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Formal Advisory Opinion No. 05-3

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FORMAL ADVISORY OPINION NO. 05-3
Approved And Issued On April 26, 2006 Pursuant To Bar Rule 4-403
By Order Of The Supreme Court Of Georgia Thereby Replacing FAO No. 90-2
Supreme Court Docket No. S06U0795

QUESTION PRESENTED:


    Ethical propriety of a part-time law clerk appearing as an attorney before his or her present employer-judge.

SUMMARY ANSWER:

    The representation of clients by a law clerk before a present employer-judge is a violation of Rule 1.7 of the Georgia Rules of Professional Conduct.

OPINION:

    This question involves an application of Rule 1.7 governing personal interest conflicts.  Rule 1.7 provides:

(a) A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b).

(b) If client consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after: (1) consultation with the lawyer, (2) having received in writing reasonable and adequate information about the material risks of the representation, and (3) having been given the opportunity to consult with independent counsel.

(c) Client consent is not permissible if the representation: (1) is prohibited by law or these rules;  . . . (3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.


    There are two threats to professional judgment posed when  a law clerk undertakes to represent a client before the judge by whom the law clerk is also currently employed.  The first is that the lawyer will be unduly restrained in client representation before the employer-judge.  Comment [6] to Rule 1.7 states that "the lawyer's personal or economic interest should not be permitted to have an adverse effect on representation of a client." And Comment [4] explains that:


"loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interest.  The conflict in effect forecloses alternatives that would otherwise be available to the client."


    Because of this risk, the representation of clients by a law clerk before an employer-judge is a violation of  Rule 1.7.  Moreover, the Georgia Supreme Court has ruled that for a full-time law clerk concurrently to serve as appointed co-counsel for a criminal defendant before one of the judges by whom the law clerk is employed constitutes an actual conflict of interest depriving the defendant of his Sixth Amendment
right of counsel.[1]

    Rule 1.7 permits client waiver of personal interest conflicts through client consultation with the lawyer, providing reasonable and adequate written information about the material risks of the representation to the client, and giving the client the opportunity to consult with independent counsel.  This waiver provision must be read consistently with other guidance from the profession.  Because of a second threat to professional judgment, client waiver is impermissible in this situation.  Client waiver is inconsistent with the guidance of Rule 3.5(a) of the Georgia Rules of Professional Responsibility, which prohibits a lawyer from seeking to influence a judge, juror, prospective juror or other official by means prohibited by law.  (There is an implication of improper influence in the very fact of the employment of the attorney for one of the parties as the judge's current law clerk. It is also inconsistent with the guidance of Rule 3.5(a) Comment [2] which states,

    "If we are to maintain integrity of the judicial process, it is imperative that an advocate's function be limited to the presentation of evidence and argument, to allow a cause to be decided according to law.  The exertion of improper influence is detrimental to that process.  Regardless of an advocate's innocent intention, actions which give the appearance of tampering with judicial impartiality are to be avoided.  The activity proscribed by this Rule should be observed by the advocate in such a careful manner that there be no appearance of impropriety.

Accordingly, a part-time law clerk should not seek client waiver of the conflict of interest created by representation of clients before the employer-judge.[2]

A related rule is found in Rule 1.12(b), which states:

A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or arbitrator.  A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator.  In addition, the law clerk shall promptly provide written notice of acceptance of employment to all counsel of record in all such matters in which the prospective employer is involved.

Rule 1.12(b) allows a law clerk for a judge to accept employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially with the approval of the judge and prompt written notice to all counsel of record in matters in which the prospective employer of the law clerk is involved.  Rule 1.12 (b) addresses future employment by a judge's law clerk and should not be read to allow a law clerk to represent a party before the judge whom he is currently employed.  Rule 3.5 (a) and Comment [2] to that Rule would prohibit the appearance of tampering with judicial impartiality that the close employment relationship between judge and current law clerk would inevitably raise.

    This opinion addresses the propriety of the lawyer's conduct under the Georgia Rules of Professional Responsibility.  It does not address the ethical propriety of the same conduct in his or her capacity as part-time clerk.  We do note, however, that many courts have prevented the conduct in question here as a matter of court rules in accord with this opinion.[3] We also note that judicial clerks are often treated as "other judicial officers" for the purpose of determining disqualifications and other ethical concerns.[4] Under that treatment, the conduct in question here would be analogous to a request by a part-time judge to practice before his or her own court in violation of the Code of Judicial Conduct and statutory provisions.[5] See O.C.G.A. § 15-7-21.[6]

1. 269 Ga. 446, 499 S.E. 2d 897 (1998).

2. In accord, Advisory Opinion CI-951 (Michigan) (1983).  (Part-time law clerk may not work in any capacity as private counsel on any case pending in employer-judge's circuit and must give notice to clients of his inability to appear in the circuit.)

3. Sup. Ct. R. 7.  (An employee of the Supreme Court shall not practice as an attorney in any court while employed by the Court.)

4. See, eg., ABA/BNA Lawyers' Manual on Professional Conduct 91:4503 and cases cited therein; see, also, ABA Model Rules of Professional Conduct Rule 1.12 (1984); and Opinion 38 (Georgia 1984) ("Lawyers and members of the public view a Law Clerk as an extension of the Judge for whom the Clerk works").

5. Georgia Code of Judicial Conduct.  (Part-time judges: (2) should not practice law in the court on which they serve, or in any court subject to the appellate jurisdiction of the court on which they serve, or act as lawyers in proceedings in which they have served as judges or in any other proceeding related thereto.)

6. O.C.G.A. § 15-7-21(b).  A part-time judge of the state court may engage in the private practice of law in other courts but may not practice in his own court or appear in any matter as to which that judge has exercised any jurisdiction.



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