Personal and Substantial Participation

Rule 1.12(a) does not bar a former neutral from every matter that passed through the court or tribunal during the lawyer's service. It bars representation only in a matter in which the lawyer "participated personally and substantially" in a covered role, and that phrase separates the matters the lawyer must avoid from the many the lawyer merely stood near.¹ The previous section asked what role the lawyer held; this one asks what the lawyer did while holding it. A covered title opens the inquiry, and the lawyer's own involvement in the matter decides it.

The phrase sets two requirements, and each screens out a different kind of contact. "Personally" asks who acted: the lawyer must have taken part individually, which excludes the lawyer whose only link to the matter is membership in the institution that handled it. "Substantially" asks how much the lawyer did: the involvement must carry real weight, which excludes a routine act such as passing along a paper that called for no judgment. The word "and" joins the two, so a lawyer escapes the bar by failing either test and falls within it only by passing both.

Both tests follow from the concerns this chapter opened with: that a neutral's rulings may have been shaped by hope of later work, and that what a neutral learned in confidence may travel into private practice. Each concern needs a particular kind of contact to exist. Only someone who made or helped make choices in a matter could have favored a party, and only someone who actually heard or read the parties' positions could carry them out the door. A judge on a large court or a clerk in a busy chambers belongs to an institution through which many matters pass, and membership alone creates neither opportunity. Without the two qualifiers, the rule would close the entire docket of the body served to every lawyer who once served it. The qualifiers confine the bar to the matters where the concerns are real.

Participation Must Be Personal

Personal participation asks whether this lawyer acted in the matter, and the answer does not turn on whether the court or chambers the lawyer belonged to had the matter while the lawyer served there.² The parallel rule for former government lawyers draws the same line. Its disqualification attaches when the lawyer participated directly in the matter, and it spares the lawyer who merely served in the same office as the colleagues who handled it.³ That reasoning protects a judge on a multi-member court as well: a matter that another judge handled does not become the former judge's matter because the court decided it during the judge's tenure.⁴

A stem that says only that the lawyer sat on the court where the case was pending leaves the controlling question open. The question is what this lawyer did in it.

A judge who votes on the merits as a member of a deciding panel stands on the other side of that line. He has acted in the matter himself, and sharing the decision with two colleagues, or leaving the opinion to one of them, does not make his act less his own. Personal participation requires only that the lawyer took a hand in the matter; it does not require sole authority over the result.

A former law clerk faces the same question, but a multi-judge court makes the underlying fact harder to establish. One court has pointed out that a judge will know whether he or she assigned work to a clerk in a particular case but may not know whether a clerk took part in the decision-making in some less formal way, for example by joining a discussion among clerks about a case assigned to another judge.⁵ A clerk can therefore act in a matter without ever being assigned to it. The same court presumed that former clerks would be candid when they move to participate in cases pending during their clerkships. It recognized, though, the difficulty that arises when the opposing party doubts a clerk's denial of personal and substantial participation: the party has little or no way of verifying or disputing the denial, because the court's internal decision-making process is confidential.⁶ The clerk's own account is therefore often the only evidence on the point.

Hypothetical Illustration

A clerk in one judge's chambers on a six-judge appellate court joins a lunchtime conversation among the court's clerks. A clerk from another chambers describes a pending appeal, Harlan v. Reyes, that is assigned to that chambers, and asks what outcome the group thinks is right. The first clerk offers a view on the result. After the clerkship, the first clerk is asked to represent Harlan in that appeal. No judge ever assigned the appeal to this clerk, so the court's assignment records show nothing, yet the clerk took part in discussing how the appeal should come out. That is acting in the matter, so the personal requirement is met, and what remains is whether the contribution was substantial. A clerk who knew of the appeal only from the court's published calendar, and never discussed it with anyone, would fail the personal requirement at the first step.

Participation Must Be Substantial

Because Rule 1.12(a) joins its requirements with "and," a lawyer who acted individually still escapes the bar when the involvement was slight.⁸ Personal participation asks whether this lawyer acted in the matter at all; substantial participation asks how much the contribution weighed. The parallel rule for government lawyers supplies the measure. The participation must be something beyond routinely forwarding a document or taking a purely ministerial action that involved no exercise of discretion, and it includes court appearances, interviews of clients or witnesses, preparation of litigation documents, and discussions of strategy.⁹ For a neutral, the working question is whether the act touched the merits or called for judgment, or whether it was routine.

The line follows from the same two concerns. Suspicion of favoritism requires that the lawyer had a choice to make, because only someone who could have decided a point either way could have favored a party in expectation of a reward. The confidences concern requires that the lawyer was exposed to the merits, because a neutral who learned nothing of the parties' positions has nothing to carry out. Signing an agreed order that extends a deadline involves no discretion over the merits and conveys no confidences, so neither concern is present. A ruling on a contested motion presents the opposite picture: it exercises real power over the parties and requires the neutral to learn how the dispute stands.

Students most often misread "substantial" to mean that the lawyer decided the case. Nothing in the standard requires it, and the parallel rule's examples of substantial participation (court appearances, interviews, drafting, strategy sessions) are not decisions about the outcome at all.¹⁰ Applied to a judge, the standard reaches work that falls well short of final disposition. A judge who presides over a criminal defendant's initial appearance, explains the defendant's rights, and makes a probable cause determination has done more than take a ministerial step, because the determination is a judgment about the evidence behind the charge. That judge may not later represent anyone in the matter without the informed consent of all parties, confirmed in writing, even though a different judge took the plea and imposed sentence.¹¹ Substantiality measures the lawyer's own contribution, and the lawyer's place in the final outcome does not enter into it.

Hypothetical Illustration

X v. Y is pending in a county court whose ten trial judges hear matters on rotation. On a day when Judge Ortiz is the judge on call, he signs an agreed order extending Y's time to answer interrogatories; the lawyers had already settled the extension, and the order records it. Weeks later Judge Lindqvist, from the same rotation, hears argument on a contested motion for discovery sanctions and rules on it, although a third judge tries the case. After both leave the bench, X asks each to join its trial team. Each judge acted personally. Ortiz's signature involved no discretion over the merits and told him nothing confidential, so his participation was not substantial and paragraph (a) does not bar him. Lindqvist exercised judgment over the parties on a contested question and learned how the dispute stood, so her participation was substantial; she may not represent anyone in the matter unless all parties give informed consent, confirmed in writing.

The two judges served on the same court in the same case, and each acted personally, so the difference lies in what each act did. An agreed order records a decision the parties had already made, and the judge's signature would read the same whoever the parties were and however the merits stood. A sanctions ruling resolves a dispute the parties could not resolve, and the judge supplies the decision, which requires learning enough about the quarrel to choose a side. The inquiry therefore asks whether the lawyer exercised discretion over the merits or took in information about them. A lawyer who did neither has not participated substantially.

Decisions about law clerks apply the same inquiry to someone who assists the decision-maker. In a New Jersey decision about a former clerk named Miller, the trial judge essentially corroborated her account of her duties, which included keeping track of the many motions submitted to the court each week, and found that a former clerk like her would have had no special or intimate knowledge of the post-judgment matter then before the court.¹² The reviewing court observed that, apart from the reported decision below, Marxe appeared to be the one published New Jersey decision directly addressing the rule's language. It concluded that fairness required judging the clerk's conduct principally on the rule's text as Marxe construed it, since Marxe was the only case the clerk could have consulted.¹³

Marxe supplies the considerations that framed the inquiry. Its court noted that the legal papers submitted to the judge were public documents, which suggested that the clerk was not privy to confidential information about the case. It observed that it would be unreasonable to suggest that a clerk substantially participates in any one matter when the judge handles a significant volume of litigation each day. And it added that "[i]t must be unquestioned that at no time does anyone other than the judge ever decide any issue."¹⁴ The first two points track the rule's concerns directly: whether the clerk could have learned anything a party would want kept from the other side, and how likely it is that any single matter received the clerk's individual attention.

These considerations ask what a clerk did and learned in the particular matter, and they give no safe harbor to clerks as a class. A clerk who drafted the bench memorandum on a dispositive motion and discussed it with the judge in chambers answers each of them the other way. The remark in Marxe that only the judge decides cannot carry the analysis alone either, because the rule names law clerks as covered persons, and a reading that treated the judge's sole power to decide as conclusive would leave that coverage empty.¹⁵ What the New Jersey cases model is a method: ask what the clerk's duties were and what the clerk could have known, and let the title settle nothing.

A Mississippi appellate decision sits at the other end of the range. A lawyer who had participated as a chancellor in litigation between two parents over the custody of their minor child later undertook to represent one of them in the continuing custody dispute. The court found that her participation in the litigation between the parties, as a chancellor, was substantial, held that she was properly disqualified under Rule 1.12, and affirmed the chancellor's decision disqualifying her.¹⁶ The contrast with the clerk lies in the kind of contribution. The clerk's contact, on the Marxe reasoning, was routine handling of public papers across a crowded docket; the chancellor's was participation as judge in the very dispute she was now asked to carry on for one side.