What matters can a lawyer who serves part-time as a county or municipal judge represent clients in, and does the conflict extend to the lawyer's firm?

Plain-English summary

Opinion 45 (revised opinion adopted June 16, 1984; addendum issued 1996) addressed the conflicts that arise when a practicing lawyer also serves part-time as a county or municipal judge, a role Colorado statutes expressly contemplate. The Committee stressed that legality of the dual role does not answer the ethical questions.

The Committee reached four conclusions. First, a part-time judge may not accept employment in a matter likely to come before the court in which the lawyer is a judge, read broadly to include matters derived from or incident to such a controversy, and (under DR 9-101(A)) may not accept private employment in a matter on whose merits the lawyer acted as judge. Second, following ABA Formal Opinion 242, it is improper for a part-time county court judge to represent a person accused of violating a municipal ordinance or state criminal statute, because the public and private duties within the same judicial system are incompatible. Third, a part-time municipal judge may represent defendants in any county or district court, or in another municipal court, only if three conditions hold: the alleged crime did not occur in the judge's municipal jurisdiction; no peace officer or employee of that jurisdiction was involved in the investigation or will be a witness; and the representation would not cast doubt on the validity of any ordinance the lawyer interprets as a judge. Fourth, a partner, associate, employee, or co-shareholder of a part-time judge is disqualified through DR 5-105(D) from matters likely to come before the judge or derived from them, but is not automatically disqualified from other criminal cases that rest only on the appearance-of-impropriety concern, though such a lawyer must stay vigilant for special circumstances. The 1996 addendum mapped the analysis to Rules 1.7, 1.9(a), 1.10, 1.12, 2.2, and 8.4(e) and (f), and to Canon 8 of the Colorado Code of Judicial Conduct, noting that the Canons contain no waiver provision while Rule 1.10(c) does, so the stricter Canon limits should be observed where they differ.

Currency note

This opinion (revised 1984, addendum 1996) was based on the Code of Professional Responsibility and predates Colorado's 2008 revisions to the Rules of Professional Conduct. The 1996 addendum maps it to Rules 1.7, 1.9(a), 1.10, 1.12, 2.2, and 8.4, and to the Colorado Code of Judicial Conduct, all since amended (Rule 2.2 on intermediaries was later eliminated and the Code of Judicial Conduct has been recodified). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a part-time judge represent clients in matters that might come before the judge's own court?

A: No, under this opinion. The Committee concluded a part-time judge may not accept employment in matters likely to come before the court where the lawyer is a judge, or in matters derived from or incident to them, or in matters the lawyer already acted on as judge.

Q: Can a part-time county court judge defend criminal cases in other courts?

A: No, under this opinion. Following ABA Formal Opinion 242, the Committee concluded it is improper for a part-time county court judge to represent persons accused of violating a municipal ordinance or state criminal statute, because the dual public and private duties are incompatible.

Q: Are the judge's law partners also disqualified?

A: It depends. The opinion concluded that where a disciplinary rule bars the judge, DR 5-105(D) imputes the disqualification to partners and associates; but where only the appearance-of-impropriety concern applies, firm members are not automatically barred from unrelated criminal cases in other jurisdictions, though they must watch for special circumstances.

Background and rules framework

The opinion applied the Code of Professional Responsibility, principally DR 5-105 (conflicts and imputation) and DR 9-101(A) and Canon 9 (avoiding the appearance of impropriety; public confidence in the judiciary), and the Colorado part-time-judge statutes. The 1996 addendum restates the analysis under Model Rules 1.7 (conflicts), 1.9 (former clients), 1.10 (imputation), 1.12 (former judge), and 8.4, read with the Colorado Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.7 / Model Rule 1.7 (conflicts of interest)
• Colo. RPC 1.9(a) / Model Rule 1.9 (duties to former clients)
• Colo. RPC 1.10 / Model Rule 1.10 (imputation of conflicts)
• Colo. RPC 1.12 / Model Rule 1.12 (former judge or arbitrator)
• Colo. RPC 8.4(e) / Model Rule 8.4 (implying ability to influence improperly)

Statutes:

• C.R.S. sections 12-5-110, 12-5-118, 13-6-204, 13-6-208, 13-10-106 (part-time county and municipal judges)

Other opinions cited:

• ABA Formal Opinion 242 (1942) (part-time judge representing criminal defendants in higher courts)
• ABA Informal Opinion 997 (1967) (part-time magistrate accepting appointments)
• CBA Formal Opinion 46 (part-time municipal attorney representing defendants)

See also

• CBA Formal Op. 46: Municipal Attorney Representing Defendants
• CBA Formal Op. 48: Representing a Public Body and a Private Client
• CBA Formal Op. 13: Judge and City Attorney Sharing Offices

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/FormalEthicsOpinion_45.pdf?ver=2016-10-04-103915-673