I was a Superior Court law clerk. Can I now represent a party in a case that was pending before the judge I clerked for?

Plain-English summary

The inquiring attorney asked the panel about a past position as a Superior Court law clerk and its effect on present employment.

The panel took the position that under Rule 1.12(a) of the Rhode Island Rules of Professional Conduct, the attorney should not represent any party in a matter that was pending before the judge for whom the attorney was a law clerk, because the attorney often discussed those matters with the judge, and therefore an appearance of impropriety would exist.

The panel further stated that representation would be possible if consent of all parties is obtained.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.12(a) as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can I take a case that was pending before the judge I clerked for?

A: Per the opinion, no. Under Rule 1.12(a) the attorney should not represent any party in a matter that was pending before that judge, because the attorney often discussed those matters with the judge and an appearance of impropriety would exist.

Q: Is there any way I can still take the case?

A: Per the opinion, representation would be possible if the consent of all parties is obtained.

Q: What made the concern concrete here?

A: Per the opinion, the attorney often discussed these matters with the judge while serving as law clerk.

Background and rules framework

The opinion applies Rhode Island Rule 1.12(a), corresponding to Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral, and their staff). 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 or law clerk, unless all parties to the proceeding give informed consent. The panel grounded the disqualification in the attorney's discussions with the judge about the pending matters and the resulting appearance of impropriety, and identified all-party consent as the cure.

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or law clerk)
• RI RPC 1.12(a)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-51: Successive Government Practice and the One-Year Bar Under Rules 1.10 and 1.11
• RI EAP Op. 91-60: A Lateral Associate's Prior Plaintiff Work Imputes a Conflict
• RI EAP Op. 91-33: No Conflict When a Former Client May Testify Against a Current 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%2091-70.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-70, Request #172
Issued October 30, 1991

An attorney seeks Panel advice concerning a past position as a Superior Court Law Clerk and its effect on present employment.

The Panel is of the opinion that under Rule 1.12(a) of the Rhode Island Rules of Professional Conduct, the attorney should not represent any party in a matter which was pending before the judge for whom the attorney was a law clerk since the attorney often discussed these matters with the judge, and therefore the appearance of impropriety would exist. The Panel further states that representation would be possible if consent of all parties is obtained.