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. Judicial clerks should not be confused with legal clerks, court clerks, or courtroom deputies who only provide secretarial and administrative support to attorneys and/or judges.
Judicial law clerks are usually recent law school graduates who performed 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.
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 British and Hong Kong courts, they are known as judicial assistants. The European Court of Justice uses permanent staff attorneys and stagiaires. Australia, Canada, Sweden, and Brazil have notable clerk systems.
Australia
Canada
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. 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 practising 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 Court of Appeal and provincial Courts of Appeal. Each Justice of the Supreme Court hires four clerks for a one-year period. 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. The Court of Appeal for Ontario selects 17 law clerks, who serve either one or two of the 24 Justices. 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 is assigned to 2 to 3 judges. 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. 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.
The Tax Court of Canada hires 12 clerks annually.
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. 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
In England and Wales, law clerks are called judicial assistants. It is possible to be a judicial assistant at the Court of Appeal and at the UK Supreme Court. Only Supreme Court judicial assistants are appointed for a full-time, one-year fixed-term appointment. 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.A separate position, clerks to HM judges, act as administrative assistants to judges of the High Court and Court of Appeal of England and Wales.
European Court of Justice
Sally Kenney's article on clerks, or référendaires, on the European Court of Justice provides one detailed point of comparison. There are some major differences between ECJ clerks and their American counterparts, largely because of the way the ECJ is structured. 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, 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.
France
In France, law clerks are called juristes assistants. They typically go through a competitive nomination and interview process to get accepted as law clerks. Most French courts accept applications for judicial clerkships from graduating law students. Students in their last year of law school are eligible to apply, although most law clerks are PhD candidates in Law or candidates for the bar exam or a French civil service competitive entrance exam such as French National School for the Judiciary, French National School of Public Finances, or French National School of Court Clerks.In the judicial order
Law clerks are hired for three years renewable once. Depending on credentials and curriculum they can be assigned to the bench or the prosecution.The work of a law clerk entails assisting the judges with writing verdicts and decisions and conducting legal inquiries and research.
The most prestigious clerkships available in France are before courts of appeals, which review decisions of lower courts.
In the administrative order
A similar system exists in the administrative courts, including the Conseil d'Etat.Germany
In Germany, there are two different kinds of law clerks.Students of law who, after law school, have passed the first of two required examinations join the Referendariat, a time of two years consisting of a series of clerkships: for a civil law judge, a criminal law judge or a prosecutor, a government office and finally at a law firm. The purpose of this clerkship is solely the legal education of the clerk and not giving assistance to his instructor.
In the Federal Supreme Courts and the office of the Federal Prosecutor General, the duties of law clerks are performed by wissenschaftliche Mitarbeiter. With few exceptions, they are lower court judges or civil servants, assigned for a period of three years to the respective Federal Court, and their clerkships serve as a qualification for a higher judgeship. However, some justices of the Federal Constitutional Court prefer clerks from outside the courts or the civil service, especially those who are or were professors of law and who often hire people from academia. The clerks of the Federal Constitutional Court are deemed very influential and are therefore dubbed the Dritter Senat as opposed to the two official "senates" of 8 justices each which form the court.
Hong Kong
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.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.
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. 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.