Opinion

Opinion CJE Opinion No. 2018-02

Date: 03/21/2018
Organization: Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

New Judge, Communications with Successor Counsel

You are a recently-appointed judge. You have asked a series of questions concerning to what extent you may discuss a former client's case with the client's new lawyer.

You have described the background as follows.(1) Pursuant to an appointment from the Committee for Public Counsel Services, you served as counsel of record to a defendant charged, inter alia, with first degree murder.  Because of your nomination to the Superior Court bench (and for no other reason), you withdrew from the case, and the client obtained new counsel. Prior to your withdrawal, you performed a significant amount of work on this client's case, including substantial factual investigation. You have told us that the case is scheduled for trial later this year.

Before you assumed judicial office, you provided all of your electronic and paper file materials to successor counsel. You also prepared a detailed "transfer memorandum" that you provided to successor counsel. You made repeated attempts via both phone and email to speak with successor counsel. In your messages to successor counsel, you explained that you were eager to speak with him soon because you knew you might not be able to respond to case-related inquiries after assuming judicial office. To the best of your memory, you did not connect with successor counsel except very briefly to make arrangements to send him the file materials, including the transfer memorandum.

Recently, successor counsel has contacted you and asked to speak to you about the client's case.

Preliminarily, we note that your conduct prior to assuming judicial office demonstrates an awareness of your obligation to comply with Mass. R. Prof. C. 1.16, which addresses a lawyer's obligation upon termination of representation, to take "steps to the extent reasonably practicable to protect a client's interests," including giving reasonable notice to the client and transferring the file to successor counsel. See Mass. R. Prof. C. 1.16(d) and (e).

As a judge, you are bound by the Code of Judicial Conduct. Relevant Code provisions include Rule 3.10, which prohibits a judge from practicing law, and Rule 1.2, which requires a judge to act at all times in a manner that promotes public confidence in the judiciary.  Additionally, a judge has a continuing duty of loyalty to former clients and "an obligation to keep confidential [the client's] communications to [the judge] within the course of the representation." CJE Opinion No. 2004-01. See also Mass. R. Prof. C. 1.9 (setting forth the obligations a lawyer owes to former clients, including the obligation not to reveal confidential information relating to the representation except under carefully circumscribed circumstances). Moreover, the Supreme Judicial Court has addressed a lawyer's obligation in making the transition to a judge:

[A] judge should refrain from participating in matters for former clients after he has taken his oath of office. He should not use courthouse facilities for discussions of these matters. As a practical matter, in certain instances, successor counsel or the client may need particular information which only the judge may be able to furnish. However, a conscientious attorney about to assume the bench should be certain that all matters are in the hands of successor counsel or that the client is aware of the need for successor counsel. Such an attorney should anticipate future needs for information and assistance and should meet them, as far as possible, before assuming judicial office.

Young v. Southgate Development Corp., 379 Mass. 523, 526-27 (1980).

You have asked the Committee on Judicial Ethics a series of questions pertaining to future contacts you may have with successor counsel. 

1.  Does the Code of Judicial Conduct prohibit you from discussing strategic decisions  with successor counsel? If so, does this prohibition violate Mass. R. Prof. C.  1.16(d)?

As noted above, your  providing the file and a detailed transfer memorandum to successor counsel prior to assuming judicial office demonstrates an awareness of your obligation to comply with Mass. R. Prof. C. 1.16.

The Code of Judicial Conduct's prohibition on the practice of law and requirement that you avoid impropriety and its appearance require you to cease efforts on a former client's behalf when you assume judicial office. The Code makes an exception, however, for communications limited to factual information. Thus, for example, you may respond to successor counsel's questions regarding historical facts not readily apparent from the file and similar matters of clarification. You may not, however,  answer any questions posed by successor counsel that seek information involving legal advice or litigation strategy. See, e.g., Connecticut Inf. Jud. Ethics Ops. 2017-02 and 2013-12; Florida Jud. Ethics Op. 2005-19; Nevada Jud. Ethics Op. JE13-001 (2013). See also Mass. CJE Opinion No. 2001-2 (the Code does not prohibit a judge's signing an affidavit in support of a motion for a new trial filed by a former client, so long as the affidavit contains "factual, material information about which a judge has percipient knowledge").

2. Must opposing counsel be included in all communications you have with successor counsel? May you include opposing counsel is communications with successor counsel? 

Opposing counsel should not be included in communications you have with successor counsel. See CJE Opinion No. 2004-01 and Mass. R. Prof. C. 1.9.

3. May you require that communications with successor counsel be conducted in writing or in the presence of a third party who is a representative of the defendant's legal team (such as a private investigator)?

You may impose any reasonable restrictions on your communications with successor counsel, so long as any third party you include in these communications is a member of the defendant's legal team. See CJE Opinion No. 2004-01 and Mass. R. Prof. C. 1.9.

4. Must your communications with successor counsel be performed during personal time and using personal resources, such as your personal email account?

Yes. Communication with successor counsel is not a proper use of public resources under Rule 3.1(e) of the Code of Judicial Conduct. See also Young v. Southgate, supra.

This opinion affirms that a conscientious attorney about to assume the bench should anticipate future needs for information and assistance and meet them, as far as possible, before assuming judicial office. Once a judge has assumed judicial office, any conversations with successor counsel will be limited to historical facts not readily apparent from the file and similar matters of clarification.

(1) This opinion relies on 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.

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