Opinion No. 94-12

May 16, 1994

TOPIC: Lawyer's responsibility, upon becoming a judge, regarding client files and earned and unearned legal fees.

DIGEST: In winding up a law practice, a lawyer, who has become a judge, must return client files and property to the client; must return any part of a yearly retainer fee not earned; and may receive, after assuming the bench, payment of legal fees for work completed and billed as a lawyer.

REFERENCES: Rules 1.16(d) and (e) of the Illinois Rules of Professional Conduct; O'Hara v. Ahlgren, 127 Ill.2d 333, 537 N.E.2d 730, 130 Ill. Dec. 401 (1989); Illinois Supreme Court Rule 65F of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); Illinois Supreme Court Rule 66 of the Code of Judicial Conduct, Canon 6 (145 Ill.2d R. 66); Opinion 81-11, Committee on Standards of Judicial Conduct (Fla. 1988); Opinion LEO-368, Virginia State Bar Standing Committee on Legal Ethics (1980); Opinion 84-215, Judicial Inquiry Commission (Al. 1984); ABA/BNA Lawyers Manual on Professional Conduct, 45:1201, "Client Funds and Property - Duties at End of Representation", and 91:801 "Sale and Merger"; Illinois Judicial Ethics Committee Opinion 94-15.

FACTS

A sole practitioner was appointed an associate judge. Prior to assuming his judicial position, the sole practitioner was in the process of winding up his law practice. He had several questions, which are set forth below, concerning his obligation to transfer client files, his obligation to refund unearned portions of retainer fees and his right to accept payment for legal services already performed.

QUESTIONS

1. What responsibility does a newly selected judge have in the transfer of client files?

2. Is it permissible for a newly selected judge to retain the full amount of a yearly retainer fee, where the judicial appointment will prevent the provision of a full year of legal service?

3. Is it permissible for a judge to accept payment of legal fees after assuming the bench for work completed and billed while a lawyer?

OPINION

QUESTION #1

Rule 1.16(d) of the Rules of Professional Conduct sets forth the responsibility of an attorney regarding a client's files in the event the attorney withdraws from representing the client. Rule 1.16(d) provides:

...a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudices to the rights of the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled...

This Rule is certainly applicable to the situation where, as here, an attorney has been appointed to the judiciary. The attorney is responsible for delivering the client's files and property to the client or the client's designee. See Opinion LEO-368, Virginia State Bar Standing Committee on Legal Ethics (1980) (judge should notify clients of withdrawal from practice and request instructions regarding the files). If the client cannot be located, the judge, or another attorney, may retain the file, but only as a custodian until the client is located.

QUESTION #2

Rule 1.16(e) of the Rules of Professional Conduct provides:

A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

Based on this provision, a newly selected judge may not retain the full amount of a yearly retainer fee when the judicial appointment prevents the judge from providing a full year of service. The judge must return to the client any part of the retainer fee that has not been earned. See ABA/BNA Lawyers Manual on Professional Conduct, 45:1201, "Client Funds and Property - Duties At End of Representation".

QUESTION #3

While a judge may not practice law (Illinois Supreme Court Rule 65F) or receive compensation for law related or extrajudicial activities while a judge (Illinois Supreme Court Rule 66), nothing in the Code of Judicial Conduct prevents a judge from receiving legal fees earned as a lawyer. See Opinion 84-215, Judicial Inquiry Commission (Al. 1984) (judge may accept payment for legal fees earned as an attorney prior to becoming a judge).

The Committee recognizes that many issues not addressed in this Opinion will face a newly selected judge in winding up his or her law practice. For a discussion of some of these issues see ABA/BNA Lawyers Manual on Professional Conduct 91:801 "Sale and Merger" and O'Hara v. Ahlgren, 127 Ill. 2d 333, 537 N.E. 2d 730, 130 Ill. Dec. 401 (1989).