Can a former workers' compensation judge represent the insurance carrier against a claimant whose earlier claim he decided as a judge?

Plain-English summary

An attorney participating in an insurance carrier's defense of a workers' compensation claim (for a cardiovascular injury) disclosed that, three years earlier, he had as a workers' compensation judge heard and decided an earlier claim by the same claimant for a heart injury, in the claimant's favor. He stated the merits of the earlier claim were no longer pertinent and asked whether he could continue to represent the carrier. The Committee concluded he could not.

The Committee held the inquiry was governed by Canon 36, which provides that 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. It reasoned that whether the merits of the earlier claim were pertinent to the present claim was relatively unimportant, because the slightest possibility of having to use information gained in his service as judge forbids the attorney from acting as counsel. To allay any possible suspicion, the attorney should discontinue his representation of the carrier, consistent with the appearance-of-impropriety principle stated in Opinions 32 and 88 and ABA Opinion 49.

Currency note

This opinion was issued in April 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics (Canon 36) and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. A former judge's conflict in a matter in which he participated personally and substantially is now treated under RPC 1.12. Treat this page as historical context, not current guidance.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 represent a party in a new case involving someone whose earlier case he decided?

A: Not under this opinion. The Committee held the former workers' compensation judge could not represent the carrier against a claimant whose earlier claim he had decided, under Canon 36.

Q: Does it matter whether the earlier case's merits are relevant to the new one?

A: No. The Committee found that relatively unimportant, because even the slightest possibility of using information gained as a judge forbids the lawyer from acting as counsel.

Background and rules framework

The opinion applied Canon 36 of the Canons of Professional Ethics, barring a lawyer from advocating in a matter on whose merits he previously acted judicially, reinforced by the appearance-of-impropriety principle. In current New Jersey terms the former-judge conflict is governed by RPC 1.12.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 36 (retirement from judicial position)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)
• NJ ACPE Opinions 32, 87 N.J.L.J. 185 (1964); 88, 89 N.J.L.J. 49 (1966)

See also

• NJ ACPE Op. 167: A Municipal Judge Representing Land Developers
• NJ ACPE Op. 162: An Assistant Prosecutor Suing the Local Police

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp150-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 209, April 3, 1969

OPINION 150

Conflict of Interest Former Judge of Workmen's Compensation Defending Carrier

This inquiry is submitted by an attorney actively participating in the insurance carrier's defense of a workmen's compensation claim for an injury involving a cardiovascular episode. The records disclose that three years prior to the present claim, the attorney as judge of workmen's compensation, heard and decided an earlier claim in favor of the present claimant for an injury involving the heart. The inquiry states that the merits of the earlier claim are no longer pertinent and seeks an advisory opinion as to whether the attorney may continue his representation of the carrier. We conclude that he may not.

This inquiry is governed by Canons of Professional Ethics, Canon 36:

Retirement From Judicial Position or Public Employment. 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.

Whether or not the merits of the earlier claim are pertinent to the present claim is relatively unimportant. In such a situation the slightest possibility of having to use information gained in his service as judge forbids the attorney from acting as counsel in the present case.

To allay any possible suspicion that might arise, the attorney should discontinue his representation of the carrier. This principle was set forth in our Opinions 32, 87 N.J.L.J. 185 (1964), and 88, 89 N.J.L.J. 49 (1966), wherein we stated:

If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931).