February 10, 1997
A lawyer may not represent a client on a petition to adjust child support or for collection of child support, when the lawyer while serving as a judge had issued the support order, unless all parties consent after consultation.
If the lawyer's participation is precluded, no other member of the lawyer's firm may undertake or continue the representation, unless the lawyer is screened from any participation in the matter, will be apportioned no part of the fee, and the tribunal before which the matter is pending is given prompt written notice in order that it may ascertain compliance with the screening requirement.
References: MRPC 1.12(a) and (c); JI-28, JI-29; RI-260.
Advice is sought as to whether a former circuit judge, after leaving the bench, may represent a party on a petition to adjust child support or to collect child support where the lawyer, while serving as a judge had issued the specific support order which is at issue.
MRPC 1.12(a) states:
"(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after consultation."
The Rule makes no distinction as to whether or not the matter is pending before the court on which the lawyer had previously sat as judge. MRPC 1.10(b) contains a similar provision with respect to lawyers and prior representation. See JI-28, JI-29. RI-260 concluded that a lawyer who was appointed by the court as a special master and issued a report regarding findings and recommendations, may subsequently represent one of those parties in a legal malpractice action against a lawyer who participated in the prior proceeding, where the two matters are not the same and the special master did not receive any information while acting as the special master that was not generally known or readily available by other means. Emphasis added.
Thus, unless all of the parties consent after consultation, the lawyer may not represent a party in the child support proceeding in question.
Where consent of all the parties is not obtained, and the lawyer (former judge) is precluded from representing a party in the proceeding in question, other members of the lawyer's firm would likewise be precluded unless specific conditions are met. MRPC 1.12(c) states:
"(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter, unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule."
If the lawyer is precluded from such representation, other members of the lawyer's firm would be likewise precluded unless the lawyer is screened from all participation in the matter, will be allocated no portion of the fee, and the court before which the matter is pending is promptly notified in writing so that it can monitor compliance with these rules. In accord JI-97.