Requesting recusal is the best option when litigating against a family court master.
I practice in a county where there are part-time masters and conciliators in family court. Sometimes, while having cases before the master or conciliator, I am also litigating against that person in unrelated family court cases. Is that permissible?
Clearly, the question raises some interesting concerns. It seems almost unseemly to appear before a master/conciliator one day and the next day to be an adversary to that same person in a hard-fought, unrelated family court matter. But that happens all the time when there are part-time positions. For instance, district judges can practice part-time in civil matters and, perhaps in other counties, in criminal matters. Whether that should result in the disqualification of the judge in the case pending before the judge would have to be raised and a request made to the judge.
The Rules of Professional Conduct don't seem to cover this area of part-time employment and conflicting interests.
One would think Rule 1.11 and Rule 1.12 would apply; they deal with conflicts of former and current government employees under Rule 1.11 and former judges and mediators or third-party neutrals under Rule 1.12. But the trouble is these rules don't deal with the situation where the master or conciliator is not involved with a particular case but is trying an unrelated case. The master or conciliator could never be involved in a case where he or she was involved in hearing the evidence. But there is nothing in either of those rules that prohibit a part-time master or conciliator from deciding cases where a law firm is representing someone before them and on the next day, in an unrelated case, litigating against the same law firm.
Sometimes there are court-imposed rules that prohibit this activity. For instance, there is a Supreme Court order that law clerks in particular divisions cannot practice before those divisions. Therefore, a law clerk for a criminal judge can't also have a part-time criminal practice in the same courthouse.
Court masters or conciliators would also be considered covered under the Code of Judicial Conduct. The question is whether that would prohibit misconduct under Canons 1 and 2 under the appearance of impropriety and independence of the judicial system. The appearance of impropriety does not apply in the Rules of Professional Conduct. That appearance was written out many years ago because courts found it was overused and allowed for mental laziness as opposed to a good and crisp evaluation of the conflict. But the appearance of impropriety does exist in the Judicial Code and for good reason.
Does the proposed scenario have the appearance of impropriety? Apparently, the answer to that would be on a case-by-case basis, particularly depending on the zealousness of the litigation.
But there doesn't seem to be any hard or fast rule that might prohibit disqualification for a part-time master against hearing cases when that master is also litigating unrelated matters against the same firm. In a smaller county, such a rule could create some severe problems because it might disqualify the master in every case. On the other hand, court systems, particularly in small counties, don't necessarily have the funds to hire a full-time master or conciliator.
There doesn't seem to be any good answer here. The best practice would be for the master or conciliator not to hear cases involving law firms that are trying cases before the master or conciliator. That would be the best practice unless all parties consented to the master or conciliator's involvement. But there doesn't appear to be a direct prohibition, at least generally. Again, there might be a case-by-case reason, depending on the level of animosity in the litigation. There are also the practical considerations, as noted above.
Perhaps it is time for a Supreme Court rule in this particular area or a modification of Rules 1.11 and 1.12 to deal with conflicts when someone is in a part-time judicial position but still able to practice law. But that day has not yet arrived.
Under the question as set forth, it appears that there is no blanket reason, but the best way to handle the situation if the law firm feels the master or conciliator has been tainted or jaded by the separate litigation is to raise the issue and ask for a recusal.
Sharing details of unreported decisions could
After a court case, I went to the local bar across the street from the courthouse and several lawyers were there and started discussing war stories in terms of cases they handled. Is that a violation of confidentiality?
Client confidentiality, both by statute and in the Rules of Professional Conduct under Rule 1.6, is one of the strongest privileges the law recognizes. The attorney-client confidentiality between a lawyer and a client can rarely be broken. This rule was broadened beyond confidence and secrets by Rule 1.6, which includes anything relating to the representation.
The past notion that something was public and when the lawyer learned about it through the representation it would therefore not be privileged is gone. That information would still be privileged under Rule 1.6. But lawyers at times are too casual about protecting the confidentiality of their clients' relationships.
There is an interesting article in the Georgetown Journal of Legal Ethics' Spring 2012 edition titled "Why Doesn't Anyone Care About Confidentiality (And What Message Does That Send to New Lawyers?)" by David Chavkin. Chavkin notes several situations where there appears to be a routine violation of confidentiality. Chavkin first notes law professors who reference former clients' cases in articles, textbooks and lectures. The second situation is when lawyers and judges teach ethics and use war stories to keep interest in what they are saying and to help emphasize a particular point. The third is when lawyers share clients' stories with other lawyers, either through social interaction or to emphasize a tactical or ethical issue. The fourth is sharing clients' stories as a "social device."
Chavkin believes all of the above scenarios can result in the violation of Rule 1.6.
Chavkin did a historical study. He notes that before the Alabama Bar Association adopted a Code of Ethics in 1887, there was never a rule about client confidences. The first time that appeared was in the 1887 code. When the American Bar Association's Canons of Professional Ethics were adopted in 1908, they were based on the Alabama code.
Chavkin points out that confidentiality was not a major issue in the earlier American Bar Association codes. That changed in the 1960s with the Disciplinary Rules that were adopted and then the later Rules of Professional Conduct. Chavkin notes that the current Rules of Professional Conduct have expanded the role of privilege to go far beyond secrets and confidences.
Chavkin notes Rule 1.6 requires a lawyer to keep confidential any information gained from third parties or outside sources. This is much broader than the old Disciplinary Rule 4-101, which was limited to confidence and secrets.
Chavkin then discussed the Third Restatement of the Law of Governing Lawyers and noted that definition of confidentiality is different. That defines confidentiality as "confidential client information consists of information relating to the representation of a client other than information that is generally known." This clearly narrows the definition from the definition set forth in Rule 1.6.
The concept of "generally known" can be confusing. Chavkin expresses some concern about what is generally known in the age of Internet access. The article talks about some form of informed consent for clients to allow lawyers, particularly in teaching settings, to utilize some information. But Chavkin notes that it is sometimes difficult because clients are no longer available or are difficult to find.
Chavkin ends with a rather strong conclusion that the lawyers are routinely violating the Rules of Confidentiality under Rule 1.6 in the four settings mentioned at the beginning of this article. He suggests that these violations could undermine the confidentiality rule. The author calls for amendments to the confidentiality rule that would "expand the universe of legitimate exceptions, thereby allowing disclosure to serve important policy goals. What we cannot do is maintain the current pattern of widespread disregard of ethical obligations while winking at noncompliance."
Chavkin makes some good points. On the other hand, it appears he may be too stringent. Lawyers are allowed to talk about former cases, at least in some sort of hypothetical fashion. A lawyer doesn't have to name names but can describe certain events of cases. There doesn't appear to be anything wrong with that and it has been going on since the beginning of the legal profession. That is how lawyers learn. The problem and what lawyers have to be careful of is if specific facts and information are revealed. It is one thing to talk about a reported decision; it is another thing to go into much greater detail that is not reported.
But the article is a good wakeup for any lawyer or law professor who is lecturing or speaking. Confidentiality still exists and it is a very broad confidentiality. Lawyers have to learn to live within the framework of Rule 1.6. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.