Advisory Opinion No. 95-10

Re: William A. Poore, Esq.

Attorney William A. Poore, on behalf of five attorney members of the state's Judicial Nominating Commission, requests an advisory opinion as to the propriety of their evaluating the application of (then) Acting Chief Justice Weisberger for the permanent position of Chief Justice of the Rhode Island Supreme Court.

Attorney Poore, on behalf of the Commission members, has advised the Ethics Commission that the Judicial Nominating Commission was created by legislative enactment and is charged with the responsibility of recommending qualified nominees for judicial office with the state. By statute, the Commission is composed of nine members, five of whom are members of the Rhode Island Bar and who are presently engaged in the active practice of law.

Attorney Poore has further advised the Ethics Commission that, at the time of the Judicial Nominating Commission's review of the application submitted by (then) Acting Chief Justice Weisberger, each of the five lawyer-members of the Commission were representing clients who had legal matters pending before the Rhode Island Supreme Court.

In addition to a written submission, members of the Judicial Nominating Commission and their counsel advised the Ethics Commission that for purposes of their recommendations to the Governor regarding applicants for the position of Chief Justice, their role is one of recommendation. The final appointment decision is made by the Governor based upon the recommendations forwarded to him/her by the Commission.

Based upon the representations by attorney Poore and members of the Judicial Nominating Commission, both in writing and at an open session of this Commission, the Ethics Commission is satisfied that the lawyer-members of the Judicial Nominating Commission may evaluate the application by (then) Acting Chief Justice Weisberger for the position of Chief Justice of the Rhode Island Supreme Court while they are simultaneously serving as advocates for clients in matters pending before the Rhode Island Supreme Court, and that such conduct in this instance does not fall within the prohibitions of the Code of Ethics.

The Commission notes, however, that a significant factor in its formulation of this opinion is the fact that the ultimate decision as to whether an applicant being evaluated by the Judicial Nominating Commission who also is a sitting judge actually reviews and considers a litigation matter pending in his or her court rests with the jurist; i.e., in this instance (then) Acting Chief Justice Weisberger will determine whether he will sit on matters in which the lawyer-members of the Commission are serving as advocates for clients in matters pending before the Rhode Island Supreme Court. Based upon proceedings before this Commission there is no indication that that is the case. The Commission also notes that once the lawyer-members of the Commission make their recommendations to the Governor they no longer have any jurisdiction and/or authority over whichever applicant is ultimately appointed by the Governor and, absent some other information or evidence, any potential for a conflict of interest on behalf of the Commission members ceases at that point.

Keywords

Acting as Agent