Can a lawyer who sat as a Special Juvenile Judge and personally assessed court costs later bring a class action to recover those same costs as wrongfully assessed?

Currency note

This opinion was issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

An attorney who had sat as Special Juvenile Judge on limited occasions, and in that role had assessed court costs later alleged to be wrongful, asked about bringing a class action to recover the wrongfully assessed costs.

The opinion applied Disciplinary Rule 9-101(A), which prohibits an attorney from accepting employment in any matter on whose merits the attorney has acted in a judicial capacity, and noted that ABA Formal Ethics Opinion 49 extended that prohibition to cases involving similar facts. It also drew on a line of ABA opinions concerning public officers who represent private interests adverse to the public body they represent, which held that an attorney in public office should avoid conduct that might lead a layperson to conclude the attorney used the public position to further personal or professional interests. It cited the Board's own Formal Ethics Opinion 81-F-15, which had held that accepting a quasi-judicial position to conduct hearings on state strip mining violations barred the lawyer and the lawyer's firm from representing individuals charged with similar federal violations, because the public and private interests were inconsistent and the practice would diminish public confidence in the administration of justice.

The opinion concluded that an attorney who acted in a judicial capacity, assessed the court costs at issue, and then brings a class action to recover those same costs violates the axiomatic norm of conduct expected of attorneys in their relationship with the public, and that Canon 9's requirement to avoid even the appearance of impropriety should be strictly construed in such instances, with no practice permitted that invites doubt or distrust in the integrity of the law, the courts, and the administration of justice.

Common questions

Q: Can a former special judge sue to recover court costs he assessed while on the bench?

A: No. The opinion holds that doing so "constitutes a violation of the axiomatic norm of conduct expected of attorneys in their relationship with the public," applying DR 9-101(A)'s bar on accepting employment in a matter on whose merits the lawyer acted judicially.

Q: Does it matter that the attorney served as judge only on limited occasions?

A: No. The opinion addresses the attorney directly as having "acted in a judicial capacity on limited occasions and assessed court costs," and still finds the subsequent class action improper.

Background and rules framework

The opinion applied Disciplinary Rule 9-101(A) of the Tennessee Code of Professional Responsibility, together with Canon 9's appearance-of-impropriety principle, and drew on ABA Formal Ethics Opinion 49 (extending the DR 9-101(A) bar to similar-fact cases) and the Board's own Formal Ethics Opinion 81-F-15 (barring a firm from representing clients with interests adverse to a quasi-judicial position one of its lawyers held). The modern correlate is Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 9-101(A) (former judicial capacity) and Canon 9 (appearance of impropriety), Tennessee Code of Professional Responsibility
• Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), modern correlate

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Formal Opinion 49: DR 9-101(A) bar extends to cases involving similar facts
• ABA Formal Opinions 16, 30, 34, 77, 118, and 134: public officers representing private interests adverse to the public body
• Tennessee Formal Ethics Opinion 81-F-15: quasi-judicial strip-mining hearing officer barred from representing clients in similar federal matters

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.tbpr.org/ethic_opinions/82-f-32

Original opinion text

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

82-F-32 - Private practice for former judicial official

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 82-F-32

Inquiry is made as to the propriety of an attorney bringing a class action to recover the wrongful assessment of court costs in Juvenile Court when the attorney has sat as Special Juvenile Judge on limited occasions and wrongfully assessed such costs.

Disciplinary Rule 9-101(A) of the Code of Professional Responsibility prohibits an attorney from accepting employment in any matter upon the merits of which he has acted in a judicial capacity. In Formal Ethics Opinion 49 of the American Bar Association Committee on Ethics and Professional Responsibility, the prohibition from accepting employment in such instances was held to apply to cases involving similar facts. Formal Ethics Opinion 16, 30, 34, 77, 118 and 134 of the ABA relate to adverse influences and conflicting interests and pass on questions concerning the propriety of the conduct of an attorney who is a public officer in representing private interests adverse to those of the public body which he represents. Those opinions held that an attorney in public office should avoid all conduct which may tend to lead the layman to conclude that the attorney utilized a public position to further the professional success or personal interests of the attorney.

Formal Ethics Opinion 81-F-15 of the Ethics Committee of this Board held that the acceptance of a quasi-judicial position which calls upon the lawyer to conduct hearings and determine issues concerning violations of state strip mining regulations bars him and members of his law firm from acting as attorney for individuals charged with similar federal violations. The opinion pointed out that the public and private interests are inconsistent and that such a practice would diminish the public confidence in the administration of justice and demean the prestige of the public office.

When the attorney has acted in a judicial capacity on limited occasions and assessed court costs and then brings a class action to recover such costs, this constitutes a violation of the axiomatic norm of conduct expected of attorneys in their relationship with the public. Canon 9 of the Code of Professional Responsibility, "Avoiding Even the Appearance of Impropriety", should be strictly construed in such instances and no practice must be permitted which invites doubt or distrust of the integrity in our law, our courts and in the administration of justice.

This 18th day of June, 1982.

ETHICS COMMITTEE:

William R. Willis, Chairman

F. Evans Harvill

John R. Rucker, Senator

APPROVED AND ADOPTED BY THE BOARD