Ex-Judge Becomes Ex-Counsel Via Rule 1.12

You Can’t Blame Him for Making a Career Move

Hassett v. Olson, Third App. Dist., case no.C092212, filed 4/20/22, modified and certified for publication 4/13/22. Stephen Baily, while a Superior Court judge in El Dorado County, presided over litigating and issued orders relating to the enforceability of one Cody Bass’s options to purchase two South Lake Tahoe properties. Baily left the bench. He was then employed as co-counsel the trustees of the one of the properties, Dastur, in litigation brought by Hassett, who claimed ownership of the properties. Baily sent a letter to the assigned Judge of the El Dorado Superior Court in his capacity as counsel for Dastur citing his former status as a judge and their social relationship and suggesting the entire El Dorado Superior Court recuse itself. She did and the case was transferred to a Sacramento County judge. Hassett brought a motion to disqualify Baily, citing Rule of Professional Conduct 1.12, which says:

a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law
clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.

In support of his motion, Hassett attached Baily’s letter. The trial court granted the motion, based on the inherent power of the court (codified in Code of Civil Procedure section 128, subdivision (a)(5)) to control proceedings in the furtherance of justice. The court cited an “appearance of impropriety”, as well as a violation of Rule 1.12. The definition of “matter” in Rule 1.12 was broad enough to include Hassett’s action, even though he was not a party to the prior actions where Baily was directly involved, and Baily was found to have substantially participated in the matter. Finally, Baily’s law firm was also disqualified as there was no showing it was screened from participation as required by Rule 1.12.

The Court of Appeal affirmed. Hassett had standing, despite the fact that he was not a party to the prior actions. It was not necessary to show that Baily possessed confidential information under Rule 1.12. Matter and case are not synonymous, as shown by comment 1 to Rule 1.12. Moreover, California Rule 1.7(e) provides a broad definition that is similar to ABA Model Rule 1.11, which governs the same principles for government lawyers discussed in ABA Model Rule 1.12, the basis for the California rule.

For purposes of this rule, “matter” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons

The Court of Appeal concluded that no abuse of discretion by the trial court had been shown.

Cases interpreting the new Rules of Professional Conduct are still rare and this well-reasoned opinion is a worthy addition to prior California cases that reached similar conclusions without the benefit of Rule 1.12

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