Can a former judge represent a party on a child-support matter where, as judge, the lawyer issued the support order at issue?

Plain-English summary

The opinion addressed a former circuit judge who, after leaving the bench, wished to represent a party on a petition to adjust or collect child support where the lawyer, while serving as a judge, had issued the specific support order at issue. The question was whether the lawyer could take the representation.

The Committee applied MRPC 1.12(a), which bars a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, unless all parties to the proceeding consent after consultation. It noted the Rule draws no distinction based on whether the matter is pending before the court on which the lawyer previously sat. Citing RI-260, the Committee distinguished a situation where a former special master later represented a party in a different matter without having received nonpublic information; here, by contrast, the lawyer had issued the very order at issue. The Committee concluded that unless all parties consent after consultation, the lawyer may not represent a party in the child-support proceeding.

The Committee then addressed imputation under MRPC 1.12(c). If the former judge is disqualified and consent is not obtained, no other lawyer in the firm may undertake or continue the representation unless the disqualified lawyer is screened from any participation in the matter and apportioned no part of the fee, and written notice is promptly given to the appropriate tribunal so it can verify compliance.

Currency note

This opinion was issued in 1997 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a former judge represent a party on a matter the judge personally decided?

A: Not without consent. The opinion concluded that under MRPC 1.12(a) the lawyer may not represent a party in a matter in which the lawyer participated personally and substantially as a judge unless all parties consent after consultation.

Q: Does it matter whether the case is still before the lawyer's former court?

A: No. The opinion noted that MRPC 1.12(a) makes no distinction based on whether the matter is pending before the court on which the lawyer previously sat.

Q: Can the disqualified former judge's firm still handle the matter?

A: Per the opinion, only if the former judge is screened from any participation, is apportioned no part of the fee, and the tribunal is given prompt written notice so it can verify compliance, under MRPC 1.12(c).

Background and rules framework

The opinion interprets MRPC 1.12(a) and (c) / Model Rule 1.12 (a former judge or adjudicative officer's later involvement in the same matter, and screening of the disqualified lawyer's firm). The Committee analogized to MRPC 1.10(b) and drew on JI-28, JI-29, and RI-260.

Citations and references

Rules of Professional Conduct:

• MRPC 1.12(a) / Model Rule 1.12 (former adjudicative officer; same matter; consent)
• MRPC 1.12(c) / Model Rule 1.12 (firm imputation; screening; notice to tribunal)

Other opinions cited:

• RI-260: a former special master could later represent a party in a different matter where no nonpublic information was received
• JI-28, JI-29: cited on prior judicial participation and disqualification
• JI-97: in accord on screening conditions

See also

• Mich Ethics Op. RI-129: Referee Who Also Serves as Assistant City Attorney
• Mich Ethics Op. RI-011: Adjudicator Negotiating Employment in a Pending Matter
• NY State Bar Op. 1209: Former Judge and Firm Disqualification

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1158&Type=6

Original opinion text

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

RI-288

February 10, 1997

SYLLABUS

A lawyer may not represent a client on a petition to adjust child support or for collection of child support, when the lawyer while serving as a judge had issued the support order, unless all parties consent after consultation.

If the lawyer's participation is precluded, no other member of the lawyer's firm may undertake or continue the representation, unless the lawyer is screened from any participation in the matter, will be apportioned no part of the fee, and the tribunal before which the matter is pending is given prompt written notice in order that it may ascertain compliance with the screening requirement.

References: MRPC 1.12(a) and (c); JI-28, JI-29; RI-260.

TEXT

Advice is sought as to whether a former circuit judge, after leaving the bench, may represent a party on a petition to adjust child support or to collect child support where the lawyer, while serving as a judge had issued the specific support order which is at issue.

MRPC 1.12(a) states:

"(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after consultation."

The Rule makes no distinction as to whether or not the matter is pending before the court on which the lawyer had previously sat as judge. MRPC 1.10(b) contains a similar provision with respect to lawyers and prior representation. See JI-28, JI-29. RI-260 concluded that a lawyer who was appointed by the court as a special master and issued a report regarding findings and recommendations, may subsequently represent one of those parties in a legal malpractice action against a lawyer who participated in the prior proceeding, where the two matters are not the same and the special master did not receive any information while acting as the special master that was not generally known or readily available by other means. Emphasis added.

Thus, unless all of the parties consent after consultation, the lawyer may not represent a party in the child support proceeding in question.

Where consent of all the parties is not obtained, and the lawyer (former judge) is precluded from representing a party in the proceeding in question, other members of the lawyer's firm would likewise be precluded unless specific conditions are met. MRPC 1.12(c) states:

"(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter, unless:

"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

"(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule."

If the lawyer is precluded from such representation, other members of the lawyer's firm would be likewise precluded unless the lawyer is screened from all participation in the matter, will be allocated no portion of the fee, and the court before which the matter is pending is promptly notified in writing so that it can monitor compliance with these rules. In accord JI-97.