, though, is done by other people. Law clerks and staff attorneys read the record, research the law, and draft; other judges sit down the hall. The text therefore leaves a question open. If someone working for the judge goes looking for a fact, has the judge investigated independently?

The answer comes from the reason for the rule. A fact reaches the decision untested when the parties never saw it, could not object to its source, and had no chance to answer it. A fact that a clerk finds and reports is untested in exactly the same way as one the judge found personally. If the prohibition bound only the judge's own hands, any judge could comply on paper while still receiving the outside information the rule exists to exclude. The prohibition must therefore reach staff who act as the judge's investigators.

It cannot reach further, because a judge who could consult no one would decide more slowly and less well. The line falls where it falls for the judge: staff may help the judge do what the judge may lawfully do, and may not gather the outside facts the judge could not gather personally. This unit takes up the help that staff and other judges may give, then the fact-finding that staff may not do, and finally the judge's own duty to keep chambers on the right side of the line.

Staff May Advise on Law

Rule 2.9(A)(3) lets a judge consult "court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities," and other judges as well, on two conditions.² The rule identifies covered staff by function. Law clerks and staff attorneys qualify because their job is to help the judge decide cases. For any other court employee, the question is whether that person's role is to aid the judge's adjudicative work.

The permission exists because judging is hard and benefits from a second mind. A judge facing an unsettled standard for summary judgment, or two lines of precedent that seem to conflict, decides better after talking with a clerk who has read the cases or a colleague who has met the same question. Law is also what the judge is expected to bring to the bench, and the parties address it in briefs and argument. Facts are what the parties must be able to test. The two conditions keep a conversation about law from turning into a channel for facts or a handoff of the decision, and they are best learned as separate requirements.

The first condition is that the judge makes reasonable efforts to avoid receiving factual information that is not part of the record. This applies the ban on independent investigation to the conversation itself. No party sits in chambers, so a fact that surfaces there reaches the judge just as untested as one the judge found alone. "Reasonable efforts" sets the standard for how the judge runs the consultation: put the question as law applied to the record the parties made, and steer the talk away from anything outside it. Whatever the conversation produces, the decision may still rest only on the evidence presented and facts that may properly be judicially noticed.³

The second condition is that the judge does not abrogate the responsibility personally to decide the matter; to abrogate is to give up or hand over. Consultation supplies information and analysis, and the decision stays with the judge. The judge is the officer to whom the parties address their arguments and who answers for the ruling. Staff advice is also private, with no party present to challenge it, so the only check on a flawed recommendation is the judge's own critical review. A judge who skips that review removes the check. The condition does not ask whether the judge disagreed with the clerk. It asks whether the judge exercised judgment, and honest judgment may arrive at the clerk's answer.

The two conditions fail independently, and a fact pattern will usually trigger one while tempting you to look at the other. A judge who personally decides every question but hears from a clerk about a party's reputation, learned from the clerk's own online search, has met the second condition and failed the first. A judge who confines the clerk strictly to the law and the record but signs whatever the clerk drafts has met the first and failed the second. Each condition protects something different: the first keeps untested facts out of the decision, and the second keeps the decision with the person the system holds responsible for it.

Staff Fact-Finding Barred

A clerk who goes beyond advising and begins gathering facts raises the problem the first condition was written to prevent. Rule 2.9(C) forbids the judge to investigate facts independently and confines the judge to the evidence presented and facts that may properly be judicially noticed.⁵ A ban that reached only the judge's own legwork would be easy to sidestep. A judge who wants to know how a machine works could send someone in chambers to find out, and the answer would reach the decision without any party having seen it, challenged its source, or offered a competing account. The untested fact is the same whether the judge's eyes or a clerk's eyes gathered it. A clerk's independent investigation of facts outside the record, reported to the judge, is therefore treated as the judge's own investigation.⁶

Price Bros. Co. v. Philadelphia Gear Corp. supplies the clean example. A law clerk visited a party's factory, watched the machines in dispute operate, and reported what the clerk saw to the judge. The dispute concerned how those machines worked, so the report went to the very question the judge had to decide, and the case treats the clerk's communication as a violation. The visit produced no testimony and no exhibit. The other side could not cross-examine the clerk's impressions, object to them, or show that the machines behaved differently on another day or under other conditions. What a clerk sees on one tour is a sample shaped by circumstance, and the party who did not choose the sample has no way to say so.

That result fits with the permission to consult staff rather than cutting against it. Rule 2.9(A)(3) allows consultation with court staff only if the judge makes reasonable efforts to avoid receiving factual information that is not part of the record.⁷ A clerk's observations of a factory floor are factual information outside the record, and the permission, which exists so the judge can talk through the law and the record with a second mind, does not reach them. The clerk's status as court staff settles who may be consulted. It settles nothing about what the clerk may carry back from the outside world.

When a fact pattern sends a clerk near a party's equipment, premises, or associates, one question controls: what did the clerk examine?

The two clerks may be equally diligent, equally well-meaning, and equally accurate, so none of those qualities explains the different results. The memo writer worked inside the record, where the parties had already tested each statement. The visitor went into the world outside it, where nothing had been tested. The same line governs a clerk who searches the Internet for a description of how such presses usually work, because electronic research is as much an investigation as a visit, and a judge who receives the findings has received untested facts from a person working in chambers. Whether the judge asked for the visit or the clerk went unprompted bears on the judge's own responsibility for what happens in chambers, which the next subsection takes up. It leaves the character of the information unchanged.

Judge's Supervisory Duty

Rule 2.9(D) puts a separate duty on the judge: "A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control."⁹ The preceding subsections marked what staff may do (advise on law and the record) and what they may not do (gather facts from outside it). This rule speaks to the judge and makes the judge responsible for seeing that the line holds in chambers. It covers all of Rule 2.9, and fact investigation is the application that matters most here.

Two features of the text deserve separate attention. The first is that the duty is affirmative. The ban on independent investigation restrains what the judge does, while this rule requires something the judge must do, which is to set up and watch the work of the people in chambers. A judge can therefore breach it without ever leaving the courthouse or opening a search engine. A student who reasons that the judge investigated nothing and so violated nothing has answered the wrong question. The second feature is the standard, which is reasonable efforts. The judge need not guarantee that no employee ever strays, because no judge can watch every act of every person, and a guarantee would turn every staff mistake into a judicial offense. The words "direction and control" shape the scope in the same way: the duty reaches the people the judge is in a position to instruct and supervise, because those are the people whose conduct the judge can actually prevent.

The duty rests on the judge because of how chambers work. A clerk who goes looking for outside facts does so privately, with no party present, so the parties cannot catch the problem and an appellate court sees nothing of it in the record. The judge is the one person who can stop it before the untested information arrives. The rule also gives the judge a reason to say plainly what staff may and may not do, which protects a new clerk who might not realize that a quick online search about a party counts as investigation.

Hold the clerk's conduct constant and change the judge's, and the result changes with it.

Both scenes involve the same kind of staff misconduct, and the difference lies in what the judge did. In the first the judge knew and stayed silent. In the second the judge had set expectations and was monitoring compliance. The scenes illustrate how the reasonable-efforts standard works and do not report what any disciplinary body has decided. A judge who learns that a clerk is straying can hardly rest on earlier instructions alone, and reasonable efforts at that point mean responding to what the judge now knows.

Passing the supervisory test does not cleanse the outside facts themselves. If what the second clerk gathered were to reach the judge, the decision would still have to rest only on the evidence presented and facts properly judicially noticed.¹⁰ The supervisory duty asks whether the judge managed chambers reasonably, and the ban on investigation asks what the decision rests on. Those are two questions with two answers.

Steps three and four decide the supervisory question. Instruction and review support the judge, and knowledge coupled with silence defeats the judge.