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
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