These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 19 - Judge Conflicts
LEO NumTopicsSummaryDate
0713

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19-Judge Conflicts

20-Government Official Conflicts

A city attorney may serve as a hearing officer in other jurisdictions as long as the lawyer complies with the ethics rules. 8/20/1985
1439

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A Commissioner in Chancery involved in a divorce proceeding left a firm to become a judge. The client may hire another lawyer in the firm to represent the client in a child custody dispute. 10/21/1991
ABA-391

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19-Judge Conflicts

A former judge may not use the term "judge" when practicing law. 4/24/1995
0623

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7-Family Conflicts

19-Judge Conflicts

A judge cannot sit on a case in which a party is represented by lawyer from judge's son's or daughter-in-law's firm, unless the relationship is disclosed and parties consent. 11/14/1984
1070

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9-Government Lawyer Conflicts

19-Judge Conflicts

51-Government Attorneys

A lawyer acting as a Special Justice may not handle any cases in which the lawyer was involved as an Assistant Commonwealth's Attorney. 5/4/1988
1804

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19-Judge Conflicts

A lawyer appearing before a judge on whose behalf the lawyer had filed a supporting letter in connection with a complaint against the judge being considered by the Judicial Inquiry and Review Commission: does not have to reveal this fact to opposing counsel; has not run afoul of the Rules' prohibition on giving "anything of value" to a judge if the "gift or loan" appears to be made "to influence official action" (because the letter is not a "gift or loan"); must be careful not to state or imply that the lawyer may "influence improperly" the judge. 9/20/2004
1234

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19-Judge Conflicts

45-Law Firms - Miscellaneous

A lawyer becoming a judge may sell the physical assets of a law firm but not its goodwill, active client files or work in progress. It is improper to inflate the value of the assets to disguise the sale of the practice as a going business. [Rule 1.17 permits the purchase or sale of a law firm's practice, including good will, under certain circumstances.]4/19/1989
ABA-449

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19-Judge Conflicts

43-Conflicts of Interest - Miscellaneous

A lawyer considering whether to represent a judge who is simultaneously presiding over a matter involving a client may proceed "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." A judge considering whether to retain a lawyer who might appear before the judge must recuse himself if the representation would create "a personal bias or prejudice concerning a party or a party's lawyer" (this is a non-waivable ground for disqualification under the new judicial code). A judge represented by a lawyer appearing before him and who determines that he does not have such a personal bias or prejudice may continue presiding if the judge discloses on the record the lawyer's representation of the judge on an unrelated matter, and if the parties and their lawyers consider "out of the presence of the judge and court personnel" whether to weigh the disqualification, and unanimously agree that the judge may continue presiding. A lawyer's silence in the face of a judge's failure to comply with this process himself violates the prohibition on assisting a judge in an ethics violation. A lawyer's reminder to the judge of his duty does not violate the ex parte contact prohibition. If the judge still does not make the required disclosure after such a reminder, the lawyer representing the judge in an unrelated matter may not disclose the representation (which is protected by the ethics duty of confidentiality, although not by the attorney-client privilege). Even if otherwise permissible, such a disclosure would not comply with the process mandated by the judicial code. Similarly, "the judge's misconduct cannot be cured by reliance on the fact that all parties to the matter already might be aware of the lawyer's representation of the judge in another matter." If the lawyer discovers that one of his firm's clients is appearing before a judge that the lawyer is representing, "the Committee believes that, at least presumptively, the representation begun later in time is the one from which withdrawal would be required." The lawyer might also have to withdraw from representing the client, either because the judge might "develop a bias" against the lawyer or his partner, or because the lawyer cannot obtain his other client's consent to the continuation of the representation despite the judge's possible bias (because the lawyer cannot disclose his or his partner's representation of the judge). The lawyer may not report the judge (his client) to the judicial disciplinary authority, because Rule 1.6 trumps the duty to report a judge's misconduct. Neither the lawyer nor judicial ethics rules "prescribe specific time periods" that a lawyer "ought not to appear before the judge on behalf of a client" if the lawyer had previously represented the judge. That issue depends on "whether a reasonable person would believe, in light of the time that had elapsed, that the judge's fairness and impartiality could still be questioned." In making that determination, the lawyer should assess the nature of his representation of the judge (whether it was consequential as a judicial disciplinary proceeding as inconsequential as a real estate transaction), the size of the fee, whether the representation was isolated or one of a series of matters "and whether the representation was in a matter that was highly confidential or highly publicized." Lawyers considering representing judges might ask the judge to sign an engagement letter pledging to follow the judicial code process, or an engagement letter with "an advance waiver of confidentiality."8/9/2007
0215

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19-Judge Conflicts

A lawyer may appear before a court in which a partner is a substitute judge as long as the partner has not presided over any of the case. 6/3/1972
0750

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7-Family Conflicts

19-Judge Conflicts

A lawyer may appear before a judge who has a relative (including in-laws) in the lawyer's firm, but the judge must disclose these facts to all parties, and obtain their consent. [The judge's possible disclosure duties would be found in the Canons of Judicial Conduct.]12/30/1985
0676

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19-Judge Conflicts

A lawyer may appear before a judge who has a relative in the lawyer's firm, as long as the judge discloses the relationship and the parties consent. The judge would not have to disclose that a nephew is a lessee of a partner in the firm. The judge's spouse (a receptionist in the judge's son's law firm) may handle client files as long as the spouse does not handle files assigned to the judge. The judge would not have to disclose the fact of the spouse's employment in the son's law firm. [The judge's disclosure obligations would be governed by the Canons of Judicial Conduct.] 3/15/1985
0881

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7-Family Conflicts

19-Judge Conflicts

A lawyer may not appear before a judge (or take part in any case assigned to the judge) employing the lawyer's spouse as clerk if the spouse is involved in the matter or proceeding. 5/1/1987
0368

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19-Judge Conflicts

A lawyer may not purchase the work in progress of a lawyer who has just become a judge, and may not lease office space from the judge if the lawyer plans to practice before the judge. 4/23/1980
0826

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer may not represent a client before a local health department if it is merely an extension of a state health department or health regulatory board for which the lawyer sits as a part-time hearing officer. 10/15/1986
0617

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer may not represent a party in a special education due process hearing when the lawyer's partner is the presiding hearing officer, although the lawyer may do so if the partner was a presiding hearing officer on other cases. 10/24/1984
0737

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A lawyer may not serve as a Commissioner in Chancery in a divorce action in which the defendant is a sitting judge in that circuit. 11/1/1985
0791

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19-Judge Conflicts

A lawyer may not serve as a court-appointed lawyer in a commitment proceeding when the Special Justice hearing the case is the lawyer's landlord. 5/1/1986
0686

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19-Judge Conflicts

A lawyer may represent a defendant in a civil suit involving a traffic accident even though the lawyer's partner acted as a substitute judge in the traffic case (the law firm is not disqualified, because Canon 9 contains no imputed disqualification rules). [Rule 1.11 would now allow an "ethics screen" in this circumstance.]5/30/1985
0520

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19-Judge Conflicts

20-Government Official Conflicts

73-Family Law Lawyers

A lawyer may represent a wife in a personal injury case against her husband even though the lawyer's partner (sitting as a substitute judge) found the husband guilty of a traffic violation. 5/16/1983
0500

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer may serve on the Board of Zoning Appeals while acting as a General District Court substitute judge, because the court has no jurisdiction over Board of Zoning Appeals matters. 11/8/1982
0632

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer occasionally serving as a hearing officer may not represent a client before a state agency in a proceeding involving the same subject matter on which the lawyer serves as a hearing officer for the agency. 12/3/1984
0476

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer serving on a county's Board of Supervisors may not sit as a substitute judge. 10/4/1982
0422

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19-Judge Conflicts

A lawyer who represents a judge may not accept court-appointed cases from any judge in the same circuit (given the appearance of impropriety and the suggestion that the lawyer is receiving a favor), but may represent other clients as long as the clients and their adversaries consent after full disclosure. 8/14/1981
0583

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer who serves as a hearing officer in special education due process proceedings may not appear as an advocate in such hearings. [This LEO was superseded by LEO 847.]5/31/1984
0883

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19-Judge Conflicts

20-Government Official Conflicts

A lawyer who serves as a Virginia special education hearing officer may also serve as a consultant to a private association in Maryland as long as there is no overlap between their jurisdictions. 4/1/1987
0845

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7-Family Conflicts

19-Judge Conflicts

28-Law Firm Staff

A lawyer whose office administrator is married to a judge may appear before the judge, but may have to disclose these facts on the record. 2/27/1989
1023

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12-Withdrawing Lawyers (Including Non-Compete Issues)

19-Judge Conflicts

A lawyer-turned-judge may continue to receive contingency payments from the judge's former firm. 1/22/1988
0433

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19-Judge Conflicts

A portrait of a retired judge may be placed in the courtroom or elsewhere in the courthouse even if the retired judge now practices as a lawyer in the courthouse, although it would be "more tasteful" to place the portrait in a spot other than the courtroom. 10/16/1981
0624

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7-Family Conflicts

9-Government Lawyer Conflicts

19-Judge Conflicts

51-Government Attorneys

An Assistant Commonwealth's Attorney whose husband is a judge may not appear before her husband or have any role in any cases assigned to her husband. 11/13/1984
0502

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19-Judge Conflicts

Even though a retired judge may not appear as counsel in any state court (under an old Virginia law), lawyers associated with the retired judge are not barred from practicing. 3/10/1983
ABA-452

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19-Judge Conflicts

Judges may participate in fundraising activities on behalf of "therapeutic" or "problem solving" courts, but must comply with all of the Model Judicial Code's limitations on fundraising and other activities. For instance, judges may not sign solicitation letters, but may appear on the letterhead of a not for profit organization (presumably including letterhead used in fundraising letters). Although judges would not automatically have to disqualify themselves from matters in which one of the lawyers contributed to such an organization, the judge would have to consider such disqualification (taking into account "both the size and the importance of contributions known by the judge to have been made by lawyers or parties who come before her"). Judges may endorse such organizations "only when it is clear that no political or business profit making interest is involved."10/17/2008
ABA-462

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19-Judge Conflicts

39-Miscellaneous

Judges may participate in social networking sites, but must be cautious to avoid violating judicial ethics provisions, including those prohibiting, among other things: impropriety and the appearance of impropriety; ex parte communications with litigants; certain election activity; public or certain private statements about pending cases or public policy issues.2/21/2013
ABA-470

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19-Judge Conflicts

Judges may send generic and widely-circulated letters encouraging lawyers to engage in pro bono work.5/20/2015
1730

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19-Judge Conflicts

43-Conflicts of Interest - Miscellaneous

Lawyers who represent judges may discount their fees as a professional courtesy if they would do the same for other friends and colleagues. A lawyer appearing before a judge that the lawyer is representing faces a conflict of interest [the Bar does not indicate how to resolve the conflict, but presumably the parties may consent to the judge's handling of the case upon full disclosure.] 3/26/1999
1548

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19-Judge Conflicts

48-Criminal Defense Lawyers

The Bar declines to indicate whether a lawyer may contract to collect unpaid fines and costs in criminal cases when one of the lawyer's partners is a substitute judge in the same jurisdiction, because the Bar cannot interpret the rules of judicial ethics.8/12/1993
1624

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10-Former Government Lawyer Conflicts

19-Judge Conflicts

The Bar declines to state whether a federal judge was obligated to reveal that a lawyer appearing before the court had served as the judge's law clerk three or four years ago. Because the current case was unrelated to any matter on which the lawyer assisted the judge while a clerk, the lawyer was not obligated to disclose the earlier clerkship. 2/7/1995
0552

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19-Judge Conflicts

The Canons of Judicial Conduct govern the permissibility of a lawyer appearing before a judge when one of the lawyer's partners and the judge jointly own real estate. [This LEO was reaffirmed in LEO 1034.]4/17/1985
1034

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11-"Of Counsel" Relationship

19-Judge Conflicts

20-Government Official Conflicts

55-Firm Names and Letterhead

The Canons of Judicial Conduct govern the permissibility of a lawyer appearing before a judge who was formerly a partner in the law firm (reaffirming LEO 552). It is improper to list a Congressman (who is precluded from the practice of law) as "of counsel" to a law firm. 2/9/1988

Copyright 2000, Thomas E. Spahn