Can a former town justice later appear as town attorney in a matter he ruled on while he was the judge?

Plain-English summary

The committee was asked whether a former town justice could appear as town attorney in a matter he had acted upon as town justice. It answered that he could not. Citing the need to maintain public confidence in the integrity of the profession, the committee applied DR 9-101(A), which makes it improper for an attorney who previously occupied a judicial position to accept any employment in a matter upon whose merits he has acted in a judicial capacity.

The committee reinforced the result with EC 9-3, which provides that after a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility before leaving, because doing so would give an appearance of impropriety even if none exists. It cited ABA Inf. 606 (1962) to the same effect.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the successive-conflict bar for former judges and other adjudicative officers is now in Rule 1.12. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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 be a lawyer in a case he previously decided?

A: Under this opinion, no. The committee held it improper under DR 9-101(A) to act as an advocate in a matter on whose merits the lawyer previously acted as a judge.

Q: Does the rule require proof of actual bias?

A: Per the opinion, no. EC 9-3 bars the employment because it would give an appearance of impropriety even if none in fact exists.

Background and rules framework

The opinion applied DR 9-101(A) (refusal to accept employment in a matter on whose merits the lawyer acted judicially) and EC 9-3 (post-government-employment restraint) of the then-current New York Code. The current analogue is Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), which bars representation in a matter in which the lawyer participated personally and substantially as a judge.

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge or adjudicative officer)
• NY EC 9-3; DR 9-101(A)

Other opinions cited:

• ABA Inf. 606 (1962): a former judge may not later handle a matter he adjudicated

See also

• NY State Bar Op. 392: A part-time State Estate Tax Attorney in private practice
• NY State Bar Op. 391: A judicial candidate's campaign material
• NY State Bar Op. 419: Prosecutor who was former Legal Aid chief

Source

• Landing page: https://nysba.org/opinion-389/