Thursday, April 29, 2010

Judges Needing Lawyers

May a judge who needs a lawyer negotiate for a reduced legal fee?

Yes if based on legitimate factors other than judicial status, according to a recent opinion of Florida's Judicial Ethics Advisory Committee. The facts:

Prior to taking the bench, the inquiring judge was employed by a governmental entity in an executive capacity.  A member of the entity’s governing board is now under investigation, and the inquiring judge has been listed as a fact witness in the investigation. The judge’s former employer is providing an attorney free of charge to former employees being called as witnesses in this investigation.  The judge has retained counsel for this investigation and has negotiated an attorney’s fee rate somewhat lower than counsel usually charges.  The judge’s former employer has offered to reimburse a portion of these fees to the judge’s attorney, but at the same lower rate the entity is paying counsel for the other employees. The inquiring judge would personally pay the difference between the fee negotiated and the fee the former employer reimburses. The judge has voluntarily entered a disqualification order for any other cases being handled by this counsel and from any cases involving the former employer.

The opinion:

Nothing in the Florida Code of Judicial Conduct prohibits a judge from retaining personal counsel and negotiating the fee to be paid. However, the negotiated fee cannot be so low that it can reasonably be perceived as exploiting the judge’s judicial position. Canon 5D(1)(a). This Inquiry does not disclose why the judge’s attorney is willing to accept a lower rate than the attorney usually charges. The inquiring judge should inquire and insure that the fee rate is based on legitimate considerations other than the mere fact that the prospective client is a judge.

Determining the basis for the attorney’s fee rate discount may also answer the question of whether the discount must be reported as a gift, under Canons 5D(5)(h) and 6B(2). If the discount were based on routine business considerations, such as the time and labor involved, the uncomplicated nature of the representation, or the experience of the attorney in handling similar cases, all factors unrelated to client’s judicial office, no “gift” is likely to be implicated. However, if the discount were based on non-business factors, such as a professional courtesy, available to any member of the legal community, not just judges, a “gift” would appear to exist.

The inquiring judge should note that not all gifts are required to be reported under Canons 5D(5)(h) and 6B(2). Fla. JEAC Ops. 02-20 and 03-10. If this fee discount is a gift, and if this gift is not included as one of the gifts listed in Canon 5D(5) (a) through (g), it would fall into the “other” category of Canon 5D(5)(h) and must be reported.

This committee is aware of no provision of the Code, court opinion, or ethics opinion addressing the propriety of a judge accepting reimbursement of attorney’s fees incurred by the judge in connection with the judge’s former employment. In an inquiry based on very different facts, this committee concluded that nothing in the Code prohibits a judge from accepting contributions for attorneys’ fees where the judge was accused of misconduct. Fla. JEAC Op. 98-11. In this inquiry, the former employer is also contributing attorney’s fees to other, non-judge employees, so it is hard to imagine a rule that would require the judge to decline equal treatment. However, while accepting the former employer’s reimbursement, the judge should be careful to comply with other provisions of the Code, including disqualification, where appropriate. Fla. JEAC Op. 05-15.

(Mike Frisch)

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