From the firm to the bench. Advisory opinion clarifies financial and ethical concerns of new judges.
It is a scenario many new judges face: how to handle the financial and ethical implications involved in the transition from a firm to the bench. Can a judge still accept payment from their old firm for services performed before assuming public office? Must a judge recuse himself or herself from cases involving their old firm? For how long? Can a judge continue to accept retirement benefits from their old firm? A recent advisory opinion (Advisory Opinion 2021-6) from the Ohio Board of Professional Conduct provides welcome guidance for handling these situations.
While the Code of Judicial Conduct prohibits a judge from practicing law, the advisory opinion clarifies how a judge should handle fees earned before taking office. A judge transitioning from private practice is entitled to accept payments reflecting a flat fee or the number of hours billed at an agreed upon rate. Contingent fees may also be paid to a judge once the contingency occurs. Of course, any income received by a judge from a former firm must be reported on the judge’s annual financial disclosure statement.
The continued payment of fees from a former firm will also raise questions surrounding the new judge’s impartiality. The advisory opinion notes that when a judge anticipates fees or other payments from a former firm, the Code of Judicial Conduct restricts the judge’s ability to hear cases in which lawyers from the former firm are counsel for a party. A judge’s recusal in such a scenario avoids the appearance of impropriety that occurs if a law firm with existing financial ties to the judge appears before the judge.
Another scenario facing judges is when they receive payments from a former firm in the form of retirement benefits. The question presented to the Board of Professional Conduct was what should be done when benefits paid to a judge involve a percentage of fees earned for legal services performed by other lawyers for the judge’s former clients. The Board states that neither the Code of Judicial Conduct nor the Rules of Professional Conduct prohibit an agreement under these terms. However, given the recusal requirements previously discussed, such an agreement should not provide for retirement payments in perpetuity. Thus, as soon as practicable, a judge should divest himself or herself from the financial interest that could otherwise require frequent disqualification.
Even in the absence of continued financial ties, judges may also wonder how long they should continue to recuse themselves from cases involving their former firm or partners. Recusal in such scenarios is not expressly mandated by the Code of Judicial Conduct, nor does the Code establish a specific time period for a judge to recuse from such cases. The Chief Justice of the Supreme Court of Ohio has reviewed similar scenarios and determined a prior relationship is not grounds for disqualification when the relationship ended some years ago. The Advisory Opinion states that a new judge should carefully consider the appropriate amount of time before hearing a case involving a former partner as counsel. A decision should be made by a judge—in light of the existence of any personal bias or prejudice—whether his or her impartiality could be questioned by a reasonable and objective observer. The judge must also consider his or her obligation to maintain public confidence in the judiciary. Other factor, for example, the size of the former firm, may also factor in. A close partnership in a small firm may require a longer recusal period than a situation involving a large firm with multiple offices and practice groups.
Finally the Advisory Opinion reiterates the clear rule that a judge must cease the practice of law upon taking office. A new judge may not continue to participate in a law firm’s partnership for the purpose of receiving fees or payments. Additionally, a law firm partnership may not include the name of the judge after he or she assumes public office.
While the results of the Advisory Opinion are not surprising, it does provide clarification to the issues many new judges face in their transition from the firm to the bench.