Can a former judge be retained in a case that was pending before him if he never ruled on its merits?

Plain-English summary

A former district judge described a suit that had been pending in his court. The defendant had filed a motion to make the petition more definite and certain, and the case was placed on the motion and demurrer docket. When the case was called, the plaintiff's attorney said he wished to file an amended petition; the defendant's attorney agreed that, because no answer had been filed, the plaintiff had the right to do so. The judge made no order; the clerk simply minuted that the plaintiff had twenty days to file an amended petition. No one stated the nature of the suit or the facts behind it. After the judge's term expired, a party sought to retain him in the case, and he asked whether accepting the retainer would appear to violate Rule 38, which bars a lawyer from acting as an advocate in a matter on the merits of which he previously acted in a judicial capacity.

The Board concluded that accepting the employment would violate neither the letter nor the spirit of Rule 38. The former judge had not acted upon any matter in the cause, and it was obvious that he had not passed upon the merits of the case or affected any substantial rights of the parties. The Board cross-referenced Advisory Opinion No. 82.

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 former-judge restriction discussed here survives in modern form as the rule on lawyers who formerly served as judges or other adjudicative officers, but the rule text, its consent provisions, and its scope have changed. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Does any prior contact with a case as a judge bar a lawyer from later taking it?

A: No. The opinion turned on whether the judge acted "upon the merits." Because he only allowed a routine amended-petition filing that both parties agreed to, and never passed on the merits or substantial rights, Rule 38 did not bar him.

Q: What kind of judicial action triggers Rule 38?

A: Acting "as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity." The Board read this to require passing on the merits or substantial rights of the parties, not merely presiding over a procedural docket call.

Background and rules framework

The opinion interpreted Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, which provided that 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. 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.

Other opinions cited:

• Oklahoma Advisory Opinion No. 82 (Adv. Op. p. 149): former judge as advocate on the merits.

See also

• Okla. Bar Ethics Op. 82: Former judge as advocate on the merits
• Okla. Bar Ethics Op. 101: Former judge cannot litigate a matter he decided
• Okla. Bar Ethics Op. 27: Former judge or official representing in a prior matter

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-116/

Original opinion text

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

Adopted September 25, 1936

A former District Judge states that while he was on the bench a certain suit was brought in his court; that the defendant filed a motion to make the petition more definite and certain; that the case was placed on the motion and demurrer docket by the clerk; that when the case was called before him the plaintiff's attorney stated that he desired to file an amended petition, whereupon the defendant's attorney stated that, since no answer had been filed, the plaintiff had the right, under the law, to file an amended petition; that this was agreed to by both parties; that no order was made by the court; that the clerk made a minute to the effect that the plaintiff was allowed twenty days within which to file an amended petition; that no statement was made as to the nature of the suit or the facts upon which it was based; and that, after the term of the Judge had expired, one of the parties sought to retain him in the case.

The former District Judge inquires whether or not, should he accept the retainer under the circumstances related, there would be any appearance of a violation of Rule 38 of the Rules of Professional Conduct, which provides:

"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."

It is the opinion of the Board that the former District Judge in accepting the employment referred to, would violate neither the letter nor the spirit of the rule referred to. He did not act upon any matter in the cause, and it is obvious that he did not pass upon the merits of the case which affected any of the substantial rights of the parties. See, in this connection, Advisory Opinion Number 82 (Adv. Op. p. 149).