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Opinion 130

A newly appointed judge, upon withdrawing from his former firm, has arranged for them to pay him certain guaranteed payments over a 13 month period, plus a percentage of fees generated in certain contingent fee cases being handled by the firm, and he has asked for an Advisory Opinion as to whether, in addition to disqualifying in any cases in which his former firm was employed prior to his assuming the duties of office –

(1) He should disqualify from hearing future cases involving his former partners because of the aforesaid guaranteed payments and contingent fee interest, and,

(2) If not, would he, in the trial of such cases, be under any duty to disclose such guaranteed payments, or such contingent fee interest.

The first question above set forth was addressed in Opinion No. 49, in which the Commission concluded as follows:

The Commission is of the opinion that standing alone the fact of the existence of an indebtedness due by the lawyer arising out of the isolated transaction of his purchase of the assets of the law firm would not mandate that the judge disqualify himself in cases in which the lawyer was acting as counsel for one of the parties. However, even though the circumstances as described herein would not objectively and normally require a conclusion that the judge’s impartiality might reasonably be questioned, it is possible to conceive of a combination of circumstances, including a substantial indebtedness, a lawyer-debtor in financial straits, and litigation of such nature that the lawyer, if his client prevails might expect to receive a very large fee, which might cause the outcome of the litigation to have a rather direct effect on the timely payment of the indebtedness. It would, of course, be in order for the judge to excuse himself, if in his own mind he entertained any reasonable doubt as to his ability to preside impartially, or if he believed, that under the circumstances involved, his impartiality might be reasonably questioned by others.

From this it is clear that, assuming the amount of the guaranteed fee and the contingent fees are fair and the term of payment is as short as is reasonably possible, the existence of such a debt, arising from an isolated transaction, would not, standing alone, require a judge to disqualify himself, merely because his former partner was of counsel to one of the parties.

Nevertheless, the judge should not be unmindful of the fact that, if in his own mind he entertains doubt as to his impartiality, or, if he believes that under the circumstances his impartiality might reasonably be questioned by others, it would remain his duty to recuse himself.

As to the second questions above set forth, the Commission is of the opinion that, so long as the indebtedness is outstanding, the judge must make full disclosure in order that the parties may make an informed judgment with respect to the existence of any potential disqualification.

The judge next asks this Commission for an Advisory Opinion as to whether his spouse who works as a sales representative for a chemical manufacturer and sells in a territory which includes counties in his judicial circuit should be required to discontinue selling to counties, or departments of counties, in the circuit in order to avoid any inference that such sales are related to the influence of the office.

The question as propounded is beyond the jurisdiction of this Commission, and for that reason the Commission must decline to undertake to answer it except to say that the solution suggested may well be beyond the authority of the court, and disqualification by the judge, if and when appropriate or necessary, may be the only solution.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A), 2.11(C), 3.11(B), 3.11(D). Cross reference to other relevant opinions for review: #12, #16, #35, #49, #221.]

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