I'm a former judge back in private practice. May I represent clients in matters before the court where I served as a judge?

Plain-English summary

The inquiring attorney is a former judge who resigned and has resumed the practice of law. The lawyer asked whether he or she may represent clients in matters before the court on which he or she served as a judge.

The panel applied Rule 1.12, which governs former judges, arbitrators, mediators, and other third-party neutrals. 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 give informed consent confirmed in writing. The panel explained that Rule 1.12 applies only to the same matter in which the lawyer participated as a judge, making it less restrictive than Rule 1.9's former-client rule, which reaches substantially related matters. Participation on the merits and participation in settlement discussions count as personal and substantial, while, under Comment [1], remote or incidental administrative responsibility that did not affect the merits does not.

The panel also noted that Rule 1.12 does not itself impose a one-year waiting period before a former judge may practice before the court served, but that other law, namely the State Ethics Code, requires such a waiting period. The panel concluded the former judge may represent clients before the court on which he or she served, provided the lawyer does not take on matters in which he or she participated personally and substantially as a judge; a prohibited matter may be undertaken only with the informed written consent of all parties. The panel expressly limited its guidance to the Rules of Professional Conduct and not the State Ethics Code or other law.

In practice

Under this opinion, a former judge who returns to practice may appear before the court on which he or she served. The bar under Rule 1.12(a) is matter-specific: it reaches only the same matter in which the lawyer participated personally and substantially as a judge, which the panel described as narrower than Rule 1.9's substantial-relationship test. The panel held that a prohibited matter may still be undertaken with the informed written consent of all parties, and it noted separately that the State Ethics Code, which is outside its jurisdiction, may impose a waiting period the Rules of Professional Conduct do not.

Common questions

Q: Can a former judge appear before the same court after returning to practice?

A: Yes. The panel concluded a former judge may represent clients before the court on which he or she served, subject to the matter-specific limit in Rule 1.12(a).

Q: Which matters are off-limits to a former judge?

A: Matters in which the lawyer participated personally and substantially as a judge. The panel noted that participation on the merits and in settlement discussions counts, while remote or incidental administrative responsibility that did not affect the merits does not.

Q: Can the former judge still take a prohibited matter?

A: Only with informed consent, confirmed in writing, of all parties to the proceeding, per Rule 1.12(a) and (d).

Q: Is there a waiting period before a former judge can practice before the former court?

A: Rule 1.12 imposes none, but the panel noted that other law, namely the State Ethics Code, requires a waiting period. The panel limited its guidance to the Rules of Professional Conduct.

Background and rules framework

The opinion applies Rule 1.12 (Model Rule 1.12, former judge, arbitrator, mediator, or other third-party neutral). Rule 1.12(a) prohibits a lawyer from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, absent informed written consent of all parties, and Rule 1.12(c) allows a firm to continue where the disqualified lawyer is timely screened and apportioned no fee, with written notice to the parties and tribunal. The panel contrasted Rule 1.12 with Rule 1.9, the former-client rule, which reaches substantially related matters and so is broader than Rule 1.12's same-matter limit. The panel drew on Comment [1] to Rule 1.12 and its prior Opinion 2007-01.

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral; Comment [1])
• MR 1.9 (duties to former clients, referenced by contrast)
• RI RPC 1.12

Statutes:

• Rhode Island State Ethics Code (referenced as imposing a waiting period outside the Rules; not quoted).

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 2007-01 (2007): meaning of personal and substantial participation for a former judge.
• ABA Annotated Model Rules of Professional Conduct, at 222 (8th ed. 2015).

See also

• RI EAP Op. 2007-01: Former Probate Judge Representing Clients in the Municipality
• RI EAP Op. 2017-05: No Conflict Adverse to an Affiliate of a Former Firm's Client

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%202018-04.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2018-04
Issued December 13, 2018

FACTS

The inquiring attorney is a former judge who resigned and who has resumed the practice of law. He/she seeks the Panel's guidance regarding representing clients in matters that are before the court in which he/she served as a judge.

ISSUE PRESENTED

May the inquiring attorney, who was a former judge, represent clients in matters before the court on which he/she served as a judge?

OPINION

The inquiring attorney, a former judge, may represent clients in matters before the court on which he/she served as a judge, provided that the attorney does not represent clients in matters in which he/she participated personally and substantially as a judge.

REASONING

Rule 1.12 of the Rules of Professional Conduct entitled "Former judge, arbitrator, mediator or other third-party neutral" is applicable to this inquiry. Rule 1.12 states as follows:

(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 or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

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

(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 timely 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 parties and any appropriate tribunal to enable them 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.

Rule 1.12 only applies to representation in connection with the same matter in which a lawyer participated as a judge. ABA Annotated Model Rules of Professional Conduct, at 222 (8th ed. 2015). This is less restrictive than Rule 1.9 on former-client conflicts, which prohibits a lawyer, absent consent, from representing a client whose interests are adverse to a former client if the matters are the same or substantially related. Id. Participation on the merits of a case and participation in settlement discussions are considered personal and substantial. Id. While administrative responsibilities may also trigger Rule 1.12, Comment [1] to Rule 1.12 clarifies that "participated personally and substantially as a judge" means more than exercising "remote or incidental administrative responsibility that did not affect the merits." See R.I. Ethics Advisory Panel Op., 2007-01 (2007).

The Panel notes that Rule 1.12 does not impose a one-year waiting period before a former judge may practice before the court on which he/she served. Other law, however, namely the State Ethics Code, requires such a waiting period.

The Panel concludes that the inquiring attorney, a former judge who resigned, may represent clients in matters before the court on which he/she served as a judge, provided that the inquiring attorney does not represent clients in connection with matters in which he/she participated personally and substantially as a judge. A prohibited representation under Rule 1.12 may be undertaken with the informed consent, confirmed in writing, of all parties to the 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.