Appearing Before a Federal Court or Agency in Massachusetts; Announcing Name of Firm Judge Will Be Joining
July 11, 2008
CJE Opinion No. 2008-5
You have sought guidance as to whether following your retirement as a judge you may immediately enter an appearance in a federal court or agency in Massachusetts or if you must wait the six months that is required under CJC Section 6A(2) before filing an appearance in any Massachusetts state court. You have also asked if it is appropriate to make a public announcement two or three months before you retire that you are joining a specific firm. For the reasons stated herein the Committee believes that upon retirement you may immediately enter an appearance in a federal court or agency but may not announce the name of the firm you will be joining prior to leaving the bench.
As regards the initial inquiry Section 6(A)(2) provides in pertinent part:
"A judge who has retired or resigned from judicial office shall not, for a period of six months, following the date of retirement [or] resignation...perform court-connected dispute resolution services except on a pro bono public basis, enter an appearance, or accept an appointment to represent any party in any court of the Commonwealth."
While the cited language clearly prohibits a retired judge from appearing in a court of the Commonwealth for six months after retirement, the section provides no additional commentary clarifying whether the phrase "any court of the Commonwealth" applies to all courts within the Commonwealth, federal or state, or if it only applies to state courts. In addressing this question it is helpful to compare Section 6(A)(2) to the language and commentary of Section 3(B)(9). Under Section 3(B)(9), a judge is precluded from commenting on a "pending or impending Massachusetts proceeding in any court." The phrase "any court" is expressly defined in the accompanying commentary to include federal as well as state courts within the United states or its territories. By contrast, the language in Section 6(A)(2) refers to "any court of the Commonwealth" without comparable commentary. The phrase "court of the Commonwealth" as compared to Section 3(B)(9) supports the conclusion that Section 6A(2) only refers to Massachusetts state courts.
As regards your second question, Section 2 B provides that "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Announcing the name of the firm you will be joining in advance of doing so might be perceived as advancing the firm's private interests while you are still an active judge. When you retire and join the firm, and make appropriate announcements, you will be lending the prestige of your former office to advance those same interests, but that happens every time a judge retires and joins a firm. The Code of Judicial Conduct does not prohibit judges from joining law firms after they leave the bench, which indicates that any Section 2B concern is resolved once you have retired.