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Abstract 98/99-08

Summary of Facts Provided

Lawyer A is an associate in a law firm. Lawyer B is a partner in the same law firm and also serves as a part-time municipal judge for the city in which the firm is located. Lawyer B is appointed on an annual basis by the city and is paid directly by the city; the firm does not receive any sort of fee or salary in connection with Lawyer B's service as a part-time municipal judge.

Issues and Conclusions

Is it ethical for Lawyer A to represent criminal defendants in county court where city law enforcement personnel are expected to testify, even though Lawyer B is employed as a part-time municipal judge for the city? Yes.

One potential problem involves conflicts of interest, Colo. R.P.C. 1.10(a) prohibits a lawyer in a firm from knowingly representing a client when any one lawyer in the firm practicing alone would be prohibited from doing so by Colo. R.P.C. 1.7, 1.8(c), 1.9 or 2.2. Given the facts presented, however, it does not appear that Lawyer B would have a conflict of interest, so there is not imputed conflict under Rule 1.10(a).

Another potential problem involves Colo. R.P.C. 1.12, which prohibits a lawyer in a firm from representing anyone in a matter in which another lawyer in that firm participated personally and substantially as a judge, unless (1) all parties to the proceeding consent after disclosure or (2) the disqualified lawyer is "screened" from the case, and written notice is given to the appropriate tribunal. In this regard, a lawyer is "screened" from a case when he or she is barred from participating in it and is not apportioned any fee from it. Given the facts presented, however, Rule 1.12 does not prohibit Lawyer A from representing clients in county court because Lawyer B serves as a part-time municipal judge.

This issue was addressed in Formal Opinion 45 (1984 & 1996 Addendum) [26 The Colorado Lawyer 58 (May 1997)]. Formal Opinion 45 concludes that a lawyer may not accept employment with respect to matters which have or may come before the lawyer who is a part-time judge or which derive from or are incidental thereto or matters involving persons who are parties to any matter which has or appears likely to come before the lawyer in his capacity as judge. In addition, the Opinion states that anyone practicing with a lawyer who is a part-time judge shall not accept any employment which the part-time judge could not. As noted in Formal Opinion 45, these prohibitions are necessary to maintain the public's confidence in the judicial system.