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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of CA Rule

Primary California References:
Background References: ABA Model Rule 1.12, Other Jurisdictions
Commentary:

1.12:101      Model Rule Comparison

There is no California counterpart to MR 1.12. However, implicit in the case law, California has adopted some of the concepts set forth in MR 1.12. [See 1.12:400 Screening to Prevent Imputed Disqualification, infra].

1.12:102      Model Code Comparison

California has no counterpart to DR 9-101(A). However, for the anticipated California approach to this topic [see 1.12:200 Former Judge or Arbitrator Representing Client in Same Matter, infra].

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary California References:
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA 91.4501

In Cho v. Superior Court (2nd Dist. 1995) 39 Cal.App.4th 113, 45 Cal.Rptr.2d 863 the court disqualified a law firm from representing a client in a lawsuit after the law firm employed the retired judge who had presided over the action and had received ex-party confidences from the opposing party in the course of settlement conferences. A fortiori the former judge would have been disqualified from directly representing the client.

1.12:300   Negotiating for Future Employment

Primary California References:
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA 91:4001, ALI-LGL 206, Wolfram 8.10

Although there is no direct California authority on this point, for a discussion of Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr. 768 [see 1.10:200 Imputed Disqualification Among Current Affiliated Lawyers, supra].

1.12:400   Screening to Prevent Imputed Disqualification

Primary California References:
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA 91:4501, ALI-LGL 203, 204, Wolfram 7.6.4

The following comments are taken from Karpman & Margolis page 49 with certain conforming changes:

A law firm must be disqualified as counsel in a lawsuit after employing the retired judge who had presided over the action and had received ex parte confidences from the opposing party in the course of settlement conferences. The court concluded that screening procedures are not sufficient to preserve public trust in the justice system in these circumstances and therefore the firm must be disqualified. Cho v. Superior Court (2nd Dist. 1995) 39 Cal.App.4th 113, 45 Cal.Rptr.2d 863.

A former court commissioner could properly be disqualified from personal participation as counsel in divorce proceedings where he had previously heard part of the actions in his official capacity. However, with appropriate screening procedures were established, the other members of the law firm would not be disqualified. Higdon v. Superior Court (5th Dist. 1991) 227 Cal.App.3d 1667, 278 Cal.Rptr. 588 (the court suggested that screening might require both screening in the participation of the case and in the receipt of fees from the case).

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary California References:
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA 51:1501

There is no direct California authority on the situation envisioned by MR 1.12(d), that is, the ability of an arbitrator selected as a partisan of a party in a multi-member arbitration panel to subsequently represent that party.