Can a former judge accept employment as a lawyer in a child-custody matter whose merits he decided while sitting as a judge?

Plain-English summary

While serving as Judge of the Superior Court, the inquirer had entered a decree annulling the marriage of "A" and "B," unaware that "B" was pregnant; she later gave birth and then died. After the child's maternal grandmother took custody, "A" sued in the same court for custody, and the judge, finding "A" of exemplary habits and able to support the child, signed an uncontested order granting "A" custody. Later the grandmother brought a habeas corpus proceeding in District Court, which allowed her support money and divided custody time between "A" and the grandmother. Dissatisfied, the grandmother wished to employ the now-former judge to bring a Superior Court proceeding for exclusive custody. He asked whether he could accept.

The Board answered that he may not. It quoted the first paragraph of Rule 38: "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." Because, as Superior Court judge, he had acted upon the merits of the custody controversy on which his employment was now sought, the Board found the employment clearly interdicted by the rule.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 38, belongs to that superseded canon-era code, though the bar on a former judge later litigating a matter he decided persists in the modern rules on former judges and other third-party neutrals. 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 Treat this page as historical context, not current guidance.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 take on a case he ruled on from the bench?

A: Not under this opinion, where he had decided the merits. The Board held Rule 38 bars accepting employment as an advocate in any matter on the merits of which the lawyer previously acted in a judicial capacity.

Q: Did it matter that the later custody dispute was a new proceeding?

A: No. The opinion treated the custody controversy as the same matter the judge had acted on, so representing the grandmother in seeking exclusive custody fell within Rule 38's bar.

Background and rules framework

The opinion applied Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, which barred a lawyer from acting as an advocate in a matter upon the merits of which he had previously acted in a judicial capacity, drawn from the ABA Canons of Professional Ethics. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 38 (1929 Oklahoma Rules of Professional Conduct): 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.

See also

• Okla. Bar Ethics Op. 82: Former judge as advocate "on the merits"

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-101/

Original opinion text

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

Adopted January 24, 1936

The Board of Governors is in receipt of the following request for an opinion:

"While I was Judge of the Superior Court, "A" brought suit in that court to annul marriage of himself and "B". I entered a decree annulling the marriage.

At that time, unknown to the court, "B" was pregnant, and afterwards gave birth to a child.

Soon after the annulment the Mother died and the Grandmother on the Mother's side took custody of the child. "A" then brought suit in my court to obtain custody of the child. The case was not contested and, it appearing that "A" was a man of exemplary habits and able to support the child, I signed the order granting to "A" the custody of the child.

Recently the Grandmother brought a habeas corpus proceeding in the District Court which court, by order, allowed support money to her and divided the time of the custody of the child between "A" and the Grandmother. The Grandmother is dissatisfied with this order and desires to employ me to institute a proceeding in the Superior Court, having for its purpose the awarding of the exclusive custody of the child to her. May I accept this employment without violating any rule of professional conduct?"

In response:

You may not. The first paragraph of Rule 38 of the Rules of Professional Conduct reads as follows:

"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."

As Judge of the Superior Court you acted upon the merits of a controversy with reference to the custody of the child, regarding which it is now sought to employ you. Such employment is clearly interdicted by the rule referred to.