2013-34 (August 6, 2013)
Compensation; New Judge; Transition to the Bench; Disclosure/Disqualification
Rules 1.2, 1.3 & 2.11
Issue: Prior to a Judicial Official’s appointment to the bench, the Judicial Official referred several cases in which the Judicial Official represented the plaintiff to another attorney. The successor counsel has now obtained a judgment in one of these referred cases and will be submitting a motion for payment of attorney’s fees to the court for approval. The motion will include a claim on behalf of the Judicial Official for attorney’s fees, as well as the successor counsel’s claim for attorney’s fees for the time spent and work performed on the case. May the Judicial Official prepare and sign an affidavit regarding the time spent and work he or she performed on the case and the hourly rate requested?
Discussion: Rule 1.2 of the Code of Judicial Conduct provides that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Rule 1.3 prohibits a Judicial Official from using the prestige of office to advance the Judicial Official’s personal or economic interests.
Rule 2.11 states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”
Based on the Committee’s prior informal opinions in JE 2008-19, JE 2008-19A, JE 2013-08 and Emergency Staff Opinion JE 2012-20, the Committee unanimously determined that it is ethically permissible for the Judicial Official to prepare and sign the affidavit and accept payment, subject to the following conditions:
- The amount to be paid should reasonably reflect the time spent and work performed;
- Full disclosure should be made to the client;
- The Judicial Official should not refer to his or her judicial position in the affidavit;
- The Judicial Official should consider whether the decision to accept payment may necessitate the Judicial Official’s disqualification to hear matters in the future involving the client or the attorney to whom the case was referred. The Judicial Official may inquire further of the Committee with regard to disqualification in the event the situation arises.
Committee on Judicial Ethics