Posted Aug 02, 2008 01:00 am CDT
Is it ethically possible for the lawyer to represent the judge in one case and appear before the judge in another matter?
The answer is maybe, says the ABA Standing Committee on Ethics and Professional Responsibility in Formal Opinion 07-449 (Aug. 9, 2007). But the committee cautions that those circumstances contain potential pitfalls for both the lawyer and the judge.
Under Rule 1.7 of the ABA Model Rules of Professional Conduct, the lawyer must determine whether there is a significant risk that representing either client would be materially limited by his or her obligations to the other client. “If so, the lawyer may proceed with the representation under Rule 1.7(b) only if the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client, and each affected client gives informed consent, confirmed in writing,” states the committee’s opinion.
The judge, meanwhile, is governed by Rule 2.11 of the ABA Model Code of Judicial Conduct, which states that a judge must disqualify herself from presiding over any proceeding if she has a personal bias or prejudice concerning a party or a party’s lawyer. “The existence or nonexistence of such bias or prejudice depends on the facts of any particular situation,” notes the opinion.
Even if the judge concludes that she is not personally biased or prejudiced toward her lawyer, she may continue to preside over the case only if she discloses on the record that she is being represented in the other matter by the lawyer (or another member of the lawyer’s firm), and the parties and their lawyers all agree to waive the judge’s disqualification after considering the disclosure out of the presence of the judge and court personnel.
(Most state conduct codes and rules for lawyers and judges are based on the Model Rules and the Model Code.)
For a lawyer, the situation becomes most problematic if the judge fails to comply with the disclosure requirements, set forth in Rule 2.11 of the judicial code.
The ethics committee concluded that a lawyer who continues to participate in a case presided over by the judge is violating Rule 8.4 of the Model Rules, which prohibits lawyers from knowingly assisting misconduct by a judicial officer. But the lawyer’s options on how to proceed are limited. Under Model Rule 1.6, the lawyer’s representation of the judge is confidential information that the lawyer generally may not disclose without the judge’s consent.
The necessary—or at least prudent—action is to withdraw from at least one, and probably both, of the representations, under Model Rule 1.16 (Declining or Terminating Representations). “The committee believes that, at least presumptively, the representation begun later in time is the one from which withdrawal would be required,” says the opinion, because that is the representation that triggered the violation of Rule 8.4.
After withdrawing, the lawyer still would be prohibited from disclosing information about representing the judge, says the committee, which also concluded that the obligation of confidentiality trumps any duty to report the judge to appropriate disciplinary authorities.
A lawyer can avoid the whole sticky wicket, says the ethics committee, by including a provision in the engagement letter to represent a judge stating that, in the event the lawyer or a member of his firm appears before the judge during the representation, the judge will either disqualify herself entirely or make appropriate disclosures on the record as required by the judicial code. An alternative: Include an advance waiver of confidentiality in the engagement letter. n