Retired Judge Noticing and Taking Depositions Being Addressed Socially

January 30, 2001

CJE Opinion No. 2001-3

You have sought an opinion regarding two matters: (a) whether within the first six months following your retirement from the judiciary you may notice and take depositions in state court cases; and (b) by what title you should be addressed socially by others, both in the event that you do and do not practice law.

Canon 8(A)(2) has application to your first question, assuming as we do that the Code of Judicial Conduct governs the conduct not only of judges in active service but also those who have retired, at least for a six month period thereafter. As most recently amended, Canon 8(A)(2) states:

"A judge who has retired or resigned from judicial office should not perform court-connected dispute resolution services except on a pro bono publico basis, enter an appearance, nor accept an appointment to represent any party in any court of the Commonwealth for a period of six months following the date of retirement, resignation, or most recent service as a retired judge pursuant to G. L. c. 32, §65E-65G."

The apparent thrust of this Canon is to avoid the appearance or reality of preferential treatment, favoritism, unfairness and impropriety that may be suggested were a newly retired judge to accept paid appointments from, or appear before, former judicial colleagues. As it may apply to your first inquiry, the Canon proscribes entering an appearance for six months following retirement; the question reduces to whether noticing or taking a deposition in litigation brought in our state courts would constitute entry of an appearance.

The phrase "enter an appearance" suggests more than an attorney's physical presence in court. The topic of how counsel is to enter or withdraw an appearance in a case brought in our state courts is addressed in Mass. R. Civ. P. 11 and Mass. R. Crim. P. 7. The phrase as used there means the notice given the court that a particular lawyer, suitably identified, is to represent a client in the litigation. Depositions are generally taken in civil matters, as to which the Canon, then, would proscribe a newly retired judge for six months from filing a notice of appearance, pleading, motion or "other paper." The Canon would also preclude his physical appearance in court to argue on behalf of a client in that period.

That being said, however, the Rules of Civil Procedure addressing deposition practice appear to contemplate that most depositions will be noticed without the need to file papers with the court and will be taken without the need for judicial intervention to resolve disputes. We can envision circumstances where one lawyer in a firm has entered an appearance in a case but another lawyer in that firm takes or defends some depositions in the case. To the extent that noticing, taking, and defending depositions does not implicate court filings or appearances, the Canon does not proscribe you from undertaking those activities. Should the need for judicial involvement and court filings arise in connection with such deposition practice, however, the Canon would preclude you from undertaking such activities in the six months following your retirement. Finally, we would be remiss if we failed to call to your attention Rule 1.12 of the Massachusetts Rules of Professional Conduct applicable to former judges.

You also raise the question regarding the proper title by which you should be addressed in social situations. Unfortunately, we are unable to offer you any assistance in this regard since our charge is limited to the construction and application of the Code of Judicial Conduct which does not address this issue. In the hope that you find it helpful, however, we enclose a copy of Opinion No. 78-8 of the MBA Committee on Professional Ethics (copy attached), which concerns a related subject.