Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion:
12/06/2006
Opinion Number:
06-01
Title:
LAWYERS: AMENDING FORMAL OPINIONS 89-50 and 93-36. PRACTICING BEFORE JUDGE FORMER MEMBER
Opinion:
At the request of the judiciary, the Committee was asked to revisit our previous opinion which prohibits a lawyer or the lawyer's law firm from appearing before a judge who, within the past year, the lawyer had practiced law either in private or public practice. In Opinion 93-36 we recognized that in some narrow situations a one-year blanket prohibition could work a hardship on the bench and bar. Consequently we modified our position so as to allow appearances after full disclosure and written consent of all parties and counsel. We are now asked to further extend the exception in situations described below.
Unlike continental Europe which has separate and distinct career paths for legal and judicial professionals, the Anglo-American justice system enjoys a consolidated career path. The strength of our system lies in the fact that members of the Bar who have distinguished themselves by education, training and experience will often take the opportunity to serve the public by taking a judicial appointment. They bring with them a wealth of experience. This consolidated system has served us well for hundreds of years. But it is not without some practical problems.
It will inevitably occur that a case will be assigned to a judge who has had a previous professional relationship with a lawyer who is involved the case. Depending upon the judicial rotation system that is used, a lawyer may not know in advance of a judicial assignment. When cases are assigned to a judge with whom the lawyer had previously practiced, the better practice is always to have the case reassigned. Unfortunately experience has shown that this is not always practical.
The problem becomes more pronounced in situations where the judge, as a practicing lawyer, came from public sector such as a public defender or county attorney or where both the judge and lawyer or law firm are in sparsely populated counties with few lawyers or judges. Depending upon the judicial district and the availability of judicial resources, case re-assignment may not be feasible.
In Opinion 89-21 we adopted the reasoning of the Eighth Circuit in
U.S. v. Hollister
, 746 F.2d 420 and attempted to provide guidance to bench and Bar by providing for a two-year time limit wherein such appearance would be prohibited. However we attempted to build an exception in the event of judicial or client hardship. That opinion was quickly amended by Opinion 89-50 to reduce the two-year period to one year. Opinion 89-50 was again modified by Opinion 93-36 carving out an exception for hardship as it concerns county attorneys and public defenders, providing they obtain written consent upon full written disclosure. Our attention is now called to the fact that in some situations consent or disclosure is not always possible.
With the above in mind, we accept the invitation to modify Opinions 89-50 and 93-36. In doing so we start from the proposition that the public is entitled to a judiciary that is both in fact and appearance fair and impartial. It is beyond dispute that litigants locked in the midst of battle, knowing that the judge had a previous professional relationship with either their or their opponent's lawyer, would view the playing field as tilted. No matter how minor the matter or how fair the judge, such a view is the antithesis of an impartial judiciary. As explained above judicial reassignment is not always possible. Further, a prohibition for a period of time has proved to be unworkable in many situations. Full disclosure and consent would appear the logical method of resolving the dilemma, but, upon close inspection, it too has severe limitations.
Full disclosure and consent works well when the parties and counsel are identifiable and able to give consent. Unfortunately many extremely serious judicial decisions are properly made ex parte without the presence of adverse party or counsel and in situations where judicial reassignment would be impractical. Time is frequently of the essence and the matter sensitive as, for example, the issuance of a search warrant, restraining order, preliminary injunction, commitment order or a host of other orders and writs. And therein lies the rub. The more critical and sensitive the ex parte matter, the more "partial" the justice would appear when meted out by a prior partner of the opposing lawyer. Clearly a solution must be found for these situations that will allow for the efficient and effective administration of justice in such a manner that will minimize the risk of partiality or the appearance thereof.
With the above in mind, the Committee gives the following guidelines to the Bench and Bar:
1. During the period of one year from and after judicial appointment, a lawyer may not appear before a judicial officer with whom the lawyer has previously practiced law without making full disclosure of that fact on the record to opposing parties and counsel. Objections raised by opposing counsel or parties shall be handled by the judicial officer in accordance with the prevailing rules of court relating to judicial recusal.
2. During the period of one year from and after judicial appointment, in those situations where consent cannot be obtained, such as where the opposing party is unknown or where an
ex parte
order would be appropriate, lawyers should avoid appearing before a judicial officer with whom they have previously practiced law. In those situations the lawyer should attempt to present the matter to another judicial officer. Where this is not possible or practical, either by operation of time or the emergency nature of the situation, the
ex parte
order should be accompanied by the lawyer's written professional statement. The professional statement should disclose the prior professional relationship and give a factual recitation as to why it was not possible or practical to present the matter to another judicial officer. It is anticipated that before issuing the
ex parte
order the judicial officer would examine the professional statement and make a written finding consistent with prevailing rules of court relating to judicial recusal.
3. In applying the above, due deference should be given to the Code of Judicial Conduct, Canon 2B, 3C and 3D.
For the Committee:
NICK CRITELLI,
Chairman
Committee on Professional Ethics and Standards
Iowa State Bar Association