Inquiry is made as to the propriety of an attorney bringing a class action to recover the wrongful assessment of court costs in Juvenile Court when the attorney has sat as Special Juvenile Judge on limited occasions and wrongfully assessed such costs.
Disciplinary Rule 9-101(A) of the Code of Professional Responsibility prohibits an attorney from accepting employment in any matter upon the merits of which he has acted in a judicial capacity. In Formal Ethics Opinion 49 of the American Bar Association Committee on Ethics and Professional Responsibility, the prohibition from accepting employment in such instances was held to apply to cases involving similar facts. Formal Ethics Opinion 16, 30, 34, 77, 118 and 134 of the ABA relate to adverse influences and conflicting interests and pass on questions concerning the propriety of the conduct of an attorney who is a public officer in representing private interests adverse to those of the public body which he represents. Those opinions held that an attorney in public office should avoid all conduct which may tend to lead the layman to conclude that the attorney utilized a public position to further the professional success or personal interests of the attorney.
Formal Ethics Opinion 81-F-15 of the Ethics Committee of this Board held that the acceptance of a quasi-judicial position which calls upon the lawyer to conduct hearings and determine issues concerning violations of state strip mining regulations bars him and members of his law firm from acting as attorney for individuals charged with similar federal violations. The opinion pointed out that the public and private interests are inconsistent and that such a practice would diminish the public confidence in the administration of justice and demean the prestige of the public office.
When the attorney has acted in a judicial capacity on limited occasions and assessed court costs and then brings a class action to recover such costs, this constitutes a violation of the axiomatic norm of conduct expected of attorneys in their relationship with the public. Canon 9 of the Code of Professional Responsibility, "Avoiding Even the Appearance of Impropriety", should be strictly construed in such instances and no practice must be permitted which invites doubt or distrust of the integrity in our law, our courts and in the administration of justice.
This 18th day of June, 1982.
William R. Willis, Chairman
F. Evans Harvill
John R. Rucker, Senator
APPROVED AND ADOPTED BY THE BOARD