Appearance Before Judge Who Is Lawyer's Client
Adopted: October 24, 1997
Opinion rules that a lawyer may appear in court before a judge the lawyer represents in a personal matter provided there is disclosure of the representation and all parties and lawyers agree that the relationship between the lawyer and the judge is immaterial to the trial of the matter.
Editor's Note: Opinion was originally published as RPC 253. Before adoption, it was revised to reference the appropriate sections of the Revised Rules of Professional Conduct under which it was finally decided.
Inquiry #1:
Attorney A regularly appears before Judge Z in domestic court. Judge Z asked Attorney A to represent him in his own domestic case. Attorney A sought the guidance of the chief district court judge. The chief district court judge instructed Attorney A to disclose his representation of Judge Z to the opposing lawyer in any case scheduled to be heard by Judge Z. The opposing lawyer may agree that Judge Z will hear the case or the lawyer may ask Judge Z to recuse himself. If the opposing lawyer asks Judge Z to recuse himself, the chief district court judge will find another judge to hear the matter. May Attorney A appear before Judge Z after disclosure of his representation of Judge Z to the opposing counsel and party and their consent to the hearing of the matter by Judge Z?
Opinion #1:
Yes. It appears that the chief district court judge's opinion is based upon Canon III D of the Code of Judicial Conduct which provides:
A judge disqualified [in a proceeding in which his impartiality might reasonably be questioned by reason of financial interests or involvement] may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.
Compliance with the procedure set forth in the Code of Judicial Conduct protects the interest of the opposing party and satisfies any concern regarding Attorney A's conduct. To the extent it is inconsistent with this opinion, CPR 183 is withdrawn.
Inquiry #2:
Must Attorney A disclose his representation of Judge Z to his client?
Opinion #2:
Yes, this would appear to be necessary to obtain the consent to proceed from the opposing party and lawyer. Judge Z's consent to this disclosure is implied. Rule 1.6 (d)(1) of the Revised Rules of Professional Conduct.
Inquiry #3:
May Attorney A rely upon the opinion of the chief district court judge or should Attorney A request that Judge Z not be assigned to any of his cases?
Opinion #3:
The courts have concurrent jurisdiction with the State Bar over the conduct of the lawyers who appear before them. G.S. §84-36. A lawyer's compliance with the opinion of the local chief district court judge with regard to a matter involving potential bias on the part of a judge is not a violation of the Rules of Professional Conduct.
Inquiry #4:
After Judge Z's legal representation is concluded, does Attorney A have any further duty to inform opposing counsel of his prior representation of Judge Z?
Opinion #4:
No.