Chapter Former Judge

• Jurisdiction: Washington

VI. RPC 1.12: FORMER JUDGE, ARBITRATOR, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL

RPC 1.12 extends the general prohibitions of RPC 1.11 to lawyers who have returned to the private sector after serving as a judge, other adjudicative officer, arbitrator, mediator, or other third-party neutral. Washington's RPC is identical to the ABA's MRPC 1.12. The five comments accompanying the rule are also identical, with the exception of the last sentence of Comment 1, which references provisions of the Code of Judicial Conduct. For a better understanding of RPC 1.12, see Section V.D., above, explaining the general rule for lawyers switching between government and private sector employment.

Concerns for loyalty and the preservation of client confidences lie at the heart of all the conflict-of-interest rules. These concerns are tailored in RPC 1.12 toward the

prevention of the possibility that a judge might take action or refuse to take action while a judge in order to enhance employability or financial rewards in private practice; prevention of the possibility that a former judge might take unfair advantage of judicial access to confidential information; and prevention of an appearance of impropriety.¹⁰²⁶

A. RPC 1.12(a): Restrictions on Representation

RPC 1.12(a) provides:

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 or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent confirmed in writing.

1. "Matter"

The term "matter" is not defined in RPC 1.12. However, RPC 1.11(e), the underlying rule forming the basis of the prohibitions set forth in RPC 1.12, defines the term "matter," and that definition would appear to be applicable to RPC 1.12 as well.¹⁰²⁷ RPC 1.11(e) defines "matter" as "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and ... any other matter covered by the conflict of interest rules of the appropriate government agency." Significantly, in evaluating a motion to disqualify a former mediator under RPC 1.12, the U.S. District Court for the District of Utah in Poly Software International, Inc. v. Su¹⁰²⁸ concluded that the "same or substantially factually related"¹⁰²⁹ standard of RPC 1.9 should apply, rather than the "matter" standard expressly contained in RPC 1.11.¹⁰³⁰ The court noted that mediators, unlike judges, are expected to learn confidences of the parties and to keep them inviolate, making the broader scope of Rule 1.9 more appropriate. The Poly Software case is discussed in more detail in Section VI.A.3., below.

2. Personally and Substantially

The level of a lawyer's involvement in a matter as an adjudicative officer is key to applying RPC 1.12. Not all subsequent representation in the private sector is strictly prohibited. As with RPC 1.11(a)(2), the lawyer must have been involved both personally and substantially in the prior matter before the restriction in RPC 1.12 applies. For detailed analysis of what constitutes personal and substantial involvement, see discussion of RPC 1.11(a)(2) in Section V.A.2., above. There is little case law in Washington regarding RPC 1.12; however, because the rule is identical to the model rule, examples from other jurisdictions and ABA and WSBA opinions can prove illustrative.

Conduct found to indicate an attorney was personally and substantially involved. In Monument Builders of Pennsylvania, Inc. v. Catholic Cemeteries Ass'n,¹⁰³¹ plaintiff 's attorney Carroll formerly clerked for the judge who presided over a related case. The federal district court found that, while a law clerk, Carroll had been substantially involved in a 1984 action, including participation in hearings and decisions regarding a party's default, and in researching and preparing a memo opinion on alleged violations of a consent decree.¹⁰³² The 1999 action at issue in Monument Builders was found to involve the "same matter" as the 1984 case because the parties were the same, the two matters involved largely the same facts and conduct, and the 1999 action was seeking redress for the underlying violation of the consent decree concerning which Carroll had already been found to have been substantially involved while the judge's clerk.¹⁰³³ The court disqualified Carroll under Pennsylvania RPC 1.12(a), which is substantively identical to Washington RPC 1.12(a), noting that violations of the RPC, as well as those rules set forth in the Codes of Conduct for Law Clerks and Judicial Employees, outweighed the rights of the plaintiffs to counsel of their choice and of Carroll to practice without excessive restrictions.¹⁰³⁴

In Washington, the RPC Committee has opined that the signing of a temporary restraining order constitutes "substantial participation" in a matter, thus prohibiting future representation of parties involved in the matter.¹⁰³⁵ The committee has also opined that it would violate RPC 1.12(a) for an attorney to represent an estate in connection with the settlement of a personal injury claim, after the attorney was discharged as a guardian ad litem for the incapacitated person involved in the claim, on the theory that a guardian ad litem is an "adjudicative officer" for purposes of RPC 1.12. See discussion of "adjudicative officer" in Section VI.A.3., below.¹⁰³⁶

Conduct found not to indicate a lawyer was personally and substantially involved. A primary purpose of the conflict-of-interest rules generally is to "prevent lawyers from using a prior client relationship or privileged information gained therefrom to the lawyer's own advantage or to the client`s disadvantage."¹⁰³⁷ This concern is not warranted when the involvement is cursory, such as a law clerk processing public documents absent access to privileged communication.¹⁰³⁸ Similarly, if the lawyer's conduct while serving as an adjudicative officer involved only a "remote or incidental administrative responsibility that did not affect the merits" of a prior matter, the lawyer may later represent a private sector client in such a matter.¹⁰³⁹

In State v. Palomares,¹⁰⁴⁰ three days after being appointed as defense counsel for Palomares, a lawyer informed the court that while previously serving as a judge pro tem he had signed a search warrant for the home of an associate of Palomares, and Palomares had been convicted of a prior crime in connection with that search warrant. The trial court denied a request for new counsel, finding that the prior case involved an unrelated matter, there was no showing of bias, and there was no evidence that appointed counsel had any other involvement in the prior matter other than signing the warrant. Analyzing the issue under RPC 1.12(a), the Court of Appeals upheld the denial, finding the attorney's sole involvement in the prior case was the signing of a search warrant and there was no connection between the prior charges stemming from the search warrant and the current charges. Had the search warrant been for the case counsel was appointed for, however, the outcome might have been different.¹⁰⁴¹

Also, a lawyer who previously served as a judge on a multimember court can subsequently represent a client in private practice in that same court, as long as the matter involved is not one in which the lawyer had participated while acting in an adjudicative capacity.¹⁰⁴² The WSBA RPC Committee has stated that a part-time tribal court judge is not prohibited by RPC 1.12 from "representing a litigant in the court in which the judge sat," whether it be at trial or on appeal and whether the matter is against the tribe or not, "so long as the matter is totally unrelated to any case in which the lawyer has sat in a judicial capacity [and] so long as the lawyer does not run afoul of RPC 1.7(b)."¹⁰⁴³

3. Judge, Adjudicative Officer, Law Clerk, Arbitrator, Mediator, or Other Third-Party Neutral

The restrictions of RPC 1.12 extend not only to lawyers formerly employed in an adjudicative capacity but also to those who served various third-party-neutral functions. In Washington, an "adjudicative officer" can refer to lawyers in a variety of capacities, such as "judges pro tempore, referees, special masters, hearing...