Can a lawyer who once represented a judge appear before that judge in later, unrelated cases?

Plain-English summary

The committee took up whether a lawyer who had represented a judge could later appear before that judge in unrelated matters, assuming the prior matter was closed, the lawyer was paid (so DR 7-110(A) and EC 7-34, which bar giving a judge a thing of value, were not implicated), and neither lawyer nor judge tried to trade on the relationship. Read narrowly, the committee found no mandatory Disciplinary Rule of the Code of Professional Responsibility and no Canon of the Code of Judicial Conduct that directly forbids the later appearance.

Even so, the committee concluded that Canon 9's broad principle, and EC 9-6 in particular, cast a specter of impropriety over the proposed conduct and should disqualify the lawyer and his associates from appearing before a judge the lawyer had represented; the parallel appearance-of-impropriety provisions of the Code of Judicial Conduct (CJC Canon 3(C)(1)) would similarly enjoin the judge from hearing the matter. Where others learn of the prior representation, there is no way to avoid the suspicion that the judge may feel indebted to former counsel, and a judge sensitive to that suspicion might withhold otherwise appropriate rulings, to the unfairness of counsel's current client.

The committee preferred judicial disqualification as the practical fix: in almost all cases the judge should recuse himself rather than force the lawyer to give up the client (citing N.Y. State 384 and N.Y. City 893), except where the judge is already involved in the case, is the only judge available, or the lawyer was chosen precisely to force recusal, in which case the lawyer must decline. It held the appearance is not lessened when the lawyer's partners appear instead, distinguishing N.Y. State 502 (1979) (former assistant DA's firm). Waiver of judicial disqualification under CJC Canon 3(D) is possible only where limited representation and the passage of time leave no real purpose to recusal; defending a judge against charges of misconduct in office would make any waiver inappropriate and ineffective. The question was answered in the negative.

Currency note

This opinion was issued in 1979, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. Canon 9's "appearance of impropriety" standard was not carried forward into the Rules of Professional Conduct; the personal-interest and imputation concerns now appear at Rules 1.7 and 1.10, and judicial recusal is governed by the Rules Governing Judicial Conduct. 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 lawyer appear before a judge he previously represented?

A: The committee concluded he should not, even in unrelated matters and absent any actual impropriety, because the appearance of impropriety persists once others learn of the prior representation.

Q: Does it help if the lawyer's partner handles the appearance instead?

A: No. The committee held the appearance of impropriety is not appreciably lessened when partners or associates appear, so the disqualification reaches the firm.

Q: Is there a way to avoid the lawyer losing the client?

A: Yes. The committee said the usual solution is for the judge to disqualify himself, except where that would waste judicial resources, the judge is the only one available, or the lawyer was retained to force recusal.

Background and rules framework

The opinion rested on Canon 9 and EC 9-6 (appearance of impropriety) of the Code of Professional Responsibility, read alongside the Code of Judicial Conduct's recusal provisions (CJC Canon 3(C)(1), (D)), with DR 7-110(A) and EC 7-34 addressed only to confirm no thing of value was given. The closest current Model Rule analogues are Rule 1.7 (personal-interest conflicts) and Rule 1.10 (imputation within a firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (personal-interest conflicts)
• MR 1.10 (imputed disqualification)
• NY Canon 9, EC 7-34, EC 9-6, DR 7-110(A), DR 9-101(C)
• Code of Judicial Conduct Canon 2(B), 3(C)(1), 3(D), 7

Other opinions cited:

• N.Y. State 384 (1975) and N.Y. City 893 (1978): judge should recuse rather than force the lawyer out
• N.Y. State 502 (1979): firm screening for a former assistant DA, distinguished

See also

• NY State Bar Op. 514: Guardian ad litem later serving as the conservator's counsel
• NY State Bar Op. 513: A part-time prosecutor whose partner enters partisan politics

Source

• Landing page: https://nysba.org/opinion-511/