Can a former judge represent a party in a dispute over an order the judge himself entered while on the bench?

Plain-English summary

Lawyer A, a former family court judge, had while on the bench routinely approved and entered as the court's order a separation agreement the parties' attorneys presented, without inquiring into the merits. After leaving the bench and returning to private practice, he was retained by one of those parties in a dispute over the other party's alleged violation of that agreement. The committee was asked whether Rule 1.12 permits the representation.

The committee concluded it does not, absent all parties' consent after disclosure. Rule 1.12 bars a lawyer from representing anyone in a matter in which the lawyer participated "personally and substantially" as a judge unless all parties consent after disclosure. The judge plainly participated personally, having signed the order; the question was whether his participation was "substantial." Surveying other states (participation not substantial where a judge merely initialed a continuance; substantial where a judge made preliminary probable-cause findings), the committee found no opinion addressing a former judge whose only involvement was entering a consent order. It concluded his participation here was substantial, because entering the order was an order on the merits and, even on a consent order, the court is deemed to have sanctioned the parties' agreement (citing Johnson v. Johnson). The judge therefore performed a substantial judicial function, and absent all parties' consent after full disclosure he may not represent a party in the matter.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can the former judge take the case about his own order?

A: The committee concluded no, not without all parties' consent after disclosure, because Rule 1.12 bars representation in a matter in which the lawyer participated substantially as a judge.

Q: Was entering a routine consent order "substantial" participation?

A: Yes. The committee found that entering even a consent order is a substantial judicial function, because the court is deemed to have sanctioned the parties' agreement.

Q: Is there any way the former judge could represent a party?

A: Only if all parties to the proceeding consent after full disclosure, as Rule 1.12 allows.

Background and rules framework

The opinion applied Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral), which bars representation in a matter in which the lawyer participated personally and substantially as a judge unless all parties consent after disclosure. The South Carolina rule corresponds to like-numbered Model Rule 1.12.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.12 / Model Rule 1.12: a former judge may not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, absent all parties' consent.

Cases:

• Johnson v. Johnson, 425 S.E.2d 46 (S.C. 1992), a court entering a consent order is deemed to have sanctioned the parties' agreement.

Other opinions cited:

• Alabama Op. 87-32 (1987) (initialing a continuance not substantial); Iowa Op. 89-52 (1990) (probable-cause findings substantial).

See also

• SC Bar Ethics Op. 94-02: Part-Time City Judge as City Attorney
• SC Bar Ethics Op. 94-12: Reviewing a Case at a Judge's Request
• SC Bar Ethics Op. 94-05: Hiring a Sitting Probate Judge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-26/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-26

Lawyer A is a former family court judge who, while on the bench, approved and adopted as the order of the court a separation agreement presented to him by the attorneys for both parties. The approval of the agreement was routine, and there was no inquiry by the judge into the merits of the case. Since resigning from the bench and resuming private practice lawyer A has been retained by one of the parties to that action concerning an alleged violation of the agreement by the other party.

Question:
Does Rule 1.12 of SCACR 407, allow lawyer A to represent one party in a dispute over an alleged violation of the order entered by that lawyer when he was a family court judge?

Summary:
Rule 1.12 does not allow lawyer A to represent a party in a dispute over an alleged violation of an order entered by the lawyer when he was a family court judge unless all parties to the proceeding consent after disclosure.

Opinion:
Rule 1.12 provides that "a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge ... unless all parties to the proceeding consent after disclosure." It is clear that the judge participated "personally" in the matter since he signed the order. To determine whether he would be disqualified from representing the client, however, it must be determined whether his participation was "substantial." Another state considering this general question has concluded that a former judge's participation in a matter was not substantial when his only involvement was to place his initials alongside a notation that a case was continued. [Alabama Opinion 87-32 (3/13/87)] On the other hand, a judge's participation was found to be substantial when he made preliminary findings of probable cause in the client's earlier criminal trial. [Iowa Opinion 89-52 (5/11/90)] The committee has found no other opinion interpreting Rule 1.12 in which a former judge's only involvement in a prior matter was limited to the entry of a consent order.

The committee believes that lawyer A's participation in this matter was "substantial" because it involved the entry of an order on the merits in the case. The committee notes that the order was presented to him by both parties and it did not involve any matters as to which there was a dispute. Nevertheless even when entering a consent order the court is deemed to have sanctioned the agreement of the parties. Johnson v. Johnson, S.C., 425 S.E.2d 46 (1992). Therefore the judge was performing a substantial judicial function in approving the agreement and entering the order of the court. For these reasons, absent consent by all parties after full disclosure, the committee concludes that lawyer A may not represent a party in this matter.