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OBA Ethics Counsel

Ethics Opinion No. 101

Adopted January 24, 1936

The Board of Governors is in receipt of the following request for an opinion:

"While I was Judge of the Superior Court, "A" brought suit in that court to annul marriage of himself and "B". I entered a decree annulling the marriage.

At that time, unknown to the court, "B" was pregnant, and afterwards gave birth to a child.

Soon after the annulment the Mother died and the Grandmother on the Mother's side took custody of the child. "A" then brought suit in my court to obtain custody of the child. The case was not contested and, it appearing that "A" was a man of exemplary habits and able to support the child, I signed the order granting to "A" the custody of the child.

Recently the Grandmother brought a habeas corpus proceeding in the District Court which court, by order, allowed support money to her and divided the time of the custody of the child between "A" and the Grandmother. The Grandmother is dissatisfied with this order and desires to employ me to institute a proceeding in the Superior Court, having for its purpose the awarding of the exclusive custody of the child to her. May I accept this employment without violating any rule of professional conduct?"

In response:

You may not. The first paragraph of Rule 38 of the Rules of Professional Conduct reads as follows:

"A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity."

As Judge of the Superior Court you acted upon the merits of a controversy with reference to the custody of the child, regarding which it is now sought to employ you. Such employment is clearly interdicted by the rule referred to.