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鈥橲 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 93-26
Lawyer A is a former family court judge who, while on the bench, approved and adopted as the order of the court a separation agreement presented to him by the attorneys for both parties. The approval of the agreement was routine, and there was no inquiry by the judge into the merits of the case. Since resigning from the bench and resuming private practice lawyer A has been retained by one of the parties to that action concerning an alleged violation of the agreement by the other party.
Question:
Does Rule 1.12 of SCACR 407, allow lawyer A to represent one party in a dispute over an alleged violation of the order entered by that lawyer when he was a family court judge?
Summary:
Rule 1.12 does not allow lawyer A to represent a party in a dispute over an alleged violation of an order entered by the lawyer when he was a family court judge unless all parties to the proceeding consent after disclosure.
Opinion:
Rule 1.12 provides 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." It is 91黑料爆料ar that the judge participated "personally" in the matter since he signed the order. To determine whether he would be disqualified from representing the client, however, it must be determined whether his participation was "substantial." Another state considering this general question has concluded that a former judge's participation in a matter was not substantial when his only involvement was to place his initials alongside a notation that a case was continued. [Alabama Opinion 87-32 (3/13/87)] On the other hand, a judge's participation was found to be substantial when he made preliminary findings of probable cause in the client's earlier criminal trial. [Iowa Opinion 89-52 (5/11/90)] The committee has found no other opinion interpreting Rule 1.12 in which a former judge's only involvement in a prior matter was limited to the entry of a consent order.
The committee believes that lawyer A's participation in this matter was "substantial" because it involved the entry of an order on the merits in the case. The committee notes that the order was presented to him by both parties and it did not involve any matters as to which there was a dispute. Nevertheless even when entering a consent order the court is deemed to have sanctioned the agreement of the parties. Johnson v. Johnson, _S.C._, 425 S.E.2d 46 (1992). Therefore the judge was performing a substantial judicial function in approving the agreement and entering the order of the court. For these reasons, absent consent by all parties after full disclosure, the committee concludes that lawyer A may not represent a party in this matter.