CJEO Expedited Opinion No. 2023-050 — Judicial Obligations for Prior Service by an Appellate Staff Attorney in a Pending Matter

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Expedited Opinion1 2023-050
[Posted July 13, 2023]
JUDICIAL OBLIGATIONS FOR PRIOR SERVICE BY AN APPELLATE STAFF
ATTORNEY IN A PENDING MATTER
I. Question
The Supreme Court Committee on Judicial Ethics Opinions (CJEO) has been asked about
an appellate justice’s ethical obligations where the justice has been assigned criminal appeals
1 The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) issues
Expedited Opinions, formerly known as Oral Advice Summaries, pursuant to California
Rules of Court, rule 9.80(i)(1) [eff. Jan. 1, 2021]. Expedited Opinions are issued to requesting
judicial officers following a discretionary decision by CJEO to address the ethical issues raised
in an expedited process that does not include posting draft opinions for public comment, as
required for CJEO Formal Opinions. The CJEO Expedited Opinions are published in full,
without identifying information regarding the requesting judicial officer, to provide information
and analysis to the bench and public regarding judicial ethics.

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involving defendants who may be, or may have been, unnamed class members in one or more
certified civil class actions challenging conditions of criminal confinement in which the justice’s
current staff attorney previously represented the class while employed in private practice as
class counsel.
As a matter of practice, and to comply with the ethics requirements for judicial
impartiality, the justice does not assign the staff attorney to work on any matter involving a
named class member, or any matter involving an unnamed class member with whom the staff
attorney interacted, and the staff attorney also does not work on any appeal involving the subject
matters at issue in the civil class actions. The justice asks whether there are broader
disqualification requirements or obligations beyond these regular practices.
II. Facts
While in private practice, the staff attorney was counsel of record in several related civil
class actions representing various certified classes of correctional inmates challenging various
conditions of confinement. In private practice, the staff attorney also had interactions and
involvement with at least two other civil class actions challenging correctional conditions, but
not as counsel of record. For all of these class actions, the class membership changed as
individuals moved in and out of the correctional system and they became or ceased to be subject
to a condition that could qualify them for membership in the class.
The justice asks whether the staff attorney is precluded from working on any criminal
matters that might involve unnamed class members, and relatedly, how to identify those
unnamed class members and the time period from the staff attorney’s private practice for which
any preclusion applies.
III. Advice Provided
A judicial officer’s ethical obligations do not require disqualification of a staff attorney for
prior representation in private practice of unnamed class members who appear in matters before
the justice within two years of the judicial assignment, so long as those class members remained

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unnamed during the two-year period of prior representation. It would not be reasonable for a
person aware of the facts to doubt the staff attorney’s impartiality towards unnamed class
members the staff attorney does not know or could not have known the identity of during the
two-year period of representation.
However, if any unnamed class member became a named class member during the two-
year period of prior representation, the justice’s ethical obligation would be to preclude the staff
attorney from working on the assigned appellate matter of that named class member. Similarly,
the committee advises that the same would be required for any named client of an attorney with
whom the staff attorney was associated in private practice during the two-year period, including
any unnamed class members who became known and named within two years of the justice’s
assignment of a matter in which the class member is a party. (Canon 3E(5)(b).)
The justice’s regular practice of not assigning the staff attorney to work on any appeal
involving the subject matter that was at issue in the civil class actions fulfills any of the justice’s
obligations under canon 3E(5)(a) because it would necessarily include representation in another
related proceeding or giving advice on any issue in the present proceeding. The justice’s regular
practice of not assigning the staff attorney to work on any matter involving a named or unnamed
class member with whom the staff attorney interacted fulfills the justice’s remaining obligations
under canon 3E(5)(b) because it would necessarily include representation of a private practice
client of the staff attorney within the two years prior to judicial assignment of the criminal
appeal. When a staff attorney is disqualified from an appeal, the justice is required to take
reasonable steps to effectively eliminate the staff attorney’s active and substantive involvement
in the appeal.
It is the committee’s opinion that the justice has no further obligations regarding unnamed
class members during the two-year period specified in provision 3E(5)(b). An analytical
discussion of these conclusions follows.

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IV. Discussion
Canon 3C(3) of the California Code of Judicial Ethics2 places a duty on judicial officers to
“require staff and court personnel under the [justice]’s direction and control to observe
appropriate standards of conduct and refrain from … manifesting bias or prejudice ... in the
performance of their duties.” For appellate staff attorneys, appropriate standards of conduct are
specified in Code of Ethics for the Court Employees of California [Revised Oct. 2009], as
adopted in the California Court of Appeal Judicial Attorney Manual (manual), which provides
guidelines and model standards for individual appellate districts to adopt or modify [Third Ed.,
Revised 2013]. The manual directly addresses conflicts of interest for prior representation of an
appellate party by an appellate staff attorney:
“As is the rule for justices, disqualification is necessary if the attorney ‘has appeared or
otherwise served as a lawyer in [a] pending proceeding, or has appeared or served as a
lawyer in any other proceeding involving any of the same parties if that other proceeding
related to the same contested issues of fact and law as the present proceeding.’ (See Cal.
Code Jud. Ethics, canon 3E(5)(a); Code Civ. Proc. § 170.1, subd. (a)(2).) In addition, a
judicial attorney should withdraw from a case if, within the last two years preceding
employment at the court, a party in the case was a client or the attorney practiced law with
a lawyer in the case. (See Cal. Code Jud. Ethics, canon 3E(5)(b).)” (Manual, supra,
§11.11, p. 147.)
Accordingly, the standards applicable to appellate staff attorneys arise from and correspond
to the justice’s disqualification and other obligations under the Code of Judicial Ethics. A
judicial officer’s canon 3C(3) obligation to ensure that these standards are upheld necessarily
requires an examination of the justice’s own disqualification requirements. The question of
whether an appellate staff attorney’s prior service as a lawyer may impact the justice’s broader
ethical obligations must be answered by examining the judicial disqualification rules for a
justice’s prior service as a “lawyer in the proceeding.” (Canon 3E(5).)
2 All further references to the code, canons, and advisory committee commentary are to the
California Code of Judicial Ethics unless otherwise indicated. All further references to the
statutes are to the Code of Civil Procedure unless otherwise indicated.

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For appellate justices, those specific rules are contained in provisions (a)-(c)3 of canon 3E(5).
Provision (a) requires disqualification if the justice (i) served as a lawyer in the same
proceeding, (ii) served as a lawyer in another proceeding involving a present appellate party and
involving the same contested issues of fact and law as the present proceeding, or (iii) has given
advice to any party in the present proceeding on any issue involved in the present proceeding.
Provision (b) requires disqualification if, within the last two years, a party was (i) a client of the
justice, (ii) a client of a lawyer with whom the justice was associated in the practice of law, or
(iii) a lawyer in the proceeding was associated with the justice in the private practice of law.
In several advisory opinions, this committee has interpreted the statutory provisions
applicable to disqualification of trial court judges for prior service as an attorney. (CCP
170.1(a) (2)(A)-(C); CJEO Formal Opn. 2015-007 (2015), Disqualification for Prior
Appearance as a Deputy District Attorney in a Nonsubstantive Matter, Cal. Supreme Ct. Com.
Jud. Ethics Opns.; CJEO Oral Advice Summary 2016-017 (2016), Disqualification for Prior
Appearance as a Deputy District Attorney in Another Proceeding, Cal. Supreme Ct. Com. Jud.
Ethics Opns.) The statutory grounds for superior court disqualification examined in those
opinions are substantially similar to those contained in canon 3E(5), which are described above
as applicable to appellate justices. (Compare Code Civ. Proc. § 170.1, subd. (a)(2)(A)-(C) with
canon 3E(5)(a)-(c); see also Advisory Com. commentary foll. canon 3E(5)(a) [appellate
disqualification grounds based on prior representation of a party by the justice in canon 3E(5)(a)
are consistent with the statutory grounds applicable to trial judges].)4
3 Provision (c), which applies to prior governmental service, is not relevant under the
circumstances described where the staff attorney was previously in the private practice of law as
class counsel of record for several civil actions challenging correctional institution conditions.
4 For purposes of this discussion, further references will be to the provision letters that are
identical in both the statute applicable to trial judges and the canon applicable to appellate
justices, by interchangeably referring to those provision letters distinguished only by
capitalization. For example, references to provisions “(A)” or “(a)” refer correspondingly to
both the grounds applicable to trial court judges in CCP 170.1(a)(2)(A), discussed in prior CJEO
opinions, and also to the similar and consistent grounds in canon 3E(6)(a) applicable to appellate
justices, unless otherwise noted in the discussion.

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In these advisory opinions, the committee concludes that statutory provision (A) applies to
any prior active and substantive involvement as an attorney in the same matter now before the
judicial officer and to any prior active and substantive service in another matter involving the
same issues of fact and law as in a present matter before the judicial officer. (CJEO Formal
Opn. 2015-007, supra, pp. 3, 14; CJEO Oral Advice Opn. 2016-017, supra, p. 2, 5; accord,
Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) [195 L.Ed.2d 132, 141] [federal due process sets
a ‘significant, personal involvement’ standard requiring disqualification of a judge who ‘actively
participated’ as a lawyer in the case now before the judge].) As concluded, while provision (A)
broadly applies to prior service by any attorney, provisions (B) and (C) apply to specific types of
attorneys or law practice. Specifically, provision (B) applies to attorneys in private practice
when a former client appears in a case now before the judicial officer, and provision (C) applies
to attorneys in governmental practice representing and advising public officials, officers, or
entities. The statutory and canon progression of these broad to specific provision grounds
provide the analytical framework for determining whether prior service as a lawyer by an
appellate staff attorney requires any actions or obligations on the part of the justice with whom
the staff attorney is now employed.
In practical terms, an appellate justice’s obligations would require steps be taken equivalent
to disqualifying a staff attorney from working on an appellate matter in which the staff
attorney’s prior service as a “lawyer in the proceeding” (canon 3E(5)) would have been
disqualifying for the justice had the justice served in such a capacity. Meeting those obligations
may take several forms, such as not assigning or otherwise preventing substantive or active
involvement in the appellate matter.
Based on the facts provided about the staff attorney’s prior class action representations and
involvement while in private practice, canon provision (a), which would be broadly applicable
to any attorney, must be analyzed, necessarily followed by an analysis of provision (b), which is
more narrowly applicable to attorneys in private practice. An analysis of these provisions and
facts must also include discussion of the justice’s current practices, followed by the committee’s
conclusions regarding any additional measures that may be advisable under the circumstances
described and the specific inquiry.

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A. Prior service in the same or another proceeding
Canon 3E(5)(a) requires appellate justices to disqualify if they have “served as a lawyer in
the pending proceeding, or [have] served as a lawyer in any other proceeding involving any of
the same parties if that other proceeding related to the same contested issues of fact and law as
the present proceeding, or [have] given advice to any party in the present proceeding upon any
issues involved in the proceeding.” Applied to an appellate staff attorney’s prior service as a
lawyer, this would obligate a justice if the staff attorney had appeared as an attorney of record
and been actively involved in the same criminal matter now before the justice. It would further
obligate the justice if any criminal defendant in an appeal assigned to the justice had been
represented on the record by the justice’s staff attorney in another matter related to the same
facts and law in the criminal appeal. Finally, it would broadly apply if the staff attorney
previously gave advice in another matter to any criminal defendant on any issue in that
defendant’s criminal appeal.
Here, the justice has established procedures that fully comply with provision (a). The staff
attorney has not appeared as counsel of record for a criminal defendant in any criminal matter
that would be assigned as a direct appeal to the justice,5 and the justice precludes the staff
attorney from working on any appeal involving the same contested issues of fact and law
involved in a matter assigned to the justice.6
5 Although the justice does not specifically ask about ethical obligations where a staff
attorney appeared in the same matter as assigned to the justice on appeal, if that were to occur,
the justice would generally be obligated to preclude the staff attorney from doing any work on
the appeal. In this committee’s opinion, however, a staff attorney would be able to work on an
appeal in which the staff attorney had previously appeared on the record if the justice
determined that the staff attorney’s prior involvement was nonsubstantive and did not include
active participation in the appeal before the justice. (CJEO Formal Opn. 2015-007, supra, pp. 2,
14 [prior service in a perfunctory, nonsubstantive role does not require disqualification unless
the judge actively participated as an attorney in the current action before the judge].)
6 However, the committee’s opinion discussed above for prior nonsubstantive
representation in another matter would allow the staff attorney to work on appeals were the
justice to determine that the staff attorney had not been actively involved in the substance of the
other matter. (CJEO Oral Advice Opn. 2016-017, supra, p. 2, 5 [prior service at a

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Broadly stated, the justice’s current practice of not assigning the staff attorney to work on
any appeal involving the subject matter at issue in the civil class actions, which would
necessarily include representation in another related proceeding or giving advice on any issue in
the present proceeding, fulfills any of the justice’s obligations under provision (a).
B. Prior service in private practice
Canon 3E(5)(b) requires an appellate justice to disqualify if “within the last two years, … a
party in the [present appeal] either was a client of the justice when … in private practice … or
was a client of a lawyer with whom the justice was associated in … private practice ….” This
provision applies specifically to prior private practice service but sets a two-year limit not
provided for in provision (a). Further, provision (b) is not limited to related proceedings or to
the same contested issues of fact and law and instead broadly requires disqualification when any
prior client of either the justice or a private practice associate of the justice appears before the
justice. Applied to the inquiring justice’s staff attorney, that attorney would be precluded from
working on any appeal before the justice in which the staff attorney had, within the two years
prior to the justice’s assignment, represented a named class member as a client while in private
practice, or, also within the two years prior to the justice’s assignment, the staff attorney had
been associated in private practice with a lawyer who had represented a named class member as
a client.
As a practical matter, the application of this provision requires identification of prior clients
of the staff attorney, or of the staff attorney’s associates, to determine if a criminal defendant in
an appeal before the justice falls within either category of a disqualifying private practice client.
In this case again, the inquiring justice’s current practices fulfill part of the justice’s obligations
regarding named class members, who would be identifiable from the record of the class
proceedings as former clients of the staff attorney or associates.
nonsubstantive hearing in any other proceeding involving the same parties and contested issues
of fact and law as in the current action does not require disqualification].)

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The committee notes that because provision (b) contains a two-year limit, the staff attorney
would be able to work on any matters in which the attorney-client relationship with either the
staff attorney or the attorney’s associates ended as a matter of record more than two years before
the justice is assigned the former client’s criminal appeal. The committee further notes that if
the staff attorney has been out of private practice for more than two years, no further
disqualification duties would be required of the justice before assigning the staff attorney to
criminal appeals.
The justice asks, however, about unnamed class members, and the facts provided indicate
that the justice’s staff attorney also had interactions and involvement with at least two other civil
class actions challenging correctional conditions but not as attorney of record. The facts also
indicate that for all of the class actions, the named class membership changed as individuals
moved in and out of the correctional system and when class criteria changed. Thus, the
distinction between named and unnamed former clients becomes analytically significant, and
more precisely, when they became named class members is determinative.
C. Other unnamed class members
To the extent that the staff attorney had interactions with class members but was not attorney
of record, the justice’s current practices again partially fulfill disqualification obligations by
precluding the staff attorney from working on an appeal involving any named or unnamed class
member with whom the staff attorney knows the attorney has interacted. This leaves only the
question of the justice’s remaining obligations regarding unnamed class members who, within
the two-year period before assignment, may have become named class members and publicly
identifiable clients of either the staff attorney or an associate of the staff attorney, but who were
unknown to the staff attorney.7
7 Any unnamed class members who were not named within the past two years would not
give rise to disqualification obligations. (CJEO Formal Opinion 2015-007, supra, at pp. 9-10
[the legislative history of the disqualification statutes identifies the two purposes of promoting
trust by precluding judges from presiding where there is a reasonable doubt as to impartiality,
and furthering the administration of justice by requiring judges to preside where there is no

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To answer this question, identification of the clients of the staff attorney and the clients of
the staff attorney’s associates during the past two years is necessary, and those individuals will
be identifiable to the justice, the staff attorney, and to the public through court records. Thus, as
individuals moved in and out of the correctional system, and class membership changed, a
reasonable person would not be aware of any potential for impartiality towards a former class
member until that individual is named publicly as a class member and client. Given the
requirements and time limit set in canon 3E(5)(b), that identification process would need to be
done only for the immediate two years before any criminal defendant’s appeal is assigned to the
justice. However, it would also need to include identification of any class members who
became named within the past two years as clients of the staff attorney’s private practice
associates in any matter.
With this time limit, and the committee’s advice that only unnamed class members who
became named clients of the staff attorney or their law associates during that time period would
require additional disqualification steps, the inquiring justice will be able to fulfill any additional
disqualification obligations while still hearing assigned matters with suitable appellate staff
attorney participation.
V. Conclusions
Appellate justices have an obligation under the California Code of Judicial Ethics and the
Code of Ethics for the Court Employees of California to take steps equivalent to disqualifying a
staff attorney employed by the justice from working on any part of an appellate matter in which
reasonable doubt as to impartiality].) In this context, it is the committee’s opinion that it would
not be reasonable for a person aware of the facts to doubt the impartiality of a staff attorney who
did not and could not have known the identity of a class member who was unnamed during the
time of the staff attorney’s representation of the class and its named members, or during the
same class representation by the staff attorney’s associates of a class member who remained
unnamed during the past two years. That is, a person or outside observer would be unaware from
the record of unnamed class members, and therefore could not reasonably entertain doubt as to
impartiality by the staff attorney towards any parties who remained unnamed during the staff
attorney’s class representation.

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the staff attorney’s prior service as a “lawyer in the proceeding” would have been disqualifying
for the justice had the justice served in such a capacity. (Canon 3E(5).)
Under canon provision 3E(5)(a), a justice’s staff attorney would be precluded from
working on any criminal defendant’s appeal assigned to the justice, if, at any time:
1. The staff attorney represented the criminal defendant in the criminal appeal now before
the justice;
2. The staff attorney represented the criminal defendant in another matter related to the
same contested facts and law as that defendant’s criminal appeal; or
3. The staff attorney gave advice to the criminal defendant on any issue in the criminal
appeal.
Under canon provision 3E(5)(b), the justice would have the same duty to preclude the staff
attorney from working on any criminal defendant’s appeal if, within the two years prior to the
justice’s assignment of the criminal appeal:
1. The criminal defendant was a named class member and client of the staff attorney
while in private practice;
2. The criminal defendant was a named class member and client of an associate of the
staff attorney while in private practice; or
3. A private practice associate of the staff attorney appears in the matter assigned to the
justice.
In the committee’s opinion, a justice would have no duty to identify and effectively
disqualify the staff attorney for any unnamed class members who remained unnamed as clients
or class members of either the staff attorney or the attorney’s associates during the two years
prior to the justice’s assignment of a criminal appeal.

This expedited opinion is advisory only. (Cal. Rules of Court, rule 9.80(a), (e);
Cal. Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule
1(a), (b).) It is based on facts and issues, or topics of interest, presented to the California
Supreme Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal.

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Rules of Court, rule 9.80(i)(2); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate
by the committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this expedited opinion are those of the committee and do not necessarily
reflect the views of the California Supreme Court or any other entity. (Cal. Rules of
Court, rule 9.80(b); CJEO rule 1(a).)