Ethics Opinion 1064

By Committee on Professional Ethics

GAVEL17

New York State Bar Association

Committee on Professional Ethics

Opinion 1064 (7/10/15)
Topic: Former Judge; Conflicts
Digest: A lawyer who is a former family court judge is prohibited by Rule 1.12(a) from privately representing a client in a permanent neglect action when the same client appeared before the judge in a previous neglect action and the judge issued an order “upon the merits” to put the subject child in foster care.  For the same reason, the former judge is prohibited by Rule 1.12(a) from privately representing a client in a proceeding to modify child support when, as a judge, he or she issued orders upon the merits related to custody and visitation in the same matter and custody and visitation issues will be revisited as part of the application to amend child support.  A conflict arising under Rule 1.12(a) cannot be waived even with consent of all parties.  However, the Rule 1.12(a) conflict is not imputed to other members of the lawyer’s firm if the firm acts promptly and reasonably to implement certain screening measures and no other circumstances in the particular representation create an appearance of impropriety.
Rules: 1.0(l); 1.12(a); 1.12(d)

FACTS

1. The inquirer is a retired Family Court Judge and Acting Supreme Court Justice who is now in private practice.  A client has asked the inquirer to undertake representation in a permanent neglect action (“permanent neglect action”) involving the client’s two children.  Approximately two years ago, the client made one appearance before the inquirer as a judge in a neglect case (“neglect action”) involving one of the client’s two children in this same permanent neglect action.  The inquirer as judge issued one consent order where the parties before him, including the person who is now his client, stipulated to put the subject child in foster care.  The inquirer was the emergency judge that week and the assigned judge was unavailable.  Recently, the Department of Social Services (“DSS”) filed a petition seeking to terminate the client’s parental rights.
2. Separately, the inquirer has been asked to represent an individual (the “Potential Client”) in a pending child support proceeding (“support proceeding”) in Family Court.  The inquirer, as a judge, rendered multiple decisions over a period of two to three years concerning custody and visitation of the Potential Client’s children.  The inquirer did not issue any orders regarding child support.  The non-custodial parent is now attempting to reduce the support award.  As a result of the issues raised by the non-custodial parent, the custody/visitation orders issued by the inquirer as judge will now be revisited in the child support determination.

QUESTION

3. a.  May a lawyer ethically represent a client in a permanent neglect action when the client previously appeared before the inquirer, who was then sitting as a family court judge in a neglect proceeding, where the inquirer issued a stipulated order to put the subject child in foster care?
b.  May a lawyer ethically represent a client in a child support proceeding (the “support proceeding”) when the inquirer, as judge, issued numerous orders related to custody and visitation that will now be revisited as part of the child support determination?

OPINION

4. Former judges are governed by Rule 1.12 of the New York Rules of Professional Conduct (the “Rules”).  Rule 1.12(a) provides:

    (a) A lawyer shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity.

5. A conflict under Rule 1.12(a) is a non-waivable conflict. A lawyer who has such a conflict must be disqualified from the representation, regardless of consent from the client or the adversary. See Rule 1.12, Cmt. [1] (“A former judge or adjudicative officer may not, however, accept private employment in a matter upon the merits of which the judge or adjudicative officer has acted in a judicial capacity and – unlike conflicts for lawyers who have acted in a capacity listed in Rule 1.12(b) – a conflict arising under paragraph (a) cannot be waived.”).
6. In order to analyze a former judge’s obligations under Rule 1.12, it is necessary to define three terms used in the Rule – “judicial capacity,” “matter” and “merits.”

“Judicial Capacity”
7. According to Rule 1.12, Cmt. [1], a lawyer acts in a “judicial capacity” within the meaning of paragraph (a) when the lawyer “serves as a judge or other adjudicative officer.”  However, a judge or adjudicative officer “is not prohibited from acting as a lawyer in a matter where he or she exercised remote or incidental administrative responsibility that did not affect the merits.”
8. Comment [1] to Rule 1.12 thus distinguishes between a former judge who has exercised remote or incidental administrative responsibility in a matter that did not affect the merits and a former judge who has acted in a judicial capacity that did affect the merits of a matter.  A judge who acted on the merits in the matter is prohibited by New York Rule 1.12(a) from representing a client whether or not the judge participated “personally and substantially” in the matter.  This Rule is different from New York’s Rule 1.11(a) – applicable to a former government lawyer — and ABA Model Rule 1.12(a) – applicable to a former judge – both of which require personal and substantial participation in the matter.

“Matter”
9. In order to determine whether a Rule 1.12(a) conflict exists in this inquiry, we must consider the definition of “matter,” and whether the new representations are part of the same “matter.”  Under the definition in Rule 1.0(l), the term “matter” includes:

any litigation, judicial or administrative proceeding, case, claim, application, request for a ruling or other determination, contract, controversy, investigation, charge, accusation, arrest, negotiation, arbitration, mediation or any other representation involving a specific party or parties.

10. Some guidance can be obtained from the comments to Rules 1.9 and 1.11 and the prior ethics opinions of this Committee.
11. The term “matter” is discussed in the comments to both Rule 1.9 and Rule 1.11.  Comment [2] to Rule 1.9 states in part that “the scope of a ‘matter’ for purposes of this Rule depends on the facts of a particular situation or transaction.”  Comment [10] to Rule 1.11 provides:

… [A] “matter” may continue in another form.  In determining whether two particular matters are the same, the lawyer should consider the extent to which (i) the matters involve the same basic facts, (ii) the matters involve the same or related parties, and (iii) time has elapsed between the matters.  [Emphasis added.]

Several of our prior opinions have followed these “facts, parties, and time” tests.  See N.Y. State 1029 (2014) (discussing the facts, parties and time tests); N.Y. State 904 (same underlying conduct was not, on its own, sufficient to constitute the same “matter”; rather, the extent of a matter depends on a variety of factors, including whether two matters involve the same underlying events, the same or related parties, the same underlying events or related issues, and whether the matters are ongoing at the same time or close in time).
12. In N.Y. State 1047 (2015), the Committee stated: “Although the Definition Section of the Rules contains a definition of ‘matter,’ it does not define the scope of a single matter, but rather lists more than a dozen different types of matters that are included within the term.  See Rule 1.0(l).”
13. In N.Y. State 800 (2006) we provided examples of matters that are heard in the Family Court: “The Family Court hears matters involving children and families, including child protective proceedings, adoption, custody and visitation, support, family offense, guardianship, delinquency, paternity, persons in need of supervision (PINS), and foster care approval and review.” See also N.Y. State 894 (2011) (“Rule 1.0(l) defined ‘matter’ to include a claim or controversy as well as a proceeding.”).
14. Applying the facts, parties and time tests to the neglect action and the permanent neglect action, the neglect and the permanent neglect actions appear to be the same matter for purposes of Rule 1.12(a). In terms of “facts,” the same underlying events or alleged actions setting forth the grounds for neglect and permanent neglect may be present. Regarding the parties, the client, DSS and the other parent are the same in both the neglect and the permanent neglect proceedings. Regarding time, the petitions are not ongoing at the same time or close in time, but we understand that a permanent neglect petition will typically be commenced after there has been an initial finding of neglect, and that the neglect finding is often referenced in (and a basis for) the permanent neglect petition.  These factors taken together suggest that the neglect and permanent neglect actions are the same matter for purposes of Rule 1.12(a).
15. Applying the facts, parties and time tests to the support proceeding and the custody/visitation proceeding, while the parties are the same, at first blush, facts would appear to be different because the judge rendered decisions involving custody and visitation, and not child support.  However, we are told that the custody and visitation issues will be revisited in determining the application for reduced child support due to allegations raised by the non-custodial parent.  Finally, while at least three years have passed since the former judge’s earliest involvement with the custody/child support proceeding, it seems clear that modifying an order in a prior proceeding constitutes part of the same proceeding.

“Merits”
16. The term “merits” is not defined in the Rules, and neither New York courts nor New York ethics opinions have interpreted the term “merits” in the context of Rule 1.12. However, New York courts have interpreted the term “merits” in the context of the doctrine of res judicata, which operates only if there has been a judgment “on the merits.” For example, in Pizzuto v. Soriano, 2011 WL 1991964, 2011 NY Slip Op 31287(U) (Sup. Ct. Richmond County 2011), the court said:

The word “merits”, as a legal term, has acquired no precise technical meaning and admits to some latitude of interpretation, but is to be regarded as referring to the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself and from all matters which depend upon the discretion or favor of the court.

(citing Mink v. Keim, 266 AD 184, 186 (1st Dept. 1943); reversed on other grounds, Mink v. Keim, 291 NY 300 (1943)).  In our opinion, that definition is too narrow for Rule 1.12, which should be read to encompass any decision affecting the legal rights of the parties, whether based on substantive law, procedural rules, or matters depending on the court’s discretion. Here, we believe that approving a consent order constitutes a determination of the legal rights of the parties, and thus is acting “on the merits.”

Interpretations of “On the Merits” in Ohio
17. Our conclusion is supported by authority from another state.  The Ohio Board of Commissioners on Grievances and Discipline (“Board of Commissioners”) in its Opinion 2005-5 (2005) held that “a divorce or dissolution and any subsequent post-decree matters (such as a modification of child custody, parenting time, child support or defending or initiating a contempt order to enforce a prior court order) are the same matter for purposes of DR 9-101(A) [the predecessor to Rule 1.12].”  The Board of Commissioners concluded that it was “improper under DR 9-101(A) of the Ohio Code of Professional Responsibility for a former magistrate, now privately practicing law, to represent a person in post-decree matters (such as modifying child custody, parenting time, or child support, or defending or initiating a contempt order to enforce a prior court order) when he or she served as magistrate in the person’s original divorce or dissolution action.” After noting that “the words ‘matter’ or ‘merits’ were not defined in the Ohio Code of Professional Responsibility,” the Board of Commissioners turned to Ohio caselaw.  In Disciplinary Counsel v. Christ, 74 Ohio St.3d 308 (1996), a former judge had received a public reprimand for violating DR 9-101(A) when, seven years after granting an uncontested divorce as judge, he privately represented one of the parties to the divorce, filing a Motion to Modify Parental Rights and Responsibilities on the client’s behalf.  When he was charged with violating DR 9-101(A), the former judge argued that his judicial involvement in the uncontested divorce had been limited to signing the final judgment, an act which the judge considered “perfunctory” rather than “on the merits.”  However, the Board of Commissioners concluded that the judge had violated DR 9-101(A) because he “did act in his official capacity as a judge, [he] signed the entry, and . . . seven years later [he] represented one of the litigants in a  . . .  Motion to Modify custody in the same case.”  Id at 309.
18. Although the Ohio Code of Professional Responsibility has been superseded by the Ohio Rules of Professional Conduct, Opinion 2005-5 is instructive because the language under the Ohio DR 9-101(A) is substantively identical to the language in New York Rule 1.12(a): “A lawyer shall not accept private employment in a matter upon the merits of which he (she) has acted in a judicial capacity.”

Screening the Former Judge to Avoid Imputed Disqualification
19. If Rule 1.12(a) disqualifies a former judge from representing a private client, the other lawyers in the firm may nevertheless work on the matter if they are properly screened pursuant to Rule 1.12(d). Rule 1.12(d) provides as follows:

(d) When a lawyer is disqualified from representation under this Rule, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the firm acts promptly and reasonably to:

 (i) notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;

 (ii) implement effective screening procedures to prevent the flow of information about the matter between the personally disqualified lawyer and the others in the firm;

(iii)  ensure that the disqualified lawyer is apportioned no part of the fee therefrom; and

(iv) give written notice to the parties and any appropriate tribunal to enable it to ascertain compliance with the provisions of this Rule; and

(2) there are no other circumstances in the particular representation that create an appearance of impropriety.

In order for the former judge’s firm not to be disqualified, the firm must timely and effectively screen the former judge pursuant to Rule 1.12(d)(1), and must also consider whether the circumstances give rise to any appearance of impropriety pursuant to Rule 1.12(d)(2).
20. Whether the inquirer would violate the Code of Judicial Conduct or any applicable statutes and regulations is beyond the jurisdiction of this Committee.  We therefore do not discuss requirements in any of those sources that might apply to the inquiry here.

CONCLUSION

20. A lawyer who is a former family court judge is prohibited by Rule 1.12(a) from privately representing a client in a permanent neglect action when the same client appeared before the judge in a previous neglect action and the judge issued an order “upon the merits” to put the subject child in foster care.  For the same reason, the former judge is prohibited by Rule 1.12(a) from privately representing a client in a proceeding to modify child support when, as a judge, he or she issued orders upon the merits related to custody and visitation in the same matter and custody and visitation issues will be revisited as part of the application to amend child support.  A conflict arising under Rule 1.12(a) cannot be waived even with consent of all parties.  However, the Rule 1.12(a) conflict is not imputed to other members of the lawyer’s firm if the firm acts promptly and reasonably to implement certain screening measures and no other circumstances in the particular representation create an appearance of impropriety.

(21-15)

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