Ezel / Ethics Opinions / NYSBA
NYSBA 2020-12-01

Can a retired judge, or the judge's new firm, represent a party in the same easement dispute the judge ruled on a decade earlier?

Short answer: The opinion concludes the former judge is personally and non-waivably disqualified under Rule 1.12(a) from the same matter, but the firm to which the judge is of counsel may take the representation under Rule 1.12(d) if it promptly screens the judge, shares no fee, and gives written notice.
Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1209: Retaining a Former Judge in a Matter the Judge Decided

Short answer: The opinion concludes that a former appellate judge who sat on a panel that issued a dispositive order about an easement is personally and non-waivably disqualified under Rule 1.12(a) from later representing a party on questions about that same easement; the firm to which the judge is of counsel may nonetheless take the representation under Rule 1.12(d) if it promptly and properly screens the judge, apportions the judge no part of the fee, and gives written notice to the parties and tribunal.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is a former New York appellate judge. Ten years ago the inquirer sat on a panel that issued a dispositive order confirming the validity and scope of an easement. Now of counsel to a firm, the inquirer's firm has been approached by the owner of the servient estate of that same easement with questions about obstructions to the easement, equitable relief, adverse possession, and whether subdivision of the dominant estate would "overburden" the easement. The inquirer asked whether their prior judicial service bars the inquirer or the firm from the new representation.

On personal disqualification, Rule 1.12(a) provides a lawyer shall not accept private employment in a matter on the merits of which the lawyer acted in a judicial capacity, and that conflict is non-waivable (citing N.Y. State 1064). The inquirer plainly acted in a judicial capacity and on the merits, so the only question is whether the new advice concerns the same "matter." Following Opinion 1064 and Comment [10] to Rule 1.11, the committee applies a "facts, parties, and time" test: the earlier case turned on the original parties' intent as to the easement's use, and that same intent bears on whether a subdivision would overburden it (and on obstructions and adverse possession), so the matters share the same basic facts; the present owners are the same as, in privity with, or successors to the earlier parties; and although a decade has passed, the dispute still turns on the same unchanged recorded easement agreement, so time does little to lessen the relationship. The matters are therefore the same matter, and the inquirer is personally disqualified under Rule 1.12(a).

On the firm, Rule 1.12(d) allows screening to avoid imputing a former judge's disqualification if the firm acts promptly and reasonably to notify its personnel that the disqualified lawyer may not participate, implements effective screening to block the flow of information, ensures the disqualified lawyer gets no part of the fee, and gives written notice to the parties and any appropriate tribunal, and if no other circumstances create an appearance of impropriety. If the firm complies, Rule 1.12 does not bar it from accepting the representation despite the inquirer's personal disqualification.

In practice

Under this opinion, a New York lawyer who previously decided a matter as a judge is personally and non-waivably barred under Rule 1.12(a) from later representing a party in that same matter, with sameness determined by the facts-parties-time test of Comment [10] to Rule 1.11. Per the opinion, the lawyer's firm may still take the representation under Rule 1.12(d) if it promptly screens the former judge from the matter, ensures the judge receives no part of the fee, and gives written notice to the parties and any tribunal, provided no other circumstance creates an appearance of impropriety.

Common questions

Q: Can a retired judge represent a party in a matter the judge ruled on as a jurist?

A: No. Per the opinion, Rule 1.12(a) bars accepting private employment in a matter on the merits of which the lawyer acted as a judge, and that disqualification cannot be waived.

Q: How is it decided whether the new work is the "same matter"?

A: Per the opinion, the committee applies the facts-parties-time test from Comment [10] to Rule 1.11: whether the matters share basic facts, involve the same or related parties, and how much time has elapsed.

Q: Does ten years between the cases change the result?

A: No. Per the opinion, because the dispute still turns on the same unchanged recorded easement agreement, the passage of a decade has little mitigating effect on the relatedness.

Q: Can the former judge's firm take the case?

A: Yes, with safeguards. Per the opinion, Rule 1.12(d) permits the firm to proceed if it promptly screens the judge, shares no fee with the judge, and gives written notice to the parties and tribunal, absent any appearance of impropriety.

Background and rules framework

The opinion interprets Rule 1.12(a) (lawyer who acted in a judicial capacity) and Rule 1.12(d) (screening to avoid imputation of a former judge's conflict), drawing on the "same matter" test in Comment [10] to Rule 1.11 and Rule 1.11(e). These correspond to ABA Model Rules 1.12 and 1.11.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.12(a), 1.12(d), 1.11(e) and Cmt. [10]
  • New York Code of Judicial Conduct (22 NYCRR Part 100); Judiciary Law § 17
  • ABA Model Rules 1.12, 1.11 (analogues)

Cases:

  • People v. Burks, 172 A.D.3d 1640 (3d Dep't), lv. denied, 33 N.Y.3d 1102 (2019), citing N.Y. State 1064

Other opinions cited:

  • N.Y. State 1064 (2015): former judge, the non-waivable Rule 1.12(a) bar, and the same-matter test

See also

Source