One of my partners is a part-time municipal court judge. Can the rest of our firm represent clients whose interests are adverse to that municipality?

Plain-English summary

The inquiry asked whether, and under what circumstances, a part-time municipal court judge of Municipality X, or the judge's law firm partners, may represent clients whose interests are adverse to Municipality X. The municipal court has jurisdiction over housing, zoning, traffic, parking, and certain other municipal ordinances, plus specified state motor-vehicle and traffic statutes.

The opinion first declines to address restrictions on the judge's own practice. Under Rhode Island General Laws Section 8-18-8 (effective January 1, 1993), municipal court judges are subject to the Canons of Judicial Ethics and to the Commission on Judicial Tenure and Discipline, and the Panel's rules confer no authority to interpret the Canons. As to the judge, then, the Panel is unable to advise.

Turning to the firm, the opinion notes that Rule 1.10 imputed disqualification is based on a firm member's conflict of interest or knowledge of confidential information and does not reach disqualification under other bodies of rules. It reasons by analogy to Rule 1.11: that Rule would apply to the firm if the judge retired from public office, and should apply equally while the judge remains an active firm member. On that analogy, no firm member may act in a matter the judge participated in as judge unless the judge is screened, is apportioned no part of the fee, and written notice is given to the appropriate government agency (here, the municipal official or council that appoints or confirms the judge). The opinion also invokes Canon 2's appearance-of-impropriety principle and Rule 8.4(e), which makes it misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official.

The Panel's three conclusions: (1) no firm member may appear in a matter before the judge; (2) no firm member may appear in any aspect of a matter the judge participated in as judge unless the judge is effectively screened under the "Chinese Wall" procedures of Rule 1.11(a); and (3) the Rules otherwise impose no black-letter restriction on the firm representing clients adverse to Municipality X, though the firm should avoid the appearance of impropriety or any suggestion it can influence the court on which its member sits.

In practice

Under this opinion, the firm's exposure is bounded by two hard limits drawn from Rule 1.11 by analogy, and an appearance-of-impropriety caution. The firm may not appear before the judge at all, and may not touch matters the judge handled as judge absent screening, fee-apportionment, and notice to the appointing municipal authority. Beyond that, the opinion identifies no Rule of Professional Conduct that bars the firm from representing clients adverse to the municipality, while noting Rule 8.4(e) and the appearance-of-impropriety principle as general constraints. The opinion expressly limits itself to the Rules of Professional Conduct and does not reach the Canons of Judicial Ethics or the State Ethics Code.

Common questions

Q: Can the judge's partners appear in cases before the judge?

A: No. The opinion's first conclusion is that no member of the judge's law firm may appear in a matter before the judge.

Q: Can the firm handle matters the judge previously decided?

A: Only if the judge is effectively screened under the Rule 1.11(a) "Chinese Wall" procedures, apportioned no fee, and written notice is given to the appointing municipal authority.

Q: Is the firm otherwise barred from suing the municipality?

A: No. The opinion concludes the Rules impose no black-letter restriction on the firm representing clients adverse to Municipality X, subject to avoiding the appearance of impropriety.

Q: Did the Panel address the judge's own practice restrictions?

A: No. Because those are governed by the Canons of Judicial Ethics, which the Panel has no authority to interpret, it declined to advise on the judge's own conduct.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.10 (imputed disqualification), 1.11 (successive government and private employment), and 8.4(e) (misconduct: implying improper influence over a government official), analogs of the corresponding Model Rules. Rule 1.10 addresses imputation based on a firm member's conflict or confidential knowledge; Rule 1.11(a) permits screening of a disqualified lawyer with fee-apportionment and government notice. The opinion also references Section C of the Canons' Applications (continuing part-time judge) and Canon 2, but stresses that interpreting the Canons is outside the Panel's authority.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / RI RPC 1.10 (imputed disqualification: general rule)
• MR 1.11 / RI RPC 1.11(a) (successive government and private employment; screening)
• MR 8.4(e) / RI RPC 8.4(e) (implying ability to influence a government official)

Statutes:

• R.I. Gen. Laws Section 8-18-8 (effective Jan. 1, 1993; municipal court judges subject to the Canons of Judicial Ethics and the Commission on Judicial Tenure and Discipline)

See also

• RI EAP Opinion 92-63: city solicitor may not negotiate private work with an adverse party under 1.11(d)
• RI EAP Opinion 92-39: former government investigator barred under 1.11 from adverse representation

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%2093-17.pdf

Original opinion text

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

FINAL
ETHICS ADVISORY PANEL
Opinion #93-17, Request #347
Issued May 12, 1993

An advisory opinion is requested as to whether and under what circumstances a part-time municipal court judge of Municipality X or the judge's law firm partners may represent clients whose interests are adverse to Municipality X. Under the ordinances of Municipality X, the municipal court has jurisdiction over matters arising under the housing, zoning, traffic parking and certain other municipal ordinances, as well as specified state statutes relating principally to motor vehicles and traffic. There is at least one other municipal court judge in Municipality X, and under the municipal ordinances other persons may be temporarily designated to sit as municipal court judge if a regularly appointed judge is unable to perform his duties for any reason.

Rhode Island General Laws Section 8-18-8, effective January 1, 1993, provides that municipal court judges are subject to the Canons of Judicial Ethics and to discipline by the Commission on Judicial Tenure and Discipline (RIGL Title 8, Chapter 16). The Rules of the Rhode Island Supreme Court governing this Ethics Advisory Panel confer no authority to interpret the Canons of Judicial Ethics. In particular, under Rule 5, there is no presumption that an attorney relying on the opinion he has requested by this Panel has abided by any body of rules other than the Rules of Professional Conduct.

Accordingly, the Panel is unable to advise as to the restrictions on the municipal court judge's law practice. Restrictions on a judge's conduct are governed by the Canons of Judicial Ethics. However, those Canons must be our starting point in responding to the second part of the inquiry -- the restrictions on other attorneys in the judge's law firm that may arise under the Rules of Professional Conduct.

Under the Canons of Judicial Ethics, a municipal court judge would appear to be a "Continuing Part-Time Judge" as to which Applications Section C of the Canons excuses compliance with specified Canons that impose restrictions on a full-time judge's acting as an arbitrator or executor, practicing law, and engaging in certain political activities and fundraising. Applications Section C specifically provides that a continuing part-time judge

"shall not practice law in the court on which the judge serves or in any tribunal subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto."

Except for the Application Sections and corresponding definitions, the Canons of Judicial Ethics contemplate that a judge will be a full-time judge and will not practice law (Canon 4G). It is therefore not surprising that we find little guidance in the substantive provisions of the Canons as to what restrictions, if any, are applicable to the judge's law partners. Canon 3E provides that a judge should disqualify himself or herself in a matter in which the judge or a lawyer with whom the judge practiced when the judge was in private practice was involved, or if a lawyer in the proceeding is related to the judge or would have more than a de minimis interest that could be affected by the proceeding. On a more general note, Canon 2 provides in part:

A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. . . .

(2) A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

The converse of this rule is found in the Rules of Professional Conduct. The Preamble of those Rules provides that "a lawyer should avoid even the appearance of professional impropriety." Under Rule 8.4(e) it is professional misconduct for a lawyer to:

"state or imply an ability to influence improperly a government agency or official."

But aside from these general injunctions, there is no Rule of Professional Conduct that expressly restricts the practice of the law firm in which the part-time judge remains an active member. Rule 1.10 and 1.11 of the Rules of Professional Conduct normally provide guidance as to imputed disqualification. Rules 1.10 is based upon a firm member's conflict of interest or knowledge of confidential information, and does not extend to a firm member's disqualification under any other body of rules circumstances.

The imputed disqualification under Rule 1.11 applies to specific matters, agencies and information. That Rule would be expressly applicable to the judge's law firm were the judge to retire from the judge's public position; it should equally be applicable to the judge's law firm while the judge is an active member of that firm. By analogy to that Rule, no member of the judge's law firm could act in a matter in which the judge participated as judge unless the judge were screened from any participation in the matter and were apportioned no part of the fee therefrom and written notice were promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. In this context, we would consider the appropriate public agency to be the municipal official or council that appoints or confirms the appointment of the judge.

The Panel concludes:

1. No member of the judge's law firm may appear in a matter before the judge.

2. No member of the judge's law firm may appear in any aspect of any matter that the judge participated in as a judge unless the judge is effectively "screened" from direct or indirect participation or benefit in or from that matter in accordance with the "Chinese Wall" procedures specified in Rule 1.11(a).

3. The Rules of Professional Conduct do not otherwise impose black letter restrictions on the judge's law firm's representation of clients with interests adverse to Municipality X. The law firm should, however, avoid the appearance of impropriety or the suggestion that it can influence the court on which its member sits.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the Canons of Judicial Ethics, the State Ethics Code or any other rules, regulations or laws that may have a bearing on the issues raised by this inquiry.