May a former law clerk, now in private practice, represent a client whose case was pending before the judge the lawyer clerked for?

Plain-English summary

The Committee was asked whether an attorney who had been a law clerk to a Superior Court judge, and who then entered private practice by joining a law firm, could represent a client (in court, by professional consultation or assistance, by legal research, or by factual research and investigation) where the client's case had been before the judge during the clerkship. The question distinguished three levels of the clerk's prior contact: (A) the case was merely pending before the judge; (B) the case was pending and the clerk had administrative contact, such as bringing the file to the judge for a motion; and (C) the case was pending and the clerk had performed legal research and drafted a memorandum on the law for the judge on an issue raised by a party.

The opinion concluded the attorney would be entitled to perform the listed services if his contact had been solely as described in (A) or (B). If his contact had been more substantive, as in (C), he would not be entitled to participate in any way in representing the client in that case, because of the appearance of impropriety in having dealt substantively with the case as an agent of the court and then adopting an advocacy role in the same case.

Currency note

This opinion was issued in 1976 and amended in 1979, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The disqualification of former judges, arbitrators, and law clerks is now treated by Model Rule 1.12, whose terms differ from the analysis here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a former law clerk's firm take a case that was before the judge during the clerkship?

A: The opinion concluded the former clerk himself may participate only if his clerkship contact with the case was merely that it was pending or purely administrative; substantive involvement bars his participation in that case.

Q: What kind of clerkship contact disqualifies the lawyer?

A: The opinion concluded that substantive contact, such as performing legal research and drafting a memorandum for the judge on an issue in the case, disqualifies the lawyer from participating in that case.

Q: Why does substantive involvement matter?

A: The opinion reasoned that having dealt substantively with the case as an agent of the court, and then taking an advocacy role in the same case, creates an appearance of impropriety.

Background and rules framework

The opinion applied the appearance-of-impropriety principle of the former Code (Canon 9, with DR 9-101), the subject now treated by Model Rule 1.12 (former judge, arbitrator, mediator, or law clerk), distinguishing administrative from substantive clerkship contact with a case.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• Canon 9, DR 9-101 (appearance of impropriety; successive roles) (cf. Model Rule 1.12)

See also

• Alaska Ethics Op. 83-4: From Government to a Firm Suing the Agency
• Alaska Ethics Op. 95-2: Former Government Employee Conflicts
• Alaska Ethics Op. 78-3: Firm Hiring the Opposing Party's Lawyer

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/76-8.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 76-8
Propriety of an Attorney in Private Practice Representing Clients Whose
Cases were Pending Before a Judge While He was the Judge's Law Clerk.
The Committee has been asked the following question:
With regard to an attorney admitted in Alaska who has been a law clerk
to a Superior Court judge and who has entered private practice by joining an
existing law firm, may he do any of the following:
1) Represent a client in court;
2) Give professional consultation or assistance to a client;
3) Perform legal research relating to a case of a client; or
4) Do factual research and investigation relating to a case of a client;
when that client has been represented by the law firm before the Superior
Court judge to whom the law clerk had served under the following
circumstances:
A) When the client's case was merely pending before the judge;
B) When the case was pending and the law clerk had had administrative
contact with the case such as merely bringing the file to the judge at the time
for his consideration of a motion made in the case; or
C) When the case was pending and the law clerk had performed legal
research and had drafted a memorandum on the law for the judge on an issue
raised by either of the parties to the case?
The attorney would be entitled to perform the services enumerated 1, 2,
3, and 4 in the event that his contact with the case had been solely as
described in paragraphs A and B. If this contact had been more substantive,
such as that described in paragraph C, he would not be entitled to participate
in any way in the representation of the client in that case because of the
appearance of impropriety associated with having dealt substantively with the
case as an agent of the court, and then adopting an advocacy role in the same
case.
Adopted by the Board of Governors on March 31, 1979.
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