When is a former judge barred from later serving as an advocate because he previously acted on the merits of the matter in a judicial capacity?

Plain-English summary

The inquiry quoted Rule 38, which provided in part 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," and asked what counts as having acted on the merits of a matter in a judicial capacity.

The Board adopted as correct the interpretation in Opinion No. 49 of the ABA Committee on Professional Ethics and Grievances, which stated that a lawyer who previously occupied a judicial position should refrain from accepting employment in any matter involving the same facts as a specific question he acted upon judicially, and likewise from any employment that might reasonably appear to involve the same facts, so that the profession avoids not only evil but the appearance of evil.

As to the meaning of "the merits," the Board observed that the phrase has a broad meaning well understood by the profession, that no comprehensive definition is possible, and that each case must stand on its peculiar facts. Generally speaking, the Board said, a judge passes upon the merits of a matter when his decision affects any of the substantial rights of the parties, as opposed to mere matters of procedure.

Currency note

This opinion was issued in 1934, 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 The rule cited here, Rule 38, belongs to that superseded canon-era code, though its principle survives in the modern rule barring a former judge from later representing a party in a matter in which the lawyer participated personally and substantially as a judge. 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 Treat this page as historical context, not current guidance.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: When is a former judge barred from later acting as an advocate?

A: The opinion held a former judge must refrain from employment in any matter involving the same facts he acted upon judicially, and from any employment that might reasonably appear to involve those facts.

Q: What does it mean to have acted "on the merits"?

A: The opinion said, generally, that a judge passes on the merits when his decision affects any of the substantial rights of the parties, as opposed to mere matters of procedure, with each case standing on its own facts.

Background and rules framework

The opinion applied Rule 38 of the canon-era Oklahoma Rules of Professional Conduct, barring a lawyer from accepting employment as an advocate in a matter upon whose merits he previously acted in a judicial capacity, drawn from the ABA Canons of Professional Ethics, and adopted the interpretation of ABA Opinion No. 49. The opinion 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 previously acted in a judicial capacity.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances Opinion No. 49: a former judge should refrain from employment involving the same facts he acted upon judicially, or that might reasonably appear to involve them.

See also

• Okla. Bar Ethics Op. 100: Ex-judge accepting employment on an administrator appointment
• Okla. Bar Ethics Op. 77: Firm name after a partner takes public office

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-82/

Original opinion text

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

Adopted December 27, 1934

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

"Rule No. 38 of the 'Rules of Professional Conduct' reads in part 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.' I would appreciate an opinion advising of just what would be considered as having acted on the merits of a matter in a judicial capacity."

In Opinion No. 49 of the Committee on Professional Ethics and Grievances of the American Bar Association, it was said:

"A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts. If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil."

The interpretation of the rule in the foregoing opinion is accepted as correct by the Board of Governors.

The phrase "the merits" of a case has a broad meaning well understood by the profession. Like other phrases used in the law, it would be quite impossible to prepare a comprehensive definition embracing the whole subject. Each case must stand upon its peculiar facts. Generally speaking, a judge passes upon the merits of a matter when his decision affects any of the substantial rights of the parties, as opposed to mere matters of procedure, etc.