I used to be the probate judge in my town but wasn't reappointed. Can I now represent clients in matters before that same probate court?

Plain-English summary

The inquiring attorney had served as the probate judge in a municipality but was not reappointed to the position, and now sought to represent clients before the same municipality's probate court.

The panel applied Rule 1.12 (Former Judge or Arbitrator) in full. Rule 1.12(a) bars a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, unless all parties to the proceeding consent after consultation. The panel noted the Comment to Rule 1.12 explains that "participated personally and substantially as a judge" means more than exercising "remote or incidental administrative responsibility that did not affect the merits." Applying this, the panel concluded the former probate judge may represent clients in matters before the same probate court, provided the attorney does not represent anyone in connection with a matter the attorney handled personally and substantially while serving as judge; such a representation may still be undertaken with the informed consent of all parties to the proceeding.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer who formerly served as a municipal probate judge is not barred from practicing generally before that same court, but Rule 1.12(a) bars the lawyer from taking on any matter the lawyer personally and substantially handled while sitting as judge, unless every party to that proceeding consents after consultation. Rule 1.12(a)'s bar does not reach matters where the judge's involvement was only remote or incidental administrative responsibility that did not affect the merits.

Common questions

Q: Can a former probate judge go back to practicing law before the same probate court?

A: Yes, according to this opinion, subject to Rule 1.12(a)'s limit on matters the lawyer personally and substantially handled while serving as judge.

Q: What if I want to represent a client in a specific case I ruled on as judge?

A: The panel held that representation is barred under Rule 1.12(a) unless all parties to that proceeding consent after consultation.

Q: Does routine administrative involvement in a case as judge trigger the bar?

A: No. The panel quoted the Comment to Rule 1.12, which explains that "participated personally and substantially as a judge" means more than remote or incidental administrative responsibility that did not affect the merits.

Background and rules framework

The opinion applies Rule 1.12(a) (Former Judge or Arbitrator), the Model Rule counterpart of the same number, quoted in full, which bars a lawyer from representing anyone in connection with a matter the lawyer participated in personally and substantially as a judge, other adjudicative officer, arbitrator, or law clerk to such a person, absent consent of all parties after consultation. The panel also cited the rule's screening provision in Rule 1.12(c) for imputed disqualification of the lawyer's firm, though that provision was not directly at issue on these facts.

Citations and references

Rules of Professional Conduct:

• MR 1.12(a), (c) (Former Judge or Arbitrator) / RI Rule 1.12(a), (c)

See also

• ISBA Ethics Op. 90-04: Representing a Party in a Matter in Which the Lawyer Formerly Acted as Judge
• Arizona Ethics Op. 89-01: Former Judge, Solicitation of Employment
• Colorado Bar Op. 45: Part-Time Judge Representing Clients

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202007-01.pdf

Original opinion text

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

Rhode Island Supreme Court Ethics Advisory Panel Opinion No. 2007-01 Request No. 925
Issued February 8, 2007

Facts

The inquiring attorney has served as the probate judge in a municipality but was not re-appointed to the position. The inquiring attorney now seeks to represent clients before the municipality's probate court.

Issue Presented

May an attorney who was the former probate judge in a municipality represent clients before the same probate court?

Opinion

An attorney who was the former probate judge in a municipality may represent clients before the municipality's probate court provided that he/she does not represent anyone in connection with a matter in which he/she participated personally and substantially as the probate judge.

Reasoning

Rule 1.12 of the Rules of Professional Conduct entitled "Former Judge or Arbitrator" is applicable to this inquiry. Rule 1.12 states:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator. A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator.
2007-01
Page 2 of 2

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

The Comment to Rule 1.12 notes that "participated personally and substantially as a judge" means more than exercising "remote or incidental administrative responsibility that did not affect the merits." Comment 1.12.

The Panel concludes that the inquiring attorney, a former probate judge in a municipality, may represent clients in matters before the same probate court provided that he/she does not represent anyone in connection with a matter in which he/she participated personally and substantially as the probate judge. A prohibited representation under this rule may be undertaken with the consent, after consultation, of all parties to a proceeding.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have bearing on the issues raised by this inquiry.