COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 84
Judge's Pursuit of Post-Judicial Employment.
Judges considering retirement or resignation have sought advice
from the Committee as to measures they may appropriately take to explore
post-judicial employment.
In directing that a judge avoid both the reality and appearance
of impropriety, Canon 2A charges a judge to conduct himself or herself
"at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary." Canon 3 admonishes a judge that the
"judicial duties of a judge take precedence over all other activities."
Canon 3C(1) requires a judge to "disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned." Canon
5C(3) provides that a "judge should manage investments and other financial
interests to minimize the number of cases in which the judge is disqualified."
The Committee concludes that a judge contemplating retirement or
resignation appropriately may explore a professional relationship with
law firms or other employment relationships with other potential employers,
provided that the judge proceeds in a dignified manner and complies with
the canons. This opinion discusses exploration of employment opportunities
with a law firm. The principles discussed would apply by analogy to other
potential employers.
After the initiation of any discussions with a law firm, no matter
how preliminary or tentative the exploration may be, the judge should recuse
on any matter in which the firm appears. Absent such recusal, a judge's
impartiality might reasonably be questioned.
In deciding what law firms to contact, a judge should be sensitive
to the public perspective and to the relevant provisions of the canons.
At one extreme, a judge steers far from any impropriety or appearance of
impropriety when the judge negotiates only with firms which have not appeared
before the judge.
At the other extreme, a judge should refrain from negotiating with
a firm if the firm's cases before the court are so frequent and so numerous
that the judge's recusal in the law firm's cases (which would of course
be required) would adversely affect the litigants and the court's ability
to handle its docket. In such cases, the judge's judicial duties would
have to take precedence over the legitimate personal interest in post-judicial
employment.
In this regard, the Committee believes that a judge properly may
negotiate with a law firm which does appear before the court, but only
if the judge's recusal in such cases would not unduly affect the litigants
or the court's docket. For example, it may be feasible to shift those cases
to other judges on the court without undue burden.
A judge should not explore employment opportunities with a law firm
which has appeared before the judge until the passage of a reasonable interval
of time, so that the judge's impartiality in the handling of the case cannot
reasonably be questioned. The appropriate interval of time will depend
upon all the particular facts and circumstances.
The Committee has approved the propriety of the procedure whereby
the judge makes known a future retirement or resignation date, and during
a reasonable time in the interim between the announcement and the projected
retirement date, the judge would complete pending assignments but not take
on new cases. However, in the case of an active judge, the Committee concluded
that it would be inappropriate for a judge to withdraw from all judicial
duties during the interim between such an announcement and the projected
retirement date. That would violate the duty of an active judge to perform
judicial duties and would violate the canon requirement that judicial duties
take precedence over all other activities.
January 16, 1990
Reviewed January 16, 1998