Can a former judge appear as a lawyer in a case that was pending in his court if he never ruled on its merits?

Plain-English summary

The committee was asked whether a circuit judge who had not been reelected could participate as an attorney in a case that had been filed in his court while he was judge, where he had not been called on to pass on the merits but had ruled only on perfunctory motions. It answered yes.

The committee analyzed the question under Canon 36, which provides that a lawyer should not accept employment as an advocate in a matter on the merits of which he has previously acted in a judicial capacity, and that a lawyer who has held public office should not, after retirement, accept employment in connection with a matter he investigated or passed upon while in office. It restated the broader principle that a judge or lawyer should at all times avoid any action that would cause the public to question the propriety of his conduct or to doubt the judicial process, and it urged that every former judge exercise great care to avoid any semblance of influence or favor in cases pending in his court before his retirement.

Applying that standard to the facts, the committee found that the judge had not passed in any manner on a motion or matter going to the merits of the cause of action. On that strict reading, it concluded it would not be unethical or improper for the former circuit judge to participate as an attorney in such a case, because he had not been called on to pass on the relative merits of the action filed in his court before he left office.

Currency note

This opinion was issued in 1964 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific point mentioned here.

Common questions

Q: Can a former judge serve as a lawyer in a case that was pending in his court?

A: Under this opinion, yes, where he never acted on the merits. The committee read Canon 36 to bar later advocacy only in matters on whose merits the lawyer previously acted in a judicial capacity.

Q: Did it matter that the judge had ruled on some motions?

A: The committee found those rulings perfunctory and not going to the merits, so they did not disqualify him; the line it drew was whether he had passed on the merits of the cause of action.

Q: What caution did the committee add?

A: It stressed that any former judge should exercise great care to avoid any semblance of influence or favor in accepting employment in cases that were pending in his court before his retirement.

Background and rules framework

The opinion applied Canon 36 of the former Canons of Professional Ethics, which restricted a lawyer from acting as an advocate in a matter on whose merits he had previously acted in a judicial capacity, or from accepting employment after public service in a matter he had investigated or passed upon in office. The modern analog is Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), with Kentucky's counterpart at SCR 3.130(1.12).

Citations and references

Rules of Professional Conduct:

• Canon 36 (advocate in a matter previously acted on in a judicial capacity; employment after public office); modern analog Model Rule 1.12

See also

• KBA Ethics Op. E-16: Court Officer Practicing in Court
• KBA Ethics Op. E-37: County Attorney Partner Conflicts

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-020.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-20
Issued: May 1964

Question:

May a Circuit Judge who has not been reelected to office participate as an
attorney in a case which had been filed in his court while he was Circuit
Judge, but he was not called upon to pass on the merits of the case, but only
on perfunctory motions not concerning the merits of the action?

Answer:

Yes.

References:

Canon 36
OPINION

This question comes under the provisions of Canon 36 of the Canons of
Professional Ethics, which reads as follows:
A lawyer should not accept employment as an advocate in any
matter upon the merits of which he has previously acted in a judicial
capacity.
A lawyer, having once held public office or having been in the
public employ, should not after his retirement accept employment in
connection with any matter which he has investigated or passed upon while
in such office or employ.
A judge or a lawyer should at all times avoid by every means any action which
would cause the general public to question the propriety of his actions, or which would
tend to cause doubt in the mind of the public as to our judicial process.
In view of the fact that this question arises in any case where a judge retires from
judicial office, this question becomes of great importance to any lawyer who finds himself
in this position and who must, of necessity or choice, return to the active practice of law.
Great care should be exercised by any former judge to avoid any semblance of influence or
favor in accepting employment, in any cases which were pending in his court prior to the
date of his retirement.
In the question submitted, however, and the facts as stated therein, it would appear
that as judge of a Circuit Court no motion or other matter which went to the merits of the
cause of action was passed upon in any manner. Under this strict interpretation of the

question, it is the Opinion of the Committee that in such a proceeding it would not be
unethical or improper for a Circuit Judge who has not been reelected to office to participate
in such a case or cases when he has not been called upon to pass in any manner upon the
relative merits presented in the cause of action filed in his court prior to the time of his
retirement from office.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.