COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 24
Financial Settlement and Disqualification on Judge's Resignation
From Law Firm.
A judge inquires of this Committee as to the proper course for him
to follow under these circumstances:
The judge is newly appointed from an active practice of law which
the judge pursued as a partner with other lawyers. The termination-of-partnership
agreement provided for payment of an agreed amount representing the retiring
partner's interest in the firm. Some of the payments thus agreed upon are
to be paid in years following the partner's appointment as a United States
judge.
The Committee is of the opinion that when a partner leaves a law
firm to become a federal judge, he or she should, if possible, agree with
the partners on an exact amount which the judge will receive for his or
her interest in the firm, whether that sum is to be paid within the year
or over a period of years.
Such agreed-upon payments may continue to be made to the judge provided
it is clear (1) that the judge is not sharing in profits of the firm earned
after the judge's departure, as distinguished from sharing in an amount
representing the fair value of the judge's interest in the firm, including
the fair value of the judge's interest in fees to be collected in the future
for work done before leaving the firm, and (2) such judge does not participate
in any case in which the former firm or any partner or associate thereof
is counsel until the full amount which he or she may be entitled to receive
under the agreement has been paid.
Apart from recusal during the period when the judge is receiving
payments from a former law firm, there is a broader question of the appearance
of impropriety in the judge's hearing cases involving that firm. Many judges
have an automatic rule of disqualification for a specified number of years
after leaving the law firm. How long a judge should continue to recuse
depends upon various circumstances, such as the relationship the judge
had at the law firm with the lawyer appearing before the judge, the length
of time since the judge left the law firm, and the relationship between
the judge and the particular client and the importance of that client to
the firm's practice. The Committee recommends that judges consider a recusal
period of at least two years, recognizing that there will be circumstances
where a longer period may be more appropriate. In all cases in which the
judge's former law firm appears before the judge, the judge should carefully
analyze the situation to determine whether his or her participation would
create any appearance of impropriety.
September 1, 1972
Revised July 10, 1998