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Opinion 221

A newly elected Superior Court Judge requests an opinion on the propriety of leaving prior contributions to his former law firm’s 401-K Plan in the firm’s existing plan while, at some future date, deciding cases involving his former firm. It is represented that the former law firm has no control over the management of the assets in the plan which are managed by an independent bank and that the success of the plan is in no way tied to the profitability of the firm. It is further represented that neither the Judge nor the firm will make further contributions to the plan on the judge’s behalf other than the judge’s pro rata portion of a management fee which is currently paid by the firm. Finally, it is represented that significant advantages may flow to the judge by reason of leaving the prior contributions in the existing plan, and the judge indicates a willingness to pay a pro rata portion of the management fee if deemed necessary by the Commission.

Although the precise issue raised by this request has not been previously addressed by this Commission, similar issues involving the continued ownership and/or division of law firm assets by newly elected judges have been considered in Opinion Nos. 12, 16, 35, 49 and 130. In Opinion No. 49, the Commission concluded that the purchase of law firm assets formerly owned by a newly selected judge on a deferred payment plan by a lawyer regularly practicing in the new judge’s court did not mandate disqualification. Similarly, in Opinion No. 130, the Commission concluded that a newly appointed judge, who withdrew from a law firm under arrangements involving certain guaranteed payments plus a percentage of fees generated in certain contingent cases, would not be required to disqualify in cases in which his former firm was involved. Both Opinions, however, noted that if the judge entertains any personal doubts as to impartiality or if, under the circumstances, that impartiality might reasonably be questioned by others, it would be the judge’s duty to recuse, and Opinion No. 130 requires full disclosure so long as the debt remained outstanding.

Measured by these standards and given the express language of Rule 2.11, the mere leaving of previously contributed 401-K funds with a newly elected judge’s former law firm would not constitute a violation of any of the three per se grounds for disqualification. Nevertheless, if the judge entertains any doubt as to his impartiality, he should disqualify. In addition, and to further remove any possible violation of Rule 3.11, the Commission strongly recommends that the judge pay his pro rata share of the annual management fee if it is in fact not being presently deducted from funds credited to his account.

Finally, attention is directed to that portion of the Commentary [2] to Rule 2.11 which provides:

Judges should disclose on the record information that the Court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification.

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 2.11, Rule 3.11. Cross reference to other relevant opinions for review: #12, #16, #35, #49, #130.]

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