Could a new Maine judge wait until year-end to calculate his share of former-firm income?

Plain-English summary

A newly appointed judge asked whether his former law firm could calculate his share of income at the end of 2005, as the firm normally did, even though his share related to work before he took the bench in August. Source: Opinion 05-2.

The committee concluded that the amount owed for the judge’s former firm interest should be determined as of the date he became a judge, rather than deferred to December 31. It said the proposed delay did not conform with the Canons. Source: Opinion 05-2.

The committee said the agreed amount could be paid over time if the parties agreed. It also concluded that, while any sum remained due from former partners or associates, the judge had to disqualify in proceedings in which they appeared. Source: Opinion 05-2.

In practice

For this former-firm arrangement, the opinion required fixing the amount due at the judicial transition and tied recusal to any outstanding payment from former partners or associates. Source: Opinion 05-2.

Common questions

Q: Could the firm wait until year-end to determine the judge’s share?

A: No. The committee said the amount due should be determined when he became a judge. Source: Opinion 05-2.

Q: Could payment of the fixed amount occur later?

A: The opinion said payment over time was possible if the parties involved agreed. Source: Opinion 05-2.

Q: When did the opinion require disqualification?

A: It required the judge to disqualify while any sum remained due from former partners or associates in a proceeding where they appeared. Source: Opinion 05-2.

Background and rules framework

The opinion applied Maine Code of Judicial Conduct Canon 4(D)(3) on service in a business entity. It cited Nebraska Advisory Opinion 89-1 and U.S. Advisory Opinion 24 (revised 1998) on post-departure firm profits. The scanned conclusion was checked against page two of the official PDF. Source: Opinion 05-2.

Citations and references

Maine Code of Judicial Conduct:

• Canon 4(D)(3).

Other opinions cited:

• Nebraska Advisory Opinion 89-1, on post-departure profits.
• U.S. Advisory Opinion 24 (revised 1998), on post-departure profits.

See also

No sibling opinions yet indexed.

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 05-2

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL ETHICS COMMITTEE

oot

~ : | Advisory Opinion 05-2
. Issued: September 21, 2005

Issue

May a Maine Judge who has been appointed and qualified be barred from participating under Canon 4(D)(3) from the calculation and payment of his share of his former law firm’s income in December, 2005 for that portion of the year prior to his undertaking the judgeship; namely, January 1, 2005 to August 30, 2005.

Statement of Facts

With regard to the Judge’s former law firm, the annual earnings of the shareholders in the firm are historically determined at the end of each year, when all expenses and revenues are known for the entire year. The shareholders have only received a basic monthly draw during the year 2005.

Canon 4(D)(3) provides as follows:

(3) | A judge shall not serve as.an-officer,-director, manager, general partner, advisor

or employee of any business entity except that a judge may, subject to the requirements

of this Code, manage and participate in:
(a) a business closely held by the judge or members of the judge’s family, or

(b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.

Discussion
As we read the inquiry, the Judge would in fact disqualify himself from participating in any judicial proceeding in which his former partners or associates would appear during the period ending December 31, 2005. We have reviewed the decisions of Ethics Committees of other jurisdictions faced with

_ this problem with which almost any new judge is faced when coming from the private sector. It

has been stated that a judge may not share in the profits a firm earns after the judge’s departure. Nebraska Advisory Opinion 89-1; U.S. Advisory Opinion 24 (revised 1998). Furthermore, a judge must divest all financial interest in a professional legal association (or corporation) upon taking the bench.

In sum, determining the amount of money that is due to the judge from his former law partners should be determined as of the date that he becomes a judge. The proposal here would defer that determination until December 31, 2005.

Conclusion

The Committee views the proposal advanced by the Judge not to be in conformance with the Canons of Judicial Ethics and suggests that the Judge should work out a lump sum that is due for his interest in the firm practice from January 1, 2005 to the date of his acceptance of the judgeship.

Various decisions in other jurisdictions allow the payment of the amount due over time so

. the former law. partners are protected. We believe those decisions are applicable here, if the parties involved agree. Obviously, regardless of any other disqualification provisions that might apply, so long as any sum remains due to the Judge from his former partners and associates, he

must disqualify himself in any proceeding in which they may appear.