Can a lawyer who used to be the judge on a case advise the lawyers still litigating it, and does that disqualify their firm?

Plain-English summary

After returning to private practice, a former judge discussed and advised a lawyer about a pending case over which the former judge had presided and made substantive rulings, including analyzing the evidence and the rulings of the successor judge and giving direction on the ongoing proceedings. The inquiry asked whether the former judge and the consulting lawyer violated the Rules, and whether the lawyer must withdraw.

The opinion concluded that Rule 1.12(a) bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, absent consent of all parties after disclosure. It acknowledged that the former judge here was not shown to be a firm member or to be compensated, so it could be argued he was not "representing" anyone, but it concluded the Rule should not be read so narrowly: whether paid or not, the former judge was assisting those representing a party who had been before him, and the Rule's language was broad enough to reach the situation. It drew support from prior Opinion No. 800, which held that as to cases on which a judge acted in a substantive capacity, "he is disqualified from all further involvement in that matter."

The opinion concluded that because the former judge's consulting, assisting, and directing ran afoul of Rule 1.12(a), the lawyer who obtained that assistance participated in a violation, and that he and his firm are disqualified from further representation under Rule 1.12(c), which disqualifies a firm that fails to screen a former judge from a matter over which he previously presided.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 1.12), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a former judge advise lawyers on a case he presided over?

A: The opinion concluded he may not, because Rule 1.12(a) reaches his personal and substantial involvement as a judge even when he is only informally advising and is not compensated.

Q: Does the consulting lawyer's firm get disqualified?

A: The opinion concluded yes; the firm that draws on the former judge's advice without screening him is disqualified from further representation under Rule 1.12(c).

Q: Could the parties consent to the former judge's involvement?

A: Rule 1.12(a) permits representation only if all parties consent after disclosure; the opinion found the conduct improper on facts where no such consent was indicated.

Background and rules framework

The opinion interpreted Rule 1.12(a) (a lawyer may not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, absent the parties' consent after disclosure) and Rule 1.12(c) (disqualification of a firm that fails to screen a former judge) (Model Rule 1.12).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.12 (former judge, arbitrator, or law clerk) / Illinois Rule 1.12(a), (c)

Other opinions cited:

• ISBA Advisory Opinion No. 800: a judge is disqualified from all further involvement in a matter he acted on substantively

See also

• ISBA Ethics Op. 11-05: Lawyer Likely to Be Disqualified as a Necessary Witness
• ISBA Ethics Op. 93-18: Related Matter Where Interests Align

Source

• Landing page: https://www.isba.org/ethics/opinions/9409