Can a retired judge represent a party in a dispute the judge earlier ruled on while on the bench?

Plain-English summary

An attorney was a former family court judge. Before becoming a judge, he represented a person (the Client) who was a peripheral party in marital litigation between two others, one of whom (Party A) is the present antagonist. After becoming a judge, the attorney presided over several cases involving the same former Client, Party A, and others; in some, he merely incorporated other judges' rulings or approved consent orders, but at least one involved the merits of a dispute between the former Client and Party A. After retiring from the bench, he was asked to represent the former Client against Party A in the present matter. The question was whether he could do so.

The committee applied Rule 1.12, under which 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 consent after disclosure. The Comment explains that a former member of a multimember court is not barred where he had no role in the matter, nor is a judge who had only "remote or incidental administrative responsibility that did not affect the merits." Here, the attorney personally participated by presiding over cases where he issued orders on the merits affecting both the former Client and Party A, which reaches the level of substantial participation rather than remote or incidental administrative responsibility. The committee added that his having incorporated other judges' rulings or approved consent orders did not change this, because consent orders are considered orders on the merits, citing Opinion 93-26.

The committee concluded that the attorney's previous participation as a judge in cases involving the former Client and a party to the present litigation disqualifies him from representing the former Client unless all parties consent after disclosure.

Currency note

This opinion was issued in 1999, 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 Treat this page as historical context, not current guidance.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 a retired judge represent a party in a matter he ruled on as a judge?

A: The committee concluded he may not, unless all parties to the proceeding consent after disclosure, under Rule 1.12.

Q: Does it matter that he only incorporated other judges' rulings or approved consent orders?

A: The committee concluded it did not change the result, because issuing orders on the merits (including consent orders, treated as orders on the merits) is substantial participation.

Q: When would a former judge not be disqualified?

A: The committee noted the Comment exempts a former multimember-court judge who had no role in the matter, or one with only remote or incidental administrative responsibility that did not affect the merits.

Background and rules framework

The opinion interpreted South Carolina RPC 1.12 (former judge, arbitrator, or mediator; no representation in a matter in which the lawyer participated personally and substantially as a judge absent all parties' consent), corresponding to Model Rule 1.12, and its Comment on "personally and substantially," citing Opinion 93-26.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.12 / Model Rule 1.12: former judge or arbitrator; personal and substantial participation.

Other opinions cited:

• S.C. Bar Advisory Opinion 93-26: consent orders treated as orders on the merits.

See also

• SC Bar Ethics Op. 99-02: Appearing Before a Spouse's Judge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-06/

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 99-06

Facts
Attorney is a former family court judge. Before he became a judge, he represented a person (Client) who was a peripheral party in a case involving marital litigation between two other persons, one of whom is the present antagonist, Party A. After he became a judge, Attorney presided over several cases involving the same former Client, Party A, and others. In some of these cases in which former Client and Party A were parties, Attorney as a judge merely incorporated the rulings of other judges or approved consent orders between the parties. At least one other case over which Attorney presided as a judge involved the merits of a dispute between former Client and Party A. Attorney has retired from the bench and has been asked to represent former Client against Party A in the present matter.

Question
May Attorney represent Client in an action against one of the parties (Party A) in the earlier marital litigation and who was also a party, along with former Client, in several of the subsequent matters over which Attorney presided as a judge?

Summary
Attorney may not represent Client in the present action unless all parties to the proceeding consent after disclosure.

Opinion
Rule 1.12 of the Rules of Professional Conduct states 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." The extent of "personally and substantially" is explained by the Comment to this rule to mean that an attorney who was formerly a member of a multimember court is not subsequently prohibited from representing a client when the former judge had no role in the matter before the court when he was a member of that court, nor is a judge who had "remote or incidental administrative responsibility that did not affect the merits" prohibited from subsequently representing a client who was formerly before that court.

Here Attorney, in his former role as a judge, personally participated in that he presided over cases where he issued orders on the merits that affected both former Client and the party in the present action (Party A). Acting as a trial judge in matters that directly affected both parties reaches the level of substantial participation rather than "remote or incidental administrative responsibility." The fact that he may have incorporated the rulings of other judges or approved consent orders between the parties does not change this finding. This Committee has previously recognized the doctrine of "substantial participation" where a judge entered an order on the merits, finding that consent orders are considered to be orders on the merits. (See S. C. Ethics Advisory Opinion 93-26.)

It is the opinion of this Committee that Attorney's previous participation as a judge in cases involving former Client and a party to the present litigation disqualifies him from representing former Client unless all parties consent after disclosure.