Can a new judge accept outstanding fees from a former law firm, and must the judge recuse from cases where that firm appears?

Plain-English summary

A newly elected or appointed judge winding up a former law practice often has financial ties to the former firm. The Board addressed five questions about accepting fees and the resulting disqualification duties.

On accepting fees (Question 1), the Board concluded the Code of Judicial Conduct does not prevent a judge from accepting outstanding fees earned before taking office. A judge may accept payments reflecting a flat fee or hours billed for legal services performed, and contingent fees once the contingency occurs, on a quantum meruit basis for services rendered before leaving (citing Reid, Johnson, Downes, Andrachik & Webster v. Lansberry). Any such income must be reported on the judge's annual financial disclosure statement under Jud.Cond.R. 3.15 and R.C. §102.02.

On hearing the former firm's cases while receiving payments (Questions 2 and 3), the Board concluded Jud.Cond.R. 2.11(A) restricts the judge from hearing cases where lawyers of the former firm are counsel, because the continued receipt of fees would cause a reasonable, objective observer to question the judge's impartiality. Waiver of disqualification will usually not be appropriate while payments continue, and is never permitted where personal bias exists (Jud.Cond.R. 2.11(C)). Payments characterized as retirement benefits are not specifically prohibited, but because of the recusal requirement, a retirement agreement should not provide income in perpetuity; a judge should divest such interests as soon as practicable (Jud.Cond.R. 3.11).

On a time period for recusing from a former partner's cases (Question 4), the Board found no specific period is mandated. Drawing on a line of disqualification decisions by the Chief Justice, the Board said the analysis depends on personal bias, whether impartiality could reasonably be questioned, the size of the former firm, and the time elapsed. A period of six months to one year may be sufficient, though a judge may choose longer.

On continuing in the partnership (Question 5), the Board concluded a judge must cease the practice of law on taking office (Jud.Cond.R. 3.10) and may not remain in a firm's partnership solely to receive payments. The Board also noted a firm may not keep a public official's name in the firm name after the partner takes office (Prof.Cond.R. 7.5(c)).

In practice

Under this opinion, a judge transitioning from practice may accept fees earned before taking office (reported on the annual financial disclosure statement), but must recuse under Jud.Cond.R. 2.11(A) from cases in which the former firm appears as counsel while the judge is receiving or anticipating payments from it. Per the opinion, retirement-type payments are permissible but should not run in perpetuity, and the judge should divest as soon as practicable. The opinion holds a judge may not continue in the firm's partnership to receive payments and may not let the firm retain the judge's name in the firm name.

Common questions

Q: Can a new judge collect fees the former firm still owes for work done before the judge took office?

A: The opinion concludes yes. The Code of Judicial Conduct does not bar accepting outstanding fees for legal services performed before taking office, including contingent fees on a quantum meruit basis once the contingency occurs; the income must be reported under Jud.Cond.R. 3.15.

Q: Must the judge recuse from cases in which the former firm appears?

A: Per the opinion, yes, while the judge is receiving or anticipating fees or other payments from the firm, because Jud.Cond.R. 2.11(A) requires recusal when impartiality might reasonably be questioned.

Q: How long must a judge avoid hearing a former law partner's cases?

A: The opinion states no fixed period is mandated; the judge should consider personal bias, the appearance of partiality, the size of the former firm, and the time elapsed. The Board suggested six months to one year may be sufficient, though a judge may opt for longer.

Q: Can the judge stay in the firm's partnership just to keep receiving payments?

A: The opinion concludes no. A judge must cease practicing law on taking office (Jud.Cond.R. 3.10) and may not continue in the partnership for the purpose of receiving payments.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 1.2 (confidence in the judiciary), 2.11 (disqualification), 3.10 (practice of law), 3.11 (financial activities), and 3.15 (financial disclosure reporting). It also applies Prof.Cond.R. 7.5 (firm names; Model Rule 7.5) to the firm-name question, and references the Ohio Ethics Law (R.C. §102.02). The opinion withdraws Adv. Op. 95-03 and Adv. Op. 2007-02.

Citations and references

Rules of Judicial and Professional Conduct:

• Ohio Jud.Cond.R. 1.2, 2.11(A), (C), 3.10, 3.11, 3.15
• Ohio Prof.Cond.R. 7.5(c) (Model Rule 7.5)

Statutes:

• R.C. §102.02 (financial disclosure statement)

Cases:

• Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570 (1994), quantum meruit basis for former counsel's fee
• In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, appearance of impropriety standard
• In re Disqualification of Ward, 100 Ohio St.3d 1211, 2002-Ohio-7467; In re Disqualification of Cross, 74 Ohio St.3d 1228, 657 N.E.2d 1338 (1991); In re Disqualification of Vercillo, 137 Ohio St.3d 1237, 2013-Ohio-5763, elapsed time since prior relationship

Other opinions cited:

• ABA Informal Op. 87-2524: prior association does not by itself disqualify
• Ohio BPC Adv. Op. 89-17: judge's interest in former practice and appearance of impropriety
• Ohio BPC Adv. Op. 95-03 and 2007-02 (withdrawn by this opinion)

See also

• Ohio BPC Op. 1989-017: Judge Divesting Former Law Firm Shares
• Ohio BPC Op. 1987-048: Judge's Name on Former Law Firm Letterhead
• Ohio BPC Op. 1987-023: Recusal When an Election Opponent Represents a Party

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2021/08/Adv.-Op.-2021-06-Final.pdf

Original opinion text

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

OPINION 2021-06
Issued August 6, 2021
Withdraws Adv. Op. 95-03 and Adv. Op. 2007-02

Judicial Disqualification When Receiving Fees or Other Payments From Former Law
Firm

SYLLABUS: A judge may accept fees or other payments from his or her former law firm
for fees earned for performing legal services before the judge assumed public office. A
judge must recuse himself or herself from cases in which lawyers from his or her former
law firm appear as counsel and the judge is receiving or anticipates receiving fees or other
payments from the firm. A judge should consider the nature of the prior professional
relationship, the size of the judge’s former law firm, and the time interval since the
relationship concluded, when determining an appropriate period of time before hearing
a case involving a former partner. A judge may not continue to participate in a law firm’s
partnership for purposes of receiving fees or other payments from the firm.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                 OPINION 2021-06
                               Issued August 6, 2021
                    Withdraws Adv. Op. 95-03 and Adv. Op. 2007-02

Judicial Disqualification When Receiving Fees or Other Payments From Former Law
Firm

SYLLABUS: A judge may accept fees or other payments from his or her former law firm
for fees earned for performing legal services before the judge assumed public office. A
judge must recuse himself or herself from cases in which lawyers from his or her former
law firm appear as counsel and the judge is receiving or anticipates receiving fees or other
payments from the firm. A judge should consider the nature of the prior professional
relationship, the size of the judge’s former law firm, and the time interval since the
relationship concluded, when determining an appropriate period of time before hearing
a case involving a former partner. A judge may not continue to participate in a law firm’s
partnership for purposes of receiving fees or other payments from the firm.

QUESTIONS PRESENTED:

   1).        Is it proper for a new judge to accept fees from his or her former law firm

for legal services provided by the judge prior to taking office?

   2).        May a newly elected judge hear cases advocated by lawyers from the

former firm while the judge is accepting fees or other payments, from the firm?

   3).        Is it proper for a new judge to receive retirement benefits from a former law

firm pursuant to a partnership agreement through which the judge is paid a percentage
of the legal fees earned by other attorneys in the firm for providing legal services to the
Op. 2021-06 2

judge’s former clients while the judge was with the law firm and during an agreed upon
number of years following the judge’s departure from the law firm.

  4).     Is there a specific period of time after a judge leaves a law firm partnership

in which a judge would be prohibited from hearing cases advocated by a former law
partner?

  5).     May law firm partners and a newly elected judge continue their law

partnership for the sole purpose of receiving fees or other payments from the firm?

APPLICABLE RULES: Jud.Cond.R. 1.2, 2.11, 3.10, 3.11, 3.15 , Prof.Cond.R. 7.5

OPINION:

Question 1

  When a new judge assumes office, the winding up of his or her former law practice

may involve a degree of financial entanglement with the judge’s former law firm that
implicates the judge’s obligations under the Code of Judicial Conduct. As often the case,
the judge may have earned legal fees prior taking office, but the fees have not been
collected or received by the former law firm. The Code of Judicial Conduct prohibits a
judge from practicing law [See Jud.Cond.R. 3.10] but does not prevent a judge from
accepting outstanding fees from his or her former law firm after taking office. A judge
transitioning from private practice is entitled to accept payments reflecting a flat fee or
the number of hours billed at an agreed upon hourly rate for legal services performed.
Contingent fees may also be paid to a judge once the contingency occurs, based upon
quantum meruit for services performed prior to leaving the former law firm. See Reid,
Johnson, Downes, Andrachik & Webster v. Lansberry (1994), 68 Ohio St.3d 570 (quantum
meruit proper basis for determining fee for services rendered by former law firm counsel).
Any income received by a judge from a former law firm must be reported by the judge
on his or her annual financial disclosure statement. Jud.Cond.R. 3.15, R.C. §102.02.

Questions 2 and 3

  Jud.Cond.R. 2.11(A) requires a judge to recuse himself or herself from cases when

“the judge’s impartiality might be reasonably questioned.” When a judge anticipates the
receipt of fees or other payments from his or her former firm, the application of
Op. 2021-06 3

Jud.Cond.R. 2.11(A) restricts the judge’s ability to hear cases when the lawyers of the
former firm are counsel for a party. The continued receipt by a judge of fees from a former
firm would cause a reasonable and objective observer to question the judge’s impartiality
in a case. See In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359 (a judge’s
participation in a case presents an appearance of impropriety if “a reasonable and
objective observer would harbor serious doubts about the judge’s impartiality.”). The
judge’s recusal in such a scenario avoids the appearance of impropriety that would occur
if a law firm with existing financial ties to a judge appears before the judge.

   Disqualification is additionally required when the judge “has a personal bias or

prejudice concerning a party or a party’s lawyer.” Jud.Cond.R. 2.11(A)(1). Waiver of
disqualification, in most circumstances, will not be appropriate while a judge is
receiving fees or other payments from a former law firm due to the potential for
personal bias toward the lawyers in a firm with which the judge still maintains financial
ties. Waiver of disqualification is never permitted when personal bias or prejudice of
the judge exists. Jud.Cond.R. 2.11(C). Consequently, a judge should carefully consider
whether he or she harbors any bias toward the lawyers of the former law firm
because of the anticipated or continued receipt of fees or other payments before
employing the waiver of disqualification process in Jud.Cond.R. 2.11(C).

   A type of payment a judge receives after assuming the bench may be

characterized by the law firm as retirement benefits. In the question presented, the
judge would receive a percentage of fees earned on legal services provided by other
lawyers to the judge’s former clients during an agreed upon period of time after
retirement. Neither the Code of Judicial Conduct nor the Rules of Professional
Conduct specifically prohibits an agreement under these terms. However, due to the
requirement that a judge recuse from cases under such circumstances, any retirement
agreement should not provide for the payment of retirement income in perpetuity.
As soon as practicable, a judge should divest himself or herself from financial
interests that would require frequent disqualification. Jud.Cond.R. 3.11.
Question 4

   Judicial recusal from a case in which a former law partner appears as counsel is

not expressly mandated by the Code of Judicial Conduct. See also ABA Inf. Op. 87-2524
(“a judge is not disqualified from trials in which the judge’s former associate participates
Op. 2021-06 4

as counsel solely as a result of their prior association.”). Nor does the Code establish a
specific period of time for a judge to recuse from cases advocated by a judge’s former law
partner. However, the Chief Justice has reviewed the same question in a line of
disqualification cases examining prior professional relationships between judges and
lawyers and has held that the prior relationship is not grounds for disqualification when
it ended some years ago. In re Disqualification of Ward, 100 Ohio St.3d 1211, 2002-Ohio-
7467 (no disqualification when professional relationship ended seven years before the
affidavit was filed). See also In re Disqualification of Cross (1991), 74 Ohio St.3d 1228, 657
N.E.2d 1338 (relationship as law partners ended six years before the affidavit was filed);
In re Disqualification of Vercillo, 137 Ohio St.3d 1237, 2013-Ohio-5763 (prior professional
relationship ended 20 years before hearing matter involving former partner).

   A new judge should carefully consider the appropriate amount of time before

hearing a case involving a former partner as counsel. A decision should be made by a
judge in light of the existence of any personal bias or prejudice, whether his or her
impartiality could be questioned by a reasonable and objective observer, and the judge’s
obligation to maintain public confidence in the judiciary. Jud.Cond.R. 1.2. In general,
questions concerning impartiality may depend on the size of the judge’s former firm and
the nature of the former partnership. Recusal may be more necessary and extend for a
longer period of time where the law firm is small and the partnership was close, as
compared to a situation in which the judge practiced in a large firm with multiple offices
and practice groups and had limited contact with many of the firm’s partners. Another
factor is the time that has elapsed since the termination of the professional relationship
between the judge and a former partner. For example, a period of six months to one year
may be a sufficient and appropriate period of time before a judge hears cases involving a
former partner as counsel. However, a judge may opt to refrain from hearing cases
involving his former firm or partners for a longer period of time to place some temporal
distance from the prior relationship and avoid any reasonable appearance of impropriety.

Question 5

   As previously noted, a newly elected or appointed judge is required to cease the

practice of law upon taking office. Jud.Cond.R. 3.10. Consequently, a judge may not
continue to participate in a law firm’s partnership for purpose of receiving fees or other
payments from the firm. The Board has previously opined that a judge who maintains
Op. 2021-06 5

any interest in their former law practice, no matter how it is structured, creates the
appearance of impropriety. Adv. Op. 89-17. Additionally, a law firm partnership may
not include the name of a public official in the firm’s name after the former partner
assumes public office. Prof.Cond.R. 7.5(c).