1999-03

QUESTION:

The City of ABC has a full-time municipal court judge.
I am one of four (4) attorneys designated by the City
Council to serve as a substitute judge on the rare
occasions
when the full-time judge is on vacation, or is otherwise
unavailable. We are paid by the hour. To the best of my
memory, I have been asked to substitute on three or four
afternoons and one or two morning sessions over the past
year.

Once I was designated a substitute judge, I stopped
taking any city court cases. My question, however, is
whether my designation as a substitute judge on this rare
basis would disqualify other members of my firm from
representing city court clients? We obviously check before
I substitute to ensure that no one has a case on the same
day.

ANSWER:

The Rules of Professional Conduct allow your law
partners to represent criminal defendants in municipal
court, even though you serve as a substitute municipal
court
judge, provided that the matters wherein your law partners
represent these criminal defendants are completed unrelated
to those wherein you presided as a substitute judge.

DISCUSSION:

The Disciplinary Commission, in RO-91-18, dealt with
the issue of whether a lawyer was prohibited from
representing applicants before a state agency licensure
board where that lawyer’s partner served as a hearing
officer. The Commission held that the lawyer could
represent applicants before this same licensure board
even though the lawyer’s partner served as a hearing
officer for that same agency, provided that the
representation involved matters completely unrelated to
those in which the partner presided as a hearing officer.
Quoting from RO-89-115, the Commission determined that if
the matters are unrelated, representation would not be
prohibited subject to consent by both parties involved, and
the attorney’s determination that he could render undiluted
and vigorous representation to the client.

In RO-84-190, the inquiring attorney served as a
municipal judge. The lawyer had been contacted by a police
officer of that same municipality, concerning possible
representation of him in a criminal case in circuit court.
The case arose out of the shooting and killing of a suspect
while fleeing from police officers, one of whom was the
lawyer’s prospective client.

The Disciplinary Commission determined that there
would
be no ethical impropriety in the lawyer representing the
police officer should he be indicted, and in representing
the city should a civil suit be filed against the city by
the personal representative of the slain man if, in the
capacity as a municipal judge for that same city, the
lawyer
did not and would not act upon any facet of the merits
concerning the possible indictment or civil suit against
the city.

Acknowledgment is made of Rule 1.10(a) of the Rules of
Professional Conduct which states:

“Rule 1.10 Imputed Disqualification:
General Rule

(a) While lawyers are associated in a firm, none of
them shall knowingly represent a client when any
one of them practicing alone would be prohibited
from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.”

However, the Disciplinary Commission interprets this
rule to apply to general conflicts questions and issues,
since the rules specified in 1.10(a), with the exclusion of
Rule 2.2, deal with conflict of interest.

While there would obviously be a conflict in your
handling representation of criminal defendants in municipal
court wherein you preside from time to time as a substitute
municipal judge, such a conflict would appear to be more
personal in nature, rather than firm-wide and thus not
imputed to your law partners.

Due to the personal nature of this conflict, and the
conflict not being imputed to your remaining law partners,
your law partners are therefore not prohibited from
representing criminal defendants in the same municipal
court
where you, from time to time, preside as substitute judge,
provided that the matters being handled by your law
partners
are in no way related to those matters which are presided
over by you in your capacity as substitute judge.

The Disciplinary Commission would also encourage you
to
disclose to the governing body of the municipality that
employs you in this substitute municipal court judge
capacity that your law partners will continue to represent
criminal defendants in municipal court, but only in those
cases in which you have absolutely no connection or
participation.

This determination is consistent with a previous
decision of the Disciplinary Commission, specifically,
RO-93-12, wherein the Commission determined that a lawyer
could represent clients before a state agency even though
that lawyer’s partner served as a hearing officer for the
agency, provided that the lawyer’s representation involved
matters completely unrelated to those in which the partner
presided as a hearing officer. The Commission relied upon
Opinion 1990-4 of the Committee on Professional Ethics of
the Association of the Bar of the City of New York which
had held that a lawyer or members of his firm could not
represent claimants before a Commission for whom the lawyer
served as an administrative law judge or a mediator. The
qualification was that the lawyer served frequently and
repeatedly as a part-time administrative law judge for this
agency. On the other hand, the opinion also held that the
lawyer and members of his firm would be allowed to represent
claimants before this same commission if the lawyer served
only occasionally and sporadically as a judge pro tempore.

The Commission also pointed out, consistent with other
opinions and provisions of the prior Code of Professional
Responsibility, that the frequency of a lawyer as a
part-time judge or administrative hearing officer would
dictate whether that lawyer or his law partners could
represent clients before those same agencies or boards.

The Commission would reference Rule 8.4 which
concludes
that it is professional misconduct for a lawyer to state or
imply an ability to influence improperly a government
agency
or official. Pursuant to this provision, the Commission
obviously considers the frequency of appearance as
administrative law judge or hearing officer a primary
factor
in determining whether the law partners of such a hearing
officer or substitute judge could represent clients before
the same agency or tribunal.

Absent such frequency, the Commission is of the
opinion
that your infrequent service as substitute municipal court
judge does not prohibit your remaining law partners from
handling cases for clients appearing in this same court
provided that you are in no way involved in or connected
with said proceedings.

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