2014-16 (Emergency Staff Opinion issued September 5, 2014)
Post-Retirement Employment; Rules 1.2 and 1.3
Issue: May a Judicial Official, after giving notice to the Chief Justice and the Governor of the Judicial Official’s intention to retire, but prior to the effective date of the Judicial Official’s retirement, disclose that he/she is planning to retire and has arrangements in place to enter the private practice of law? The Judicial Official’s disclosure would not provide any additional specifics, such as where, with whom, or the nature of the law practice.
The inquiring Judicial Official noted that unlike in JE 2008-08, the Judicial Official will not solicit future employment (the Judicial Official already has specific arrangements in place), and unlike in JE 2010-03, the Judicial Official will not have his or her name listed with any private alternative dispute resolution service, will not advertise in newspapers and will not advise attorneys of the type of services the Judicial Official will perform once in private practice.
Response :This inquiry was circulated among the Committee members and their input solicited. Rule 1.2 of the Code states that a judge “should 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 of the Code state a judge “shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.” Comment (2) states that a judge “may provide a reference or a recommendation for an individual based upon the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if the use of the letterhead would not reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”
Based on the facts presented, including that the Judicial Official does not seek to disclose the name or location of the firm or the nature of the law practice, the Judicial Official was advised by staff counsel that he/she may publicly disclose his/her plans to retire and enter the private practice of law after giving notice to the Chief Justice and the Governor, but not prior to leaving the bench. In reaching this decision,
Massachusetts CJE Opinion No. 2008-5 and Florida Judicial Ethics Advisory Opinion 2010-35 were considered.
Committee on Judicial Ethics