Practicing in the Federal Courts within Six Months after Retirement
April 11, 2016
You have sought an opinion concerning the practice of law within the first six months following your retirement from the state judiciary. You intend to join a private law firm and have asked whether the six-month prohibition on entering an appearance in "any court of the Commonwealth" applies to the federal courts. You have stated you do not intend to represent any party in any state court for at least six months (1).
The Application section of the Code addresses when it applies to a retired judge. Comment  states in relevant part: "A judge who has retired or resigned from judicial office shall not, for a period of six months following the date of retirement . . . perform dispute resolution services with a court-connected program except on a pro bono public basis, or enter an appearance, or accept an appointment to represent any party, in any court of the Commonwealth."
The phrase "any court of the Commonwealth" refers to the state courts. The Code uses the phrase "any Massachusetts court" when it intends to include both the state courts and the federal courts located in Massachusetts. See Rule 2.10 and Comment . The six-month restriction on practice within the state courts is intended to avoid the appearance of and potential for preferential treatment, favoritism, unfairness, and impropriety that may arise were a newly-retired judge to appear before former judicial colleagues.
Although the Code does not prohibit you from practicing in the federal courts upon your retirement, the following cautions are in order, the first of which is time-limited. First, for the six month period, you must avoid working on any matters that are reasonably likely to involve the state courts; for example, you should not participate in a matter if there is a related state case or if the issues involved make it reasonably likely that a federal court may certify a question of law to the Supreme Judicial Court. Second, you must avoid any conflict of interest arising from your work as a state court judge. See Mass. G.L. c. 268A, Rule of Professional Conduct 1.12, and State Ethics Commission Advisory 15-1: Avoiding Conflicts of Interest While Seeking a New Job and After Leaving Public Employment. Third, you should ensure that you are not referred to by the title "judge" in the courtroom or in any papers filed in court. See Mass. Bar Association Committee on Professional Ethics Opinion No. 78-8.
(1) This opinion relies on the facts you have provided to the Committee on Judicial Ethics. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force and effect.