Can a former judge, now in private practice, represent a party in a case the judge ruled on, and can the judge's partners or associates take it?

Plain-English summary

The Committee was asked whether an ex-judge in private practice may represent a party in a case the judge had ruled on as a judge, and whether the ex-judge's partner or associate could take such a case. It answered no to both. The opinion built on KBA E-20, which had allowed a former judge to take a case where the judge had ruled only on perfunctory motions and not on the merits, and KBA E-41, which had allowed a former judge to represent a person on a contempt matter so long as the lawyer did not attack the underlying judgment the judge had entered.

The opinion quoted EC 9-2, EC 9-3, and DR 9-101(A), which barred a lawyer from accepting private employment in a matter on the merits of which the lawyer acted in a judicial capacity. It relied on Kentucky Bar Association v. Fitzgerald, 652 S.W.2d 77 (Ky. 1983), where the Supreme Court applied DR 9-101(A) to a former judge who sought to represent a party in a custody dispute he had decided. Unable to find an accepted dictionary definition of "merits," the Committee defined the word to mean an action in a case in which the former judge had, and exercised, substantial responsibility as a judge, which could include signing an agreed order, ruling on a motion, or setting bond. Because the ex-judge was precluded, the opinion concluded that under DR 5-105(D) no partner or associate could take the case either.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Model Rule 1.12 now governs former judges and provides for screening in some circumstances. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former judge represent a party in a case the judge once decided?

A: Under this opinion, no. DR 9-101(A) barred private employment in a matter on the merits of which the lawyer acted in a judicial capacity.

Q: What counts as acting on the "merits"?

A: The opinion defined "merits" as a case in which the former judge had and exercised substantial responsibility as a judge, which could include signing an agreed order, ruling on any motion, or setting bond.

Q: Does the bar reach the former judge's law partners?

A: Yes. The opinion concluded that if the ex-judge is precluded, no partner or associate may take the case, citing DR 5-105(D).

Background and rules framework

The opinion applied DR 9-101(A) (avoiding the appearance of impropriety in matters the lawyer handled as a judge) and DR 5-105(D) (imputed disqualification) of the former Code. The modern analogs are Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral) and Model Rule 1.10 (imputation within a firm). The analysis turned on whether the former judge had exercised substantial judicial responsibility in the matter.

Citations and references

Rules of Professional Conduct:

• DR 9-101(A); DR 5-105(D); EC 9-2; EC 9-3 (former Code)
• MR 1.12 (former judge); MR 1.10 (imputation)

Cases:

• Kentucky Bar Association v. Fitzgerald, 652 S.W.2d 77 (Ky. 1983), former judge barred from representing a party in a matter he decided

Other opinions cited:

• KBA E-20 (perfunctory motions, not the merits); KBA E-41 (contempt, no attack on underlying judgment)

See also

• KBA Ethics Op. E-301: Former Judge, Firm Consent and Screening
• KBA Ethics Op. E-350: Prosecutor Conflict Imputed to Firm

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-287.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-287
Issued: May 1984

This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising
Commission Regulations, before relying on this opinion.

Question 1:

May an ex-judge presently in private practice represent a party in whose case the
judge ruled on the merits of as a judge?

Answer 1:

No.

Question 2:

May a partner or associate of the ex-judge above represent the party?

Answer 2:

No.

References:

KBA E-20, E-41; EC 9-2, 9-3; DR 9-101(A), 5-105(D); Kentucky Bar Association
v. Fitzgerald, Ky., 652 S.W.2d 77
OPINION

This committee in KBA E-20 looked at a similar question and ruled that a Circuit Judge
who had not been called upon to pass on the merits of the case but only on perfunctory motions not
considering the merits of the action could take a case in the private practice. The opinion
specifically noted that the judge or lawyer should at all times avoid by every means any actions
which would cause the public to question the propriety of the actions, or which would tend to cause
doubt in the mind of the public as to our judicial process.
In KBA E-41 this committee allowed a former judge to render legal services for a person
charged with a contempt of court violation in which the lawyer when judge entered the judgment.
The committee noted that the lawyer may not attack the underlying judgment or appeal the under
lying judgment since this would be taking an inconsistent position.
The Code of Professional Responsibility provides:
EC 9-2 Public confidence in law and lawyers may be eroded by
irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a
lawyer may appear to laymen to be unethical. In order to avoid misunderstandings
and hence to maintain confidence, a lawyer should fully and promptly inform his
client of material developments in the matters being handled for the client. While a

lawyer should guard against otherwise proper conduct that has a tendency to
diminish public confidence in the legal system or in the legal profession, his duty to
clients or to the public should never be subordinate merely because the full
discharge of his obligation may be misunderstood or may tend to subject him or the
legal profession to criticism. When explicit ethical guidance does not exist, a
lawyer should determine his conduct by acting in a manner that promotes public
confidence in the integrity and efficiency of the legal system and the legal
profession.
EC 9-3 After a lawyer leaves judicial office or other public employment,
he should not accept employment in connection with any matter in which he had
substantial responsibility prior to his leaving, since to accept employment would
give the appearance of impropriety even if none exists.
DR 9-101 Avoiding Even the Appearance of Impropriety.
(A)
A lawyer shall not accept private employment in a matter upon the merits of
which he has acted in a judicial capacity.
In Kentucky Bar Association v. Fitzgerald, Ky., 652 S.W.2d 77 (1983), the Supreme Court
had an occasion to review DR 9-101(A). In that case the former judge sought to represent a person
who received custody of children by him as judge against the natural mother who was now seeking
to transfer custody.
The Court viewed such conduct and stated, "... a lawyer should avoid professional
involvement in matters for which he has previously exercised substantial judicial responsibility
since to accept employment would give the appearance of impropriety even if none exists". (Page
77).
The Ethics Committee is aware that there are many reasons for judges to leave the bench.
Unfortunately, the pay scales in the Commonwealth of Kentucky may be the leading factor.
However, the judge accepts the benefits, as well as the detriments of the position, and certainly
knows of the provisions in the Code of Professional Responsibility
The real question here is what constitutes an act by a judge on the "merits"? This
committee has reviewed many dictionaries and has been unable to come up with an acceptable
definition for the word "merits". It is this committee's opinion that the word "merits" refers to the
judge taking an action in a case in which the former judge had, and exercised, substantial
responsibility as a judge. This may consist of a mere signing of an Agreed Order, Ruling on any
Motion, Setting Bond, etc.
If the ex-judge is precluded from the representation, no partner or associate may take the
case. DR 5-105(D).

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.