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OBA Ethics Counsel

Ethics Opinion No. 116

Adopted September 25, 1936

A former District Judge states that while he was on the bench a certain suit was brought in his court; that the defendant filed a motion to make the petition more definite and certain; that the case was placed on the motion and demurrer docket by the clerk; that when the case was called before him the plaintiff's attorney stated that he desired to file an amended petition, whereupon the defendant's attorney stated that, since no answer had been filed, the plaintiff had the right, under the law, to file an amended petition; that this was agreed to by both parties; that no order was made by the court; that the clerk made a minute to the effect that the plaintiff was allowed twenty days within which to file an amended petition; that no statement was made as to the nature of the suit or the facts upon which it was based; and that, after the term of the Judge had expired, one of the parties sought to retain him in the case.

The former District Judge inquires whether or not, should he accept the retainer under the circumstances related, there would be any appearance of a violation of Rule 38 of the Rules of Professional Conduct, which provides:

"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."

It is the opinion of the Board that the former District Judge in accepting the employment referred to, would violate neither the letter nor the spirit of the rule referred to. He did not act upon any matter in the cause, and it is obvious that he did not pass upon the merits of the case which affected any of the substantial rights of the parties. See, in this connection, Advisory Opinion Number 82 (Adv. Op. p. 149).