LEO #1624 APPEARANCE OF IMPROPRIETY; DUTY OF ATTORNEY TO DISCLOSE
PRIOR CLERKSHIP FOR PRESIDING JUDGE; JUDGES

You have presented a hypothetical situation in which Judge A is a
federal district court judge in Virginia.  Attorney B, who served
as a law clerk to Judge A three or more years ago, is now an
associate attorney in a large firm with multiple offices,
including an office in Virginia, although Attorney B is not
physically located in the Virginia office, nor is Attorney B
admitted to practice law in Virginia.  Attorney B does, however,
regularly appear in Virginia pro hac vice. 

In one such case, Attorney B represents the defendant in a
federal action in the same district and division in which
Attorney B had served the clerkship and in which Judge A is still
an active judge.  Under the local practice of the court, cases
are not assigned to a particular judge and motions and trials are
assigned to judges by the chief judge.  You indicate that a
motion to dismiss the case in question was filed by Attorney B
and heard by Judge A, without disclosure by either Judge A or
Attorney B that Attorney B had previously been the clerk of Judge
A.  You state that the motion was unsuccessful but that Judge A
encouraged Attorney B to file a motion for summary judgment.

You further indicate that Attorney B subsequently filed a motion
for summary judgment in the same action which is again assigned
to Judge A. The motion for summary judgment, in addition to
raising various substantive legal questions, also involves three
additional issues directly implicating the conduct and actions of
Attorney B: (1) Attorney B defaulted on requests for admissions
under Rule 36; (2) Attorney B's client had previously been
ordered by a magistrate of the same court to provide certain
discovery material to the summary judgment motion, as to which
Attorney B also defaulted; and (3) various other discovery
disputes and problems had arisen with respect to the summary
judgment motion, many of which also implicated the actions or
inactions of Attorney B (e.g., failure to file a timely affidavit
in support of the motion). These issues are raised by the
plaintiff either in opposing summary judgment or by separate
motion scheduled by the clerk to be heard contemporaneously by
Judge A.

At the hearing on the summary judgment motion, Judge A and
Attorney B again fail to disclose any prior relationship between
them.  Judge A proceeds to rule on the "merits" of the summary
judgment motion and declines to reach the foregoing issues
implicating Attorney B's actions and defaults on the grounds that
they are "procedural," rendered "moot" by addressing the merits,
even though Attorney B concedes that the "procedural" issues were
potentially dispositive in favor of the plaintiff.  You indicate
that Judge A thereby avoided reaching any issue that calls into
question the conduct, competence, or negligence of Attorney B.

Finally, you advise that since Attorney B had been a clerk for
Judge A long before the case in question had been filed, there is
no question as to whether Attorney B was privy to any prior
judicial proceedings related to this dispute.  
You have asked the committee to opine, under the facts of the
inquiry, as to several issues related to any duty or obligation
requiring either or both Judge A and Attorney B to disclose the
prior relationship.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-102(A)(4) which prohibits a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation; DR 7-102(A)(3) which prohibits a lawyer from
conceraling or knowingly failing to disclose that which her is
required by law to reveal; DR 9-101(A) which precludes a former
judge from accepting private employment in a matter upon the
merits of which he has acted in a judicial capacity; and DR
9-101(C) which provides that a lawyer shall not state or imply
that he is able to influence improperly or upon irrelevant
grounds any tribunal, legislative body, or public official.

The committee responds to your inquiries relative to the facts
presented as follows:

     1.   As to whether Judge A had any obligation or duty to
disclose the prior relationship with Attorney B, the committee
recognizes that this inquiry raises a question of judicial
ethics, rather than lawyer ethics, and is, therefore, beyond the
purview of the committee.

     2.   As to the minimum steps necessary for Judge A to take
to remedy the problem, if such a duty or responsibility existed,
since the committee has opined that issue #1 is beyond its
purview, the question of minimum steps necessary to remedy the
problem has been rendered irrelevant.

     3.   The committee believes that the Code of Professional
Responsibility does not require an attorney to disclose that he
or she had previously served as a law clerk for a presiding
judicial official.  The committee notes that, under the facts
presented, the case in question was not related in any way to the
work previously performed by Attorney B as clerk for Judge A, and
Attorney BN neither stated nor implied an ability to improperly
influence Judge A.  There is, therefore, no impropriety under DR
9-101(A) or DR 9-101(C).  In the absence of any ethical or other
legal requirement of disclosure, there has been no violation of
DR 7- 102(A)(4).

     4.   Since the committee has opined that Attorney B did not
have a duty to disclose the prior relationship, the question as
to the minimum steps necessary to remedy the problem has been
rendered irrelevant.

     5.   Since the committee has opined that issue #1 is beyond
its purview, the question of whether the matter above described
must be reported to the appropriate judicial authorities has been
rendered irrelevant. 

          Furthermore, since the committee has opined that
Attorney B did not have a duty to disclose the prior relationship
with Judge A and that thus, minimum steps were not necessary, the
committee opines that there is no duty to report Attorney B's
failure to disclose to the Bar.


[DRs 1-102(A)(4), 7-102(A)(3); 9-101(A)(C)]

Committee Opinion
February 7, 1995