Advisory Opinion No. 1993-1

Code Of Ethics Prohibits Executive Director Of Judicial
Review Council From Also Pursuing Active Practice
As Litigation Attorney

The acting executive director of the Judicial Review Council, F. Timothy McNamara, has asked whether he has a conflict of interest under the Code of Ethics in certain specific situations which might arise in his outside practice as a litigation attorney.

The Judicial Review Council is charged with the duty to investigate complaints of wrongful conduct by, among others, judges of the state supreme, appellate and superior courts.  In 1992, the State’s judicial review system was significantly revamped.  One of the statutory changes was the establishment of the position of executive director for the Judicial Review Council.  Public Act No. 92-160, Section 7(a).  Under the new law, the executive director has the authority to investigate complaints and to present evidence obtained in any such investigation to the Council.  Id., Section 7(b).

The Code of Ethics for Public Officials defines a state employee as “any employee in the executive, legislative or judicial branch of state government, whether full or part-time, and any employee of a quasi-public agency, but shall not include a judge of any court, either elected or appointed.”  Conn. Gen. Stat. §1-79(q).  The Council’s executive director is a state employee and is therefore subject to the Code of Ethics.[1]

Attorney McNamara’s specific conflict of interest questions are overshadowed by a more far-reaching ethical problem raised by the facts he has presented.  The Code of Ethics prohibits a state employee or public official from accepting “other employment which will impair his independence of judgment as to his official duties or employment or require him, or induce him, to disclose confidential information acquired by him in the course of and by reason of his official duties.”  Conn. Gen. Stat. §1-84(b).  The executive director’s role as the investigator of claims of alleged misconduct against, among others, appellate and trial court judges, is a vital and highly sensitive one.  In its report to the General Assembly recommending changes to the Judicial Review Council, the Legislative Program Review and Investigations Committee stated that “it is important that the council staff be independent.  An independent staff would help eliminate any appearance of a conflict of interest resulting from the part-time use of active legal professionals... The council should hire a full-time executive director and an administrative assistant to staff the new administrative office...  In addition, the executive director should be statutorily empowered to investigate complaints and present evidence gathered as a result of council investigation.”  Legislative Program Review and Investigations Committee Report, May 1992, p. 31.  Nothing in the legislative history of the proceedings in the state House and Senate is at variance with the emphasis placed on the importance of an independent committee staff by the Committee charged with improving the judicial review system.

The State Ethics Commission notes that many of its own duties and responsibilities parallel those of the Judicial Review Council.  As with the State Ethics Commission, the investigations conducted by the Judicial Review Council must be kept confidential prior to a decision of the Council on whether probable cause exists that the respondent is guilty of inappropriate conduct.  Conn. Gen. Stat. §51-511, as amended by Public Act No. 92-160, Section 3.  Just as it would be inappropriate for State Ethics Commission attorneys to appear before those they regulate, so it is inappropriate for the Judicial Review Council executive director -- whose statutory responsibilities include the ability to investigate complaints filed with the Judicial Review Council -- to appear as a paid legal representative before the very individuals he regulates.  Even the most cautious executive director/trial attorney who asks not to have his client’s case heard by a certain judge in order to avoid any impropriety would face an inescapable conundrum, because the very act of avoidance breaches the judge’s confidentiality as to the fact of an investigation by the lawyer in his role as Council director.

The Commission finds it noteworthy that the American Bar Association’s Joint Committee on Professional Discipline and Disability Retirement has promulgated current and proposed Model Rules for Judicial Discipline which, if followed by Connecticut’s Judicial Review Council, would prohibit Attorney McNamara from serving as its executive director.  For example, the current rule states that the executive officer appointed by a judicial discipline commission “shall not otherwise engage in the practice of law nor serve in a judicial capacity.”  See Model Rules, Rule 4(d).

The inevitable conflict between the executive director’s duty to his private clients and his duty to the state--a conflict fueled, however inadvertently, by his access to confidential information which it is possible only he and a particular judge share--cannot help but affect his independence of judgment.  Similarly, it would be unrealistic to expect those who deal with him in the courtroom to separate the private practice litigator from the public service investigator.  It is unavoidable that sitting judges will be conscious of the potential power Attorney McNamara wields.  It is unavoidable that opposing counsel will be affected by his state office:  not only must they be concerned about his influence over sitting judges, but as potential witnesses to any act of judicial misconduct, they might very well be placed in the untenable position of revealing sensitive confidential information to Attorney McNamara in his role with the Council only to face him as an adversary in a situation where such information or even the very fact of the lawyer’s cooperation with the Council could adversely affect the lawyer’s representation.  And, it is unavoidable that those who hire him as their counsel will recognize the opportunity for a unique, albeit inappropriate, advantage over their opponents.

Attorney McNamara raises another concern under the Code of Ethics.  Specifically, Mr. McNamara states:  “In the event that I were on trial with a particular judge, I would so notify the secretary of the Commission of his or her name and direct that I not be informed until the trial and post trial motions were decided on any complaint.”  The State Ethics Commission has held on numerous occasions that a state employee’s outside employment may not interfere with the performance of his state duties.  See for example, State Ethics Commission Advisory Opinion No. 89-30, 51 Conn. L.J. No. 25, p. 1E (12/19/89).  Putting his investigations for the Judicial Review Council on hold until his private business is concluded would clearly constitute an impairment of independence of judgment under Conn. Gen. Stat. §1-84(b).  Also, an executive director who is a practicing trial attorney could use his position at the Council as an excuse to “judge shop,” (that is, to pick and choose the judges before whom he wishes to appear) without anyone knowing whether a confidential matter concerning a particular judge in fact exists.

In short, a Judicial Review Council executive director who practices before those whom he regulates would violate Conn. Gen. Stat. §1-84(b).  Of course, this prohibition would not prevent, for example, a retired litigator, a law professor or any other attorney who would not simultaneously be trying cases in the state, from accepting the position.

Since, under the Code of Ethics, Mr. McNamara cannot hold both positions, the Commission will not address the specific questions regarding his legal representation of clients in certain situations.

Finally, under the current statutes governing the Judicial Review Council and under previous State Ethics Commission decisions, the attorney/members of the Council are not similarly prohibited from actively pursuing a litigation practice in the state.  The attorney/members are designated by statute to sit on the Council.  Conn. Gen. Stat. §51-51k, as amended by Public Act No. 92-160.  The State Ethics Commission has previously held that when the legislature specifically designates a representative of a particular profession to sit on a board, the legislature is considered to have waived any inherent impairment of independence of judgment which might exist under Conn. Gen. Stat. §1-84(b).  The reason for the waiver of the §1-84(b) conflict is that the source of the very expertise which the legislature has deemed important to the performance of the state office is the otherwise problematic outside employment.  See State Ethics Commission Advisory Opinion No. 80-20, 42 Conn. L.J. 26, p. 21 (12/23/80).  Here, the legislative history clearly shows that the appointment of a trial attorney to be a member of the Judicial Review council was contemplated and is permissible.  Nothing in the Council’s statute or legislative history or in Ethics Commission precedent provides a similar waiver for the Council’s executive director position, however.

By order of the Commission,

Christopher T. Donohue
Chairperson

[1] During the consideration of this matter, counsel for the Judicial Review Council raised the issue of whether the Council is part of the judicial, legislative or executive branch of government.  Although there is convincing evidence that the Council is not part of the judicial branch (in fact, for example, Connecticut’s Chief Court Administrator Judge Aaron Ment testified before the Legislative Program Review and Investigations Committee that the Council is “not part of the judicial branch”--Committee minutes, 2/6/92, p. 9) this Commission need not decide the question for the purposes of this opinion, since the Council’s executive director is subject to the Code regardless of the branch of government by which he is employed.