ABA-449
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| 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." |