Things former judges can and can’t do.

(Edited on June 4 to fix very embarrassing mistaken reference to the wrong RPC.  Twice.  Thanks to Roy Simon for pointing out the mistake.)

There are some pieces of the attorney ethics rules that it almost seems like there is never an organic opportunity to write about them.  RPC 1.12(a) regarding restrictions imposed on someone who previously was a judge but then returns to the practice of law is one of those rules.

But, lo and behold, there now is a development that is both local to my state and in the national news that provides an organic opportunity to discuss.  The ethics nerd in me rejoices.

Of course, often times the reason there aren’t many organic opportunities to discuss a particular rule or its application can be because there is not much that can be said about the rule beyond what it says.  RPC 1.12(a) happens to be one of those rules.

Here’s what it sets out in Tennessee:

(a) Except as stated in paragraph (d), 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 give informed consent, confirmed in writing.

What it indicates it restricts is quite plain and relatively straightforward.  For example, if someone had served as a federal judge and been involved in sentencing a defendant, then left the bench to resume private practice with an explanation that he no longer wanted to have to impose the kind of sentences required as mandatory minimums, and then an appellate court reversed the judge’s sentencing determination, that former judge could not turn around and take that defendant on as a client with respect to further proceedings.

So, for example, if in a very weird set of circumstances, the defendant had actually been released from prison, returned to society, and appeared to have turned his life around, but, as a result of the appellate ruling, now looks like he has to be pulled from his life and returned to prison, the former judge could not become the attorney for the defendant and undertake representation in the continuing proceedings unless all involved, not just the defendant but the prosecutors gave written consent to the participation.  The mere fact that the situation is treated as one that should be consentable is, itself, pretty interesting from a public policy perspective.

What the rule does not prohibit, however, is really anything else not involving representation of a client in the matter.  So, it would not prohibit that former judge from going on television and advocating as to how that defendant should now be treated.

Pretty fascinating sometimes to actually mull over where some lines are drawn in the ethics rules.  If the concern is the appearance of the situation, then it would be a curious place to split the hairs, but if the concern is the idea that the former judge in such a situation might use their access to information learned in a judicial capacity in a later capacity as an attorney of record in a matter, then where the lines are drawn (and the fact that the parties to the proceeding can bless the involvement) makes sense.

 

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