2013-08 (March 22, 2013)
New Judge; Transition to the Bench; Former Law Firm; Compensation
Rules 1.2, 2.11 & 3.11;
Rule 1.5(e) of the Rules of Professional Conduct
Issue:
Several years prior to a Judicial Official being appointed as a Judicial Official, he or she referred a case to another attorney pursuant to an arrangement which provided that the referring attorney would receive a referral fee upon successful conclusion of the case. The case was settled after the Judicial Official’s appointment to the bench. May the Judicial Official accept the referral fee?
Response: Rule 1.2 states that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.
Rule 2.11 states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned”.
Rule 3.11 states that a judge shall not engage in financial activities permitted by under the Code if they will lead to frequent disqualification of the judge or involve the judge in frequent transactions with lawyers or others likely to come before the court on which the judge serves.
Based on the facts presented, including that the case was resolved within a short period of time after the Judicial Official was appointed to the bench and that payment is pursuant to a referral fee agreement, the Committee unanimously determined that the Judicial Official may accept the referral fee subject to the following conditions:
- In accordance with Rule 1.5 of the Rules of Professional Conduct, the client must have been advised in writing of the compensation sharing agreement and of the participation of all attorneys involved and did not object and the total fee paid to all attorneys is reasonable.
- The Judicial Official should consider whether the decision to accept payment may necessitate the Judicial Official’s disqualification to hear matters in the future involving the client and the attorney to whom the case was referred.
In reaching its opinion, the Committee considered JE 2008-19 and JE 2008-19A.
