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Opinion 92

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether a judge can appropriately act as a class representative in a class action which involves a private matter in which he and others have sustained an economic loss, as distinguished from a public issue class action such as resulted in Opinion Nos. 2 and 77.

The suggestion is made that, since the judge is acting to protect his property rights and to obtain redress for loss sustained by him, he should be allowed to proceed since no other individual has volunteered to serve as a class representative, and he will otherwise sustain an economic loss. Finally, it is represented that, because of the relatively small loss by him and other individuals and the tremendous cost of pursuing the complex litigation which will be necessary, it will be impossible for the judge to pursue the case solely on his own behalf rather than on behalf of a class.

While the Commission understands these considerations, it is, nevertheless, forced to the conclusion that litigation as a class representative involves the assumption of obligations which are, or certainly may become, inconsistent with the injunction of Rule 2.1 that “[t]he judicial duties of judges takes precedence over all their other activities.”

This is true because a class action, once initiated, may not be dismissed, or compromised, without the approval of the court, but must be asserted and prosecuted vigorously for the benefit of the class, rather than the class representative alone. In a word, once such litigation has been started, the class representative has assumed an obligation to others which he is duty bound to prosecute at whatever cost in time, regardless of judicial obligation or self-interest, subject only to a recovery or court approved settlement or dismissal.

This would appear to violate the prohibition in Rule 3.8(A) against a judge acting as a trustee or fiduciary for others. This, in the opinion of the Commission, is inconsistent with the obligations of a judge under Rule 2.1.

[Pertinent Code of Judicial Conduct provisions: Rule 1.2(B), 2.4(B), 2.10(A), 2.11(A), 3.2, 3.11(B), 3.11(D), 3.13(C). Cross reference to other relevant opinions for review: #2, #77, #78, #115, #138, #174, #178.]

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