Can a lawyer privately review and comment on a case a judge has under advisement when the lawyer represents no party in it?

Plain-English summary

A judge asked a lawyer who represented no party in a pending case, and who was otherwise uninvolved, to review and comment on a matter the judge had under advisement. The committee was asked whether the lawyer could comply and whether the lawyer had to notify the attorneys in the case that the judge had consulted him.

The committee concluded the ethical rules do not prohibit the lawyer from complying with the judge's request. It further concluded the lawyer is under no obligation to notify the parties under Rule 8.4(g), because that notice is the judge's responsibility under Canon 3(A)(4) of the Code of Judicial Conduct.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Could a lawyer agree to a judge's request to review a case under advisement?

A: The committee concluded yes, where the lawyer represents no party and is otherwise uninvolved; the ethical rules do not prohibit complying with the request.

Q: Did the lawyer have to tell the parties' attorneys that the judge had consulted him?

A: The committee concluded no. It placed the duty to notify the parties on the judge under Canon 3(A)(4) of the Code of Judicial Conduct, not on the consulted lawyer under Rule 8.4(g).

Background and rules framework

The opinion read Rule 8.4(g) (misconduct) together with Canon 3(A)(4) of the Code of Judicial Conduct, which governs a judge's handling of ex parte communications. The committee located the obligation to notify the parties with the judge rather than the consulted lawyer. The South Carolina rule corresponds to like-numbered Model Rule 8.4.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.4 / Model Rule 8.4: misconduct (the opinion referenced Rule 8.4(g)).

Other authority:

• South Carolina Code of Judicial Conduct, Canon 3(A)(4): a judge's responsibility regarding ex parte communications.

See also

• SC Bar Ethics Op. 94-30: Disclosing a Client's Whereabouts
• SC Bar Ethics Op. 94-18: Government Lawyer Learning of Employee Misconduct

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-12/

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 94-12

May an attorney, at a judge's request, review and comment upon a matter which the judge has pending or under advisement if the attorney is not representing a party in the case or is not involved in the case in any way? What obligation does such attorney have to notify the attorneys involved in the case that he was consulted by the judge?

Opinion:
The ethical rules do not prohibit the attorney's complying with the judge's request. The attorney is under no obligation to notify the parties under Rule 8.4(g) as this is the judge's responsibility under 3(A)(4) of the Code of Judicial Conduct.