May a newly elected circuit judge retain employees to wind down a law practice after taking office?
Apply this to your situation
This page answers the general question as of 2018. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
An incoming circuit judge had begun closing a two lawyer practice and asked whether two employees could finish files, collect fees and close cases after the judge took office. The judge said no legal work would be performed, advertising and signage had stopped, and pending cases would have withdrawal or substitution motions filed before the transition.
The Commission read Rule 3.11(B) and (C) as allowing a winding down. Given the short transition and the safeguards against the public mistaking the judge for a practicing lawyer, it permitted retaining two employees to assist.
In practice
The opinion permits the specified employee assistance for winding up the former practice on the stated facts.
Common questions
Q: May the two employees remain during the winding up?
A: Yes. The Commission permitted them to assist with the described closure.
Q: What facts mattered to the Commission?
A: It cited the short time before taking office and safeguards against the appearance that the judge would continue practicing law.
Background and rules framework
Rule 3.11(B) and (C) governs financial and business activities of judges. The opinion read those provisions, including Comment 2 on divesting interests, as contemplating a period to wind down a former practice.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 3.11(B), (C) and Comment 2, financial and business activities during transition to judicial office.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2018-12, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston , West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831
May 16, 2018
Re: JIC Advisory Opinion 2018-12.
Dem
Yom recent request for an advisory opm10n was reviewed by the Judicial Investigation Commission. The facts giving rise to your request are as follows:
You ran for the unexpired te1m of Circuit Comt Judge in your jurisdiction. You were elected to the position on May 8, 2018, and pursuant to State law are to fill the unexpired term immediately upon ce1tification of the results. You cunently·work in a two person office. Your partner has been off work since September 2017. Following the election, your partner and you have decided to close down the practice. You have stopped all firm adve1tising in the county newspaper and on television.
You have removed the sign from the building, and as of May 18, 2018, the telephone will no longer be answered as a law office. You have recently settled 4-5 personal injury cases and there are other individuals who owe you substantial amounts of money in fees. You want to know if you can keep two employees at the office to close down files, collect fees and close out cases after you become Judge. You have stated that absolutely no legal work will be perf01med. You also indicated that before taking office, you will file motions to withdraw or substitution of counsel in all cases which are in any court.
To address the questions, the Commission has reviewed Rules 3.1 l(B) and (C) of the Code of Judicial Conduct which provide:
JIC Advisory Opinion 2018-12
May 16, 2018
Page 2 of2
Rule 3.11 - Financial, Business, or Remunerative Activities
(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge's family; or
(2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family.
(C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.
Comment [2] to the Rule states that "[a]s soon as practicable without serious financial detriment, the judge must divest himself or herself of inveshnents and other financial interests that might require frequent disqualification or otherwise violate this Rule."
The Rule clearly contemplates a winding down of your law practice. Given the time constraints for taking judicial office and the pmticular safeguards you have put in place to ensure that the public does not mistake you for practicing law while a judge, the Commission is of the opinion that you can keep two employees assist you during the winding up process.
Thank you for your inquiry. If there is any fmther question regarding this matter please do not hesitate to contact the Commission.
Sincerely, m
~ ~son,C~
Judicial Investigation Commission
REW/tat
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