Can client consent or screening let a former judge's law firm work on a matter in which the judge ruled on the merits while on the bench?

Plain-English summary

This opinion clarified KBA E-287, which had held that neither an ex-judge nor his associates or partners may represent a party in whose case the judge previously ruled on the merits. The Committee revisited that holding in light of authorities E-287 had not addressed. Citing the ABA/BNA Manual on Professional Conduct, it explained that disqualification of a neutral decision-maker protects public confidence in the judicial process, but that when all parties to a dispute consent to a judicial officer's subsequent participation as a lawyer, the threat to public confidence is substantially eliminated because the parties themselves vouch for the propriety of the conduct, drawing an analogy to Canon 3(D) of the Model Code of Judicial Conduct (a disqualified judge may continue to participate if, after disclosure, the parties all agree).

The Committee also relied on ABA Formal Opinion 342 (1975), which approved "screening" to avoid imputing a former government lawyer's disqualification to his firm, reasoning that the same considerations justify screening here so as not to create a class of persons automatically barred from returning to practice after leaving government service. It noted that the New York City bar's Opinion 889 had approved screening in this context, requiring the judge to be screened from the matters, the clients to be advised of any circumstances that might raise a propriety question, and an affidavit to be filed with the court so it could review the screening mechanism. The Committee concluded that whether screening can resolve the problem in a particular case is for the parties and the trial court to determine, and that in any event the conflict must be resolved by consent or prior court approval.

Currency note

This opinion was issued in 1985 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. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 personally represent a party in a case he decided on the bench?

A: No. The opinion left intact KBA E-287's holding that the ex-judge himself may not represent a party in a matter in which he ruled on the merits.

Q: Can the former judge's law firm handle that matter?

A: Qualified yes. The opinion concluded the firm may participate where the parties consent or the court approves and the firm screens the former judge from the matter.

Q: What does effective screening look like under the opinion?

A: Drawing on NYC Opinion 889, the opinion described screening the judge from the cases, advising clients of circumstances that might raise a propriety question, and filing an affidavit with the court so it can review the screening mechanism.

Background and rules framework

The opinion applied the former Code's imputed-disqualification and appearance-of-impropriety provisions, DR 5-105(D) and DR 9-101, together with the screening rationale of ABA Formal Opinion 342 and Canon 3(D) of the Model Code of Judicial Conduct. The modern analogs are Model Rule 1.12 (a former judge or other adjudicative officer may not represent anyone in a matter in which he participated personally and substantially, with firm participation permitted on timely screening and notice) and Model Rule 1.10 (imputation of conflicts within a firm). The analysis turned on consent of the parties or court approval coupled with screening.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D); DR 9-101 (former Code)
• MR 1.12 (former judge or adjudicative officer); MR 1.10 (imputation of conflicts)

Other authorities and opinions cited:

• ABA/BNA Manual on Professional Conduct, 91:4502-4503
• ABA Formal Op. 342 (1975): screening of former government lawyers
• N.Y.C. Op. 889: screening a former judge's firm; client notice and court affidavit
• KBA E-287 (clarified by this opinion)

See also

• KBA Ethics Op. E-398: Lawyer Hearing Examiner
• KBA Ethics Op. E-332: Government Lawyer and Agency Employee Contact

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-301.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-301
Issued: January 1985

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), before relying on this opinion.

Question:

May client consent or "screening" permit a former judge's firm to participate in a
matter in which the former judge "ruled on the merits" while on the bench?

Answer:

Qualified yes.

References:

KBA E-287; MOPC 91:4503; ABA Former Op. 342 (1975); N.Y.C. Op. 889 (n.d.).
OPINION

This request seeks clarification of KBA E-287, which held that neither an ex-judge nor his
or her associates or partners may represent a party in whose case the judge previously ruled on the
merits.
KBA E-287 did not address the relevance of several authoritative constructions of the Code
of Professional Responsibility and the Code of Judicial Conduct. Specifically, the ABA/BNA
Manual on Professional Conduct points out at page 91:4503:
The disqualification of a neutral decision-maker from subsequent
representation in related matters is necessary to maintain public confidence in the
judicial process. Cf. ABA Model Code of Judicial Conduct, Canon 3. Public
confidence could reasonably be expected to suffer if it were apparent that a
judicial officer had interests that affected the judge's impartiality in a matter.
However, when all parties to a dispute consent to a judicial officer's subsequent
participation as a lawyer, any threat to public confidence is substantially
eliminated because the parties themselves vouch for the propriety of the conduct.
Cf. ABA Model Code of Judicial Conduct, Canon 3(D), which states: 'A judge...
may, instead of withdrawing from the proceeding, disclose... the basis of his
disqualification. If (after) disclosure, the parties... all agree... the judge is no
longer disqualified, and may participate in the proceeding.'
The same text also points to ABA Formal Opinion 342 (1975), which approved of
"screening" to avoid imputing to a law firm employing a former government lawyer that lawyer's
hypothetical disqualification. The same considerations justify "screening" as a means of avoiding
the harsh results of imputed disqualification that arise in this context. Specifically, it is not
acceptable to create a class of persons who are automatically prevented from moving back into law
practice when leaving government service. MOPC at 91:4502 (approving the "screening' of
former judges).

We note that the Committee on Professional Ethics of the Association of the Bar of the
City of New York recently issued Opinion 889, approving "screening" in this context. That
opinion states:
A law firm may represent three clients in pending litigations that were
assigned to one judge after that same judge resigns from the bench and joins the law
firm. If the judge had acted on the merits of the client's disputes as a judge, the
judge must not represent those same clients and the law firm must institute an
effective mechanism to screen the judge from the cases. The clients should be
advised of any circumstances that might cause a question to be raised concerning
the propriety of their continued representation. When a judge is disqualified from
working on a matter but his firm will continue to appear, an affidavit must be filed
with the court in which the matter was pending to give the court the opportunity to
review the screening mechanism. Opinion 889, DRs 5-105(D), 9-101 (A)(B); EC
9-3; ABA 342.
Whether or not "screening" can resolve this problem in a particular case is a matter that
should be determined by the parties and the trial court. In any event, the conflict must be resolved
by consent or prior court approval.

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.