Opinion 88-28
(November 1988)

This letter is in response to the inquiry to the Professional Guidance Committee set forth in your letter to me dated August 24, 1988. You state that you represent a client who has been appointed to fill a judicial vacancy for an unexpired term who, once the term expires, anticipates running for election to the same judicial office. In the event such client is not so elected following the expiration of such term, you state he wishes to return to his previous law partnership and re-establish his position there as a partner pursuant to the terms of a proposed Termination Agreement.

The Termination Agreement provides that, among other things, your client is to receive an accounting of the value of his partnership interest and a payout thereof in accordance with the terms of a certain Partnership Agreement (a copy of which was not supplied). Further, the Termination Agreement provides should your client ...not [be] elected to a full term as a judge of the Court of Common Pleas of Philadelphia County in elections scheduled to occur on November 7, 1989, he shall be reinstated as a primary partner with all rights, privileges and obligations which he had immediately prior to the closing date....

Inasmuch as the Partnership Agreement to which your client is a party is not available to this Committee, any opinion expressed herein is expressly contingent upon there existing no provision therein which would be contrary to any standards discussed herein.

Both the Code of Judicial Conduct and the Rules of Professional Conduct provide guidance concerning your request, each in terms of general principles and specific structures.

Generally, the Code of Judicial Conduct (CJC) provides that judges shall strive to uphold the integrity and independence of the judiciary, avoid improprieties and the appearance of improprieties, and to perform the duties of his office impartially and diligently (Cannons 1, 2, and 3).

Specific provisions which bear directly upon your inquiry (Canons 2 and 5 the CJC) further provide in relevant part that:

Canon 2

(B)... He [a judge] should not lend the prestige of his office to advance the private interest of others....

Canon 5(c)

C. Financial Activities

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

(3) A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so without serious financial detriment, he should divest himself investments and other financial interests that might require frequent disqualification.1

F. Practice of Law. A judge should not practice law.

With regard to the Rules of Professional Conduct, Rule 8 requires a lawyer who is a candidate for judicial office to comply with the CJC (Rule 8.2(b)) and, of course, to maintain the integrity of the profession.

Rule of Professional Conduct 1.12 also provides that:

(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after disclosure. 2

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom: and (2) written notice is prompt given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule.

The Committee believes that with certain modifications (discussed below) to the proposed Termination Agreement the proposed Termination Agreement would present no ethical violations so long as the general standards set forth in Canons 1 and 2, and 3 of the CJC and Rule 8 of the Rules of Professional Conduct above are observed both in spirit and according to their letter.

The Termination Agreement should make specific provisions to comply with the structures set forth in Rule 1.12. Rule 1.12 is designed to prevent, among other things, former judges from benefiting a private party with knowledge or information gained while in public office, and to prevent an opposing party being disadvantaged by reason of such public service. Thus, the Committee believes that the Termination Agreement should be amended to provide that should your client return to his or her former law practice (whether before or after serving as an elected judge), that he or she shall not represent anyone in connection with any matter in which he or she participated as a judge unless all parties to the proceeding consent after disclosure. Should any party not consent, the amendments should also provide that any other lawyer in your client's law firm shall only undertake such representation if the former judge is screened from any participation and written notice is served upon all parties and the tribunal (if any). Further, the Committee believes that the Agreement should recite specifically what financial impact would occur to your client should circumstances occur under which the foregoing changes would become operative.

Canon 5 of the CJC seeks to prevent, among other things, financial interests and investments between judges and lawyers for the obvious reason that such relationships can create an appearance of impropriety and require frequent disqualification. The Committee therefore believes that, in view of CJC Cannon 5, the Termination Agreement should be further amended to provide that your client shall not at any time prior to his termination of judicial duties have any participation in or input concerning any business dealings, decisions, or issues of any type concerning the law firm from whence he departed, and that paragraph 10 of the Termination Agreement should also be amended to more clearly provide that your client shall retain no financial interests in or rights concerning the law practice inconsistent with any of the foregoing.

Additionally, since there is no indication in your letter or the proposed Termination Agreement concerning whether your client's name in whole or in part contributes to the firm name of the partnership being departed, the Committee believes in view of Canon 2 of the CJC and in order to avoid having your client's judgeship lend prestige to his former law firm, a specific provision in the Termination Agreement should be added to provide for the deletion any reference to your client's name on the firm's letterhead and other printed or written materials.

Finally, the Committee believes that, while all judges have the continuous obligation to avoid conflicts of interest and participating in matters in which he or she may have an interest, your client must be particularly careful to also avoid participating in any matter which may have any impact upon his former law partners or their practice. For example, should your client be asked to decide as a judge of the Court of Common Pleas a question without precedent in the Commonwealth which, depending upon the ruling, could significantly enhance the rights of individuals typical of his former law firm's clients, such a ruling could easily be interpreted as being motivated at least in part by your client's desire to benefit his former partners, or himself, or both. Since your client may well return to such practice, any decision he or she may render as judge which would affect the law practice would in the Committee's view be improper. Although the judge appears under the Termination Agreement to enjoy no financial benefit from any enhancements that may occur in the law firm's practice during his or her judicial service, should he or she return as a partner, he or she could and probably would benefit in the long run from such an enhancement.)

The Committee also believes that, depending upon the judge's case load, recusal in controversies which could impact upon your client's former law partners may require frequent disqualification. While the Committee cannot know the actual number of future disqualifications that may be necessary, should the potentiality of returning to the judge's former law practice pursuant to the Termination Agreement require frequent disqualification (as that phrase is used in CJC (c)(3)), then your client would at such time be presented with an ethical violation unless he or she either (a) resigns as judge, or (b) sever all ties with the law firm (including all rights under the Termination Agreement).

We hope that this response will be helpful to you. As you are aware, this is not the opinion of the Disciplinary Board of the Supreme Court of Pennsylvania, nor that of the Judicial Inquiry and Review Board. This response is not binding and carries only such weight as may be given to it by an appropriate reviewing authority.

We will continue to remain available to you should you desire further information.

Notes

1. Cannon 3(c)3(c) provides in essence that a financial interest means ownership of a substantial legal or equitable interest, or a relationship as a director, advisor, or other active participant in the financial affairs of an entity.

2. Subsection D relates to a former arbitrator and is not relevant to this inquiry.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.