Ethics vs. etiquette

Ethics opinions advise that a former judge who returns to the practice of law may not use a title such as “Judge,” “Honorable,” or “Hon.,” even modified by “Former,” “Retired,” or “Ret.,” in conjunction with his practice, including mediation or arbitration.

The Ohio advisory committee explained:

The typical justification provided when a former judge refers to himself or herself using a judicial title is the adage “once a judge, always a judge.”  This adage is referenced in social etiquette rules, usually on questions regarding the proper title to be used in correspondence or introductions.  The reliance on “once a judge, always a judge,” however, is misplaced in modern American legal and judicial ethics.  The adage is actually a restatement of the long-standing convention that British judges are generally not permitted to return to the practice of law. . . .

“’Judicial titles are not portable.  They stay with the position, not the individual.  Former judges must gracefully relinquish the prestige of judicial office when they step down to return to practice before the bench rather than behind it.’”

The committee concluded that a former judge should not refer to himself using a judicial title prior to his name when practicing law regardless whether the title is capitalized or modified by “former” or “retired.”  Ohio Advisory Opinion 2013-3.

However, about a year later, the Ohio Rules of Professional Responsibility were amended to add a provision (Rule 8.2(c)) that states, “[a] lawyer who is a retired or former judge or magistrate may use a title such as ‘justice,’ ‘judge,’ ‘magistrate,’ ‘Honorable’ or ‘Hon.’ when the title is preceded or followed by the word ‘retired,’ if the lawyer retired in good standing with the Supreme Court, or ‘former,’ if the lawyer, due to the loss of an election, left judicial office in good standing with the Supreme Court.”  A comment states that the rule controls if there is conflict with Ohio Advisory Opinion 2013-3.

The American Bar Association Model Rules of Professional Conduct and most state rules, however, do not have such a provision.  The ABA Committee on Ethics and Professional Responsibility concluded that a former judge who uses the title “Judge” or “The Honorable” when she returns to the practice of law violates several of the model rules.  ABA Formal Advisory Opinion 95-391.  Thus, the committee advised, a former judge may not have her law office telephone answered “Judge X’s office,” may not sign correspondence and pleadings “Judge X,” and may not have her name appear on a nameplate or firm letterhead as “Judge X” or “The Honorable.”

The committee reasoned that the use of the title “Judge” by a former judge in the practice of law was “misleading insofar as it is likely to create an unjustified expectation about the results a lawyer can achieve,” in violation of Rule 7.1, and stated or implied “an ability to influence improperly a government agency or official,” in violation of Rule 8.4(e).  The committee also advised that a former judge should not encourage others to refer to her as “Judge X” or “Your Honor” in the courtroom or in legal proceedings, stating the use of the title in that context may give the former judge’s client an unfair advantage “particularly in the courtroom before a jury.”  In fact, the committee noted, there appears to be no reason for a former judge to use the judicial title in the practice of law other than to create an justified expectation or to gain an unfair advantage.  (The committee did state that a former judge may inform potential clients about prior judicial experience, as long as the description is accurate and does not imply special influence.)

The advisory committee for federal judges concluded that sitting judges have the responsibility to ensure that a former judge appearing before them is not called “judge” in their courtroom or in pleadings unless that designation is necessary to accurately describe a status at a time pertinent to the lawsuit.  U.S. Advisory Opinion 72 (2009).  The committee explained:

Historically, former judges have been addressed as “judge” as a matter of courtesy. Until recently there have been very few former federal judges.  With federal judges returning to the practice of law in increasing numbers, ethical considerations arise.  The prospect of former federal judges actively practicing in federal courts turns what otherwise might be an academic question into a matter of practical significance.

. . .  A litigant whose lawyer is called “Mr.,” and whose adversary’s lawyer is called “Judge,” may reasonably lose a degree of confidence in the integrity and impartiality of the judiciary.  In addition, application of the same title to advocates and to the presiding judicial officer can tend to demean the court as an institution.

See also Arizona Advisory Opinion 2016-2 (a retired judge may not in advertisements for her private arbitration and mediation services use “Judge”, “Honorable” or “Hon.,” even in conjunction with “former,” “retired,” or “ret.,” or use a photograph of herself in judicial robes in connection with extra-judicial activities but may make accurate statements about her prior judicial experience in biographical information a customer would be entitled to know about a prospective service provider); Florida Bar Standing Committee on Advertising A-09-1 (a retired judge engaged in the practice of law may not use “Judge” as a title on letterhead, business cards, or in advertising regardless whether the title is modified by “former” or “retired” but may accurately indicate that he is a “retired judge” or a “former judge”); Maryland Advisory Opinion Request 2003-26 (a retired judge may not identify himself as a retired judge when signing off on decisions as a mediator or arbitrator or on letterhead used for related correspondence, but his past judicial service may be reflected on his résumé); Michigan Advisory Opinion RI-327 (2001) (a former judge may not retain the title “Honorable” after entering private practice by, for example, naming his law practice “Honorable XXX Doe and Associates” and placing this on the letterhead); South Carolina Advisory Opinion 21-1997 (a retired judge’s name may be included in a law firm’s Yellow Pages advertisement as long as it does not refer to her being a retired judge); Texas Advisory Opinion 155 (1993) (a retired judge subject to assignment may not use the title “judge” or “justice” on letterhead, in directories, or in any other pubic way related to the practice of law).  Cf., Washington Advisory Opinion 2002-17; (in advertisements offering mediation and arbitration, a former judge or justice may use a title such as “judge” or “justice” accompanied by “retired,” “ret.,” or “former” but may not refer to herself as “The Honorable” or “Hon.”).

 

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