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Opinion 94

An attorney who is retained on a part-time basis by the Georgia Public Service Commission as a hearing officer to adjudicate contested cases in transportation and other matters has requested an Advisory Opinion as to whether he can appropriately accept association with another attorney, who regularly appears before him as a hearing officer, to represent a client in a wrongful death action, on a contingency fee basis, where the contingent fee will be divided in proportion to the time devoted to the case by each lawyer. The hearing officer states that this association would not, in fact, affect his impartiality or interfere with the performance of his duties as a hearing officer, nor does he consider that it would exploit his judicial position for the reason that he has expertise with the particular type of case involved. These representations are made in good faith and, for present purposes, they are accepted at face value. This meets the requirements of Rule 3.11(B) which provides as follows:

Rule 3.11 Financial Activities and Business Dealings

… 

(B) Judges should refrain from financial and business dealings with lawyers, litigants, and others that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, or exploit their judicial positions.


The problem is, however, that Canon 1 provides:

Judges Should Avoid Impropriety and the Appearance of Impropriety in All Their Activities.

Further, Rule 2.4(C) states: 

(C) Judges shall not convey or enable others to convey the impression that any person or organization is in a position to influence the judge.

The relationship created by the proposed association could create an appearance of possible impropriety and the opportunity for special influence. While no such appearance exists under the facts here stated, approval of such arrangements could create an open invitation to possible abuse in the future.

[Pertinent Code of Judicial Conduct provisions: Rules 2.4(C), 2.11, 3.11. Cross reference to other relevant opinions for review: #66, #113, #122, #173.]

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