Can a former federal law clerk work on a bankruptcy matter pending before the judge he clerked for?

Plain-English summary

The inquiry came from a former law clerk to a federal judge who was now an associate in a firm representing the trustee in a Chapter X proceeding pending before that same judge. While with the court, the inquirer had screened proposed orders submitted by a special master, sat in on certain hearings, and discussed those proceedings with the judge. He asked whether his court service barred him from performing legal services for the trustee on bankruptcy matters that had not previously been before the court.

A majority of the committee concluded he was precluded and could not perform any legal services in connection with the bankruptcy. It relied on DR 9-101(B): "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." Such employment would create an appearance of impropriety even if none existed (EC 9-3), and the committee cited ABA Informal Opinion 1092. A minority believed the former clerk was disqualified only as to matters that had involved a controversy before the special master or district judge, or the exercise of judicial discretion, occurring before he left government service.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.11 and 4-1.12 before relying on any specific requirement mentioned here.

Common questions

Q: Can a former law clerk work for a party in a case pending before the judge he clerked for?

A: The opinion concluded the majority view was that he could not perform any legal services in connection with that bankruptcy proceeding.

Q: What rule did the committee rely on?

A: Per the opinion, DR 9-101(B), barring private employment in a matter in which the lawyer had substantial responsibility as a public employee, together with the appearance-of-impropriety principle in EC 9-3.

Q: Was the committee unanimous?

A: No. A minority would have disqualified him only as to matters that had been in controversy or involved judicial discretion before he left the court.

Background and rules framework

The opinion applied DR 9-101(B) and EC 9-3 of the former Code of Professional Responsibility, addressing a lawyer's later private employment in a matter handled while a public employee. Those provisions correspond to Model Rule 1.11 (former government officers and employees) and Model Rule 1.12 (former judges, law clerks, and adjudicative officers); the current Florida counterparts are Rules 4-1.11 and 4-1.12.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 9-101(B); EC 9-3 (former public employee; appearance of impropriety)

Other opinions cited:

• ABA Informal Opinion 1092

See also

• FL Bar Ethics Op. 76-18: Assistant City Attorney Conflict

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-24/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-24-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-24
May 23, 1977
Advisory ethics opinions are not binding.
An attorney may not perform any legal services for the trustee in a Chapter X proceeding pending before the judge for whom he is a former law clerk.
Note: Judicial conduct is governed by the Code of Judicial Conduct. The Judicial Ethics Committee issues opinions interpreting this Code.
CPR: EC 9-3; DR 9-101(B)
Opinion: ABA Informal 1092
Chairman Sullivan stated the opinion of the committee:
This inquiry comes from a former law clerk to a federal judge who is now an associate in a firm which represents the trustee in a Chapter X proceeding pending before the judge for whom the inquirer clerked.
While he was with the court, the inquirer screened proposed orders submitted to the judge by a special master, sat in on certain hearings and discussed those proceedings with the judge.
He asks whether his service with the federal court precludes his performing legal services for the trustee on matters involved in the bankruptcy which have not previously been before the court.
A majority of the Committee is of the opinion that he is precluded and may not perform any legal services in connection with the bankruptcy.
DR 9-101(B), which governs this inquiry, provides:
A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.
Such employment would create an appearance of impropriety even if none existed. EC 9-3. See also, ABA Informal Opinion 1092.
A minority of the Committee believes that the former law clerk is disqualified to act only in those matters in the bankruptcy proceeding where there was some controversy before the special master or district judge or which involved the exercise of judicial discretion and which occurred prior to the time the law clerk left government service.