The handbook for federal law clerks was revised Monday to make it clear that they and other judicial employees can make complaints about sexual harassment without fear of violating the judiciary's code of confidentiality.

The change came the same day Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit abruptly retired after former clerks and others claimed he engaged them in sexually charged encounters and unwanted behavior.

In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:

“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”

The widely used handbook, published by the Federal Judicial Center, was one target of a letter that has been signed by more than 300 former federal law clerks and others in the last several days as the Kozinski controversy deepened.

The letter urged the handbook be revised, and other measures be taken, to make it clear that confidentiality rules do not prevent judicial employees from filing complaints about the judges for whom they work. The letter-writers said the handbook “does not appear to contemplate the possibility that a clerk may face harassment in her job, much less provide guidance about how that clerk should proceed if she believes she has encountered harassment.”

The letter also expressed concern that the judiciary's confidentiality rules as written “can be used to shield, if not enable, harassment.”

The signature campaign was initiated by current law clerks who reached out to former clerks, interns, lawyers and others in recent days. One of the organizers said Monday they did not want to speak on the record until the letter is delivered on Thursday.

Chief Justice John Roberts Jr. Credit: Diego M. Radzinschi/ The National Law Journal

The letter is addressed to Third Circuit Judge Anthony Scirica, chair of the Judicial Conference's Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference. The letter does not make recommendations pertaining to the Supreme Court's own handling of misconduct, which is not governed by the Judicial Conference.

Heidi Bond, one of the former Kozinski law clerks who called him out for inappropriate behavior during her clerkship 10 years ago, wrote in an online narrative that her fear of violating clerk confidentiality rules helped keep her from making a complaint about Kozinski's actions.

“On the last day of my clerkship, he told me that the beauty of judicial confidentiality was that it went two ways,” wrote Bond, who went on to clerk for Justice Sandra Day O'Connor. “As long as I never, ever told anyone what had happened in chambers with him, he would never tell anyone what had happened with me.”

Bond also urged that the clerk handbook be changed to clarify the scope of confidentiality requirements.

The clerk letter also asks the federal court system to create a national reporting system for clerks, interns, or other judiciary employees to access without having to go to the judge for whom they work. Another recommendation was for judicial officials to “publicly reassure individuals who are considering reporting accounts of sexual misconduct or harassment that their stories will be heard and that they need not fear retaliation.”

The group urges Chief Justice Roberts to address the issue in his annual year-end report, which is posted on New Year's Eve. On Dec. 14, Fix the Court, an advocate for greater transparency from the high court, sent a letter to Roberts with a similar request.

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