Can a retired judge now at a legal aid office represent a client who once appeared before him on the bench?

Plain-English summary

The inquiry concerned a retired judge, now volunteering for a local legal aid office, who wished to represent a client in an ongoing child custody and parenting dispute. That same client had appeared before him in Drug Court while he was on the Superior Court bench, and he had signed an agreed order in the custody dispute, which resulted from a hearing before another judge who was out of town. The question was whether the representation would violate the Rules of Professional Conduct.

The committee said it cannot comment on potential violations of the Code of Judicial Conduct. It then said that if the judge did not have any substantial participation while on the bench in the matter in which he now wishes to represent the client, the representation does not appear to violate RPC 1.12. The committee added that the retired judge's involvement in the drug proceedings involving his current client might be deemed personal and substantial participation in a related matter, but, if so, that can be addressed by the informed consent of his client. On the facts presented, it did not appear that the retired judge had personal and substantial participation in the child custody and parenting dispute so as to require the consent, after disclosure, of the other party to that proceeding.

Currency note

This opinion was issued in 2005, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee resolved the former-judge question through RPC 1.12's "personal and substantial" participation test. Where the former judge had no such participation in the very matter, the representation did not appear barred. Where his participation was in a related matter (the client's drug-court proceedings), the committee said the issue could be cured by the client's informed consent. On these facts, because the judge had not personally and substantially participated in the custody dispute itself, the committee said the other party's consent was not required. The committee expressly declined to address the Code of Judicial Conduct.

Common questions

Q: Can a former judge represent a person who once appeared before him?

A: The committee said it does not appear to violate RPC 1.12 if the judge had no personal and substantial participation, while on the bench, in the matter he now wants to handle.

Q: What if the judge participated in a related matter involving the same person?

A: The committee said that participation in a related matter, such as the client's drug-court proceedings, might be personal and substantial, but it can be addressed by the informed consent of the lawyer's own client.

Q: Did the other party have to consent here?

A: The committee said no, because on these facts the retired judge did not personally and substantially participate in the custody dispute itself.

Q: Did the committee address judicial-conduct rules?

A: No. The committee said it cannot comment on potential violations of the Code of Judicial Conduct.

Background and rules framework

The opinion interprets RPC 1.12 (Model Rule 1.12, former judge, arbitrator, mediator, or other third-party neutral), which restricts a lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, absent informed consent. The committee applied the "personal and substantial" participation standard to distinguish the matter the former judge wished to handle from the related drug-court proceedings. The analysis turns on the degree of the judge's prior involvement, not on the mere fact that the client once appeared before him.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.12 / Washington RPC 1.12 (former judge or third-party neutral; personal and substantial participation; informed consent)

See also

• WSBA Ethics Op. 1073: Judicial Law Clerk's Post-Clerkship Conflicts
• WSBA Ethics Op. 1241: Pro Tem Judge and a Firm Client
• WSBA Ethics Op. 1333: Part-Time Commissioner Practicing Before the Same Court

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1332

Original opinion text

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

Advisory Opinion: 2092
Year Issued: 2005
RPC(s): RPC 1.12
Subject: Conflict of interest

The inquirer asks if it is a violation of the Rules of Professional Conduct for a retired judge, now volunteering for a local legal aid office, to represent a client in an ongoing child custody/parenting dispute when that same client appeared before him in Drug Court while he was still on the Superior Court bench and when he signed an agreed order in the child custody/parenting dispute which was the result of a hearing in front of another judge when the other judge was out of town.

The committee cannot comment on potential violations of the Code of Judicial Conduct. Nonetheless, if the judge did not have any substantial participation while he was on the bench in the matter in which he now wishes to represent the client, representation of that client does not appear to be a violation of RPC 1.12. The retired judge’s involvement in drug proceedings involving his current client may be deemed “personal and substantial” participation in a related matter but, if so, can be addressed by the informed consent of his client. Under the facts of this case, it does not appear that the retired judge had “personal and substantial” participation in the child custody/parenting dispute so as to require the consent, after disclosure, of the other party to the child custody proceedings.