Ethics Docket No. 1995-09

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1995-09

Judicial clerk in County with only one judge leaving to accept employment with law firm in same county.

In your inquiry, you state that you recently served as the judicial law clerk to the only judge sitting in a particular Maryland county. Subsequent to the conclusion of your judicial clerkship, you have taken employment with a law firm based in that county. You are concerned as to what participation and involvement you may have with cases in your private practice with which you had some contact as a law clerk.

You appropriately point the Committee to the Maryland Rules of Professional Conduct, Rule 1.12{a}, which provides the relevant rule governing the question you pose, Rule 1.12{a} provides as follows:

{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 or other adjudicative officer, arbitrator or law clerk to such person, unless all persons to the proceeding consent after disclosure.

You indicate in your inquiry that you realize your involvement as a judicial law clerk in decision-making on dispositive motions or after trial on the merits would constitute ""personal and substantial: participation. You also indicate that as a judicial law clerk you assisted the judge with hearings and motions regarding non-dispositive issues and had some contact with practically every case which has been heard by the Judge during your clerkship. You ask for the Committee's guidance on the parameters of Rule 1.12{a}.

We look first to the comments to Rule 1.12{a} for some guidance as to the application of the Rule. The comments indicate that

""[t]he term ""personally and substantially"" signifies that a judge who was a member of a multi-member court, and thereafter left the judicial office to practice law, is not prohibited from representing a client in a matter pending in a matter pending in the court, but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not effect the merits.

We read the comment to draw a distinction between participation in the substantive aspects of a case, on the one hand, and participation in a purely perfunctory or administrative capacity, on the other. In the Committee's view, participation ""personally and substantially"" as a law clerk is not limited to merely those situations where the law clerk participated in the evaluation of dispositive motions or a decision after the trial on the merits, but also includes any participation in other significant pre-trial matters where the substantive rights and obligations of the parties were at issue. We add that we do not believe a hard and fast interpretation of the standards set forth in Rule 1.12{a} need be set forth, as the application of the standard to any extent of the law clerk's involvement or participation in the matter while assigned to the judge.

We find some support for this conclusion from one of our opinions issued prior to the adoption of the Maryland Rules of Professional Conduct. In Ethics Docket 84-46, the Committee was presented with the issue of the propriety of a former law clerk to a federal district court judge working on the case with which the law clerk had some responsibility, after taking a position with the State Attorney General's Office. Although the Committee did not believe that then existing DR9-101 (which required the avoidance of even the appearance of impropriety) was applicable, it did rely on ethical consideration 9-2, which stated that "". . . [W]hen explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession."" The Committee thought it advisable for the attorney to refrain from handling the case, and noted that there would be no appearance of impropriety if other assistant attorney general's represented the involved state agency in the matter.

We also find some support for our conclusion in opinions issued by committees of other state bar associations. See Ethics Advisory Committee of the South Carolina Bar, Opinion 91-29 (11/91); and Standing Committee on Legal Ethics of the Virginia State Bar, Opinion 1478 (8/24/92). For instance, the South Carolina Committee concluded that a law clerk participated personally and substantially in a matter where he observed the trial and also researched points of law for the judge.