Can a lawyer who sometimes serves as a pro tem judge, and the lawyer's partner, keep representing clients before other judges of that same court?

Plain-English summary

Lawyer A and Lawyer B are partners. Lawyer B is occasionally asked to serve as a pro tem judge or hearing officer. Both partners want to keep representing clients in matters pending before other judges or hearing officers of the same court or body for which Lawyer B sits pro tem. The opinion asks whether they may do so and what disclosure or consent requirements apply.

The opinion concludes yes, qualified. It notes Oregon RPC 3.5(a) (no seeking to influence an official by means prohibited by law) but finds no indication such conduct is intended. It finds no particular reason to expect a violation of RPC 1.12(a) (a lawyer may not represent anyone in a matter in which the lawyer participated personally and substantially as a judge or adjudicative officer, absent consent) or RPC 1.11(d) (limits on a lawyer currently serving as a public officer). The partners may proceed if they do not violate these rules.

On disclosure and consent, the opinion applies RPC 1.7(a)(2): a current conflict exists if there is a significant risk the representation will be materially limited by the lawyer's responsibilities to another client, former client, third person, or the lawyer's own interest. On these facts, the opinion finds no reason to believe any client's representation will be materially limited by Lawyer B's pro tem obligations, so no special disclosure to or consent from clients is necessary.

In practice

Under the Oregon rules as they stood at the time of the opinion, occasional pro tem judicial service did not, by itself, bar a lawyer or the lawyer's partner from appearing before other judges of the same court. Per the opinion, the analysis turns on RPC 1.12(a) (no handling a matter the lawyer judged), RPC 1.11(d), and the RPC 1.7(a)(2) material-limitation test; where none is implicated, no special disclosure or consent is required.

Common questions

Q: Can a lawyer who sits pro tem still appear before that court's other judges?

A: Yes, qualified. The opinion concludes the lawyer and the lawyer's partner may do so where there is no significant risk that the pro tem service materially limits the representation.

Q: Does the lawyer need client consent to keep practicing before the court?

A: Not on these facts. The opinion concludes no special disclosure or consent is required under RPC 1.7(a)(2) where no material limitation is present.

Q: What is the lawyer barred from doing?

A: The opinion identifies RPC 1.12(a) (no representing anyone in a matter the lawyer handled as a judge, absent consent) and RPC 3.5(a) and 1.11(d) (no improper influence on the tribunal).

Background and rules framework

The opinion interprets Oregon RPC 1.12(a) (former adjudicative officer), RPC 1.11(d) (lawyer serving as a public officer), RPC 1.7(a)(2) (material-limitation conflicts), and RPC 3.5(a) (improper influence). These track Model Rules 1.11, 1.12, 1.7, and 3.5.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.12(a) / Model Rule 1.12 (former judge or adjudicative officer)
• Oregon RPC 1.11(d) / Model Rule 1.11 (current public officer or employee)
• Oregon RPC 1.7(a)(2) / Model Rule 1.7 (material-limitation conflicts)
• Oregon RPC 3.5(a) / Model Rule 3.5 (improper influence on officials)

Cases:

• In re Zafiratos, 259 Or 276, 486 P2d 550 (1971)
• In re Lemery, 7 DB Rptr 125 (1993)

See also

• OSB Ethics Op. 2005-36: Lawyer Campaigning for Judicial Office
• OSB Ethics Op. 2005-14: Deputy DA Representing Private Parties

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-39.pdf