Legal Ethics Opinion No. 1439

Appearance of Impropriety: Former Commissioner in Chancery's
Former Firm Representing Party Who Appeared Before Commissioner  

You have presented a hypothetical situation in which a
Commissioner in Chancery was a partner in a multi-lawyer firm. 
On a given date, a final decree was entered by the Circuit Court
divorcing Mr. and Mrs. Doe, pursuant to the recommendation of the
same Commissioner in Chancery, after a contested hearing. 
Subsequent to that date, the Commissioner withdrew as a partner
from the firm to assume a judgeship in the district court.  At a
later date, Mr. Doe sought representation by an attorney in the
Commissioner's former law firm for representation concerning a
petition to transfer custody of Mr. and Mrs. Doe's child from
Mrs. Doe to Mr. Doe. The attorney had been a member of the
Commissioner's former firm at the time the Commissioner heard
evidence in the divorce case. 

You have asked the committee to opine whether, under the facts of
the inquiry, it is ethical for any member of the Commissioner's
former firm to represent Mr. Doe in this proceeding.

The appropriate and controlling Disciplinary Rule related to 
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your inquiry is DR 9-101(A) which states that a lawyer shall not
accept private employment in a matter upon the merits of which he
has acted in a judicial capacity.

The committee has previously opined that it would be improper for
an attorney who, in his capacity as a Commissioner in Chancery,
reported on accountings involving an estate, to subsequently
serve as counsel, and file a suit for, beneficiaries of the
estate. See LEO #269.  The committee has also previously opined
that it is not improper for a member of a law firm, other than
the lawyer who acted as the substitute judge, and heard the
traffic case, to undertake the representation of an insured
defendant in a civil suit which arose as a result of the traffic
accident heard by the substitute judge.  See LEO #686.

The committee is of the opinion that the exhortation against the
appearance of impropriety, as expressed in DR 9-101(A), is
personal to the former judicial official and that it does not
extend to other members of a former official's former firm. 
Since the lawyer who served as Commissioner in Chancery is no
longer affiliated with the firm, the committee is of the opinion
that it would not be improper for the another attorney in the
present firm to represent the husband in his petition for
transfer of custody, when that petition arose out of the final
decree which was entered as a result of the Commissioner/former
partner's recommendation.

Committee Opinion
October 21, 1991