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.