Adopted December 27, 1934

The Board is in receipt of the following request for an advisory opinion:

“Rule No. 38 of the ‘Rules of Professional Conduct’ reads in part as follows: ‘A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity.’ I would appreciate an opinion advising of just what would be considered as having acted on the merits of a matter in a judicial capacity.”

In Opinion No. 49 of the Committee on Professional Ethics and Grievances of the American Bar Association, it was said:

“A lawyer, who has previously occupied a judicial position or acted in a judicial capacity, should refrain from accepting employment in any matter involving the same facts as were involved in any specific question which he acted upon in a judicial capacity and, for the same reasons, should also refrain from accepting any employment which might reasonably appear to involve the same facts. If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil.”

The interpretation of the rule in the foregoing opinion is accepted as correct by the Board of Governors.

The phrase “the merits” of a case has a broad meaning well understood by the profession. Like other phrases used in the law, it would be quite impossible to prepare a comprehensive definition embracing the whole subject. Each case must stand upon its peculiar facts. Generally speaking, a judge passes upon the merits of a matter when his decision affects any of the substantial rights of the parties, as opposed to mere matters of procedure, etc.