Can a part-time judge also work as a criminal defense lawyer?

Plain-English summary

The opinion addressed whether it is ethically proper for a part-time judge to serve in a judicial capacity while also working as criminal defense counsel. The Board concluded that such representation is not per se inappropriate or unethical, but that it can become inappropriate depending on the judge's responsibilities and the regularity of the criminal defense work.

The Board explained that Georgia law authorizes part-time judges to practice law subject to restrictions. O.C.G.A. 15-7-21 permits part-time State Court judges to practice in other courts but bars practice in their own court or appearances in matters over which they have exercised jurisdiction, and O.C.G.A. 15-10-22(b) imposes parallel limits on attorney magistrates. The Compliance section of the Code of Judicial Conduct likewise provides that part-time judges should not practice law in the court on which they serve, in any court subject to its appellate jurisdiction, or in proceedings in which they served as judges.

Because both the statutes and the Canons authorize the practice of law by part-time judges and spell out the restrictions, the Board concluded that representing a criminal defendant cannot be said to be per se inappropriate. At the same time, citing Canon 2's admonition to avoid impropriety and its appearance, the Board cautioned that the regular or exclusive representation of criminal defendants by a judge whose responsibilities include issuing criminal warrants or trying criminal cases might destroy the appearance of impartiality and integrity essential to the administration of justice, and therefore be inappropriate. The Board noted Ga. Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (1982), and Hudson v. State, 250 Ga. 479 (1983), in which the Court declined to require automatic disqualification of every part-time judge serving as criminal defense counsel.

Currency note

This opinion was issued in 1989 and is based on the Georgia Code of Judicial Conduct and Georgia statutes rather than the Standards of Conduct or the Rules of Professional Conduct; the State Bar's own note states the adoption of the Georgia Rules of Professional Conduct does not require a change in the opinion, but that the Code of Judicial Conduct and Georgia law may have been revised since it issued. Treat this page as historical context, not current guidance. Verify the current Code of Judicial Conduct and the cited statutes before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a part-time judge in Georgia also defend criminal cases?

A: The opinion concluded that part-time judges are not prohibited from representing criminal defendants in other courts, because Georgia statutes and the Code of Judicial Conduct authorize part-time judges to practice law subject to restrictions.

Q: Where can't a part-time judge practice?

A: The opinion explained that, under O.C.G.A. 15-7-21 and the Code of Judicial Conduct, a part-time judge may not practice in the judge's own court, in any court subject to its appellate jurisdiction, or in matters over which the judge has exercised jurisdiction.

Q: When does part-time-judge criminal defense work become inappropriate?

A: The opinion cautioned that, under Canon 2, the regular or exclusive representation of criminal defendants by a judge whose responsibilities include issuing criminal warrants or trying criminal cases might destroy the appearance of impartiality and integrity and therefore be inappropriate.

Background and rules framework

The opinion was grounded in the Georgia Code of Judicial Conduct, particularly the Compliance section for part-time judges and Canon 2 (avoiding impropriety and its appearance), and in Georgia statutes O.C.G.A. 15-7-21 and 15-10-22(b). It cited Ga. Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (1982), and Hudson v. State, 250 Ga. 479 (1983).

Citations and references

Judicial conduct authority:

• Georgia Code of Judicial Conduct, Compliance section (part-time judges) and Canon 2

Statutes:

• O.C.G.A. 15-7-21 (part-time State Court judges and the private practice of law)
• O.C.G.A. 15-10-22(b) (attorney magistrates practicing in other courts)

Cases:

• Ga. Dept. of Human Resources v. Sistrunk, 249 Ga. 543 (1982)
• Hudson v. State, 250 Ga. 479 (1983), declining automatic disqualification of part-time judges serving as defense counsel

See also

• GA Ethics Op. 05-3: Law Clerk Before Employer-Judge
• GA Ethics Op. 05-12: Council Member as Defense Lawyer

Source

• Landing page: https://www.gabar.org/handbook?rule=rule502

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

State Bar of Georgia
Issued by the Supreme Court of Georgia
On August 23, 1989
Formal Advisory Opinion No. 86-2

The adoption of the Georgia Rules of Professional Conduct does not require a change in this opinion, which is based on the Code of Judicial Conduct and Georgia law. However, the Code of Judicial Conduct and Georgia law may have been revised since this opinion was issued.

For an explanation regarding the addition of headnotes to the opinion, click here .

QUESTION PRESENTED:

Ethical propriety of a part-time judge also serving as a criminal defense counsel.

OPINION:

The Supreme Court of Georgia approves, as amended, Proposed Formal Advisory Opinion No. 86-2 requesting an Advisory Opinion as to the ethical propriety of a part-time judge serving in a judicial capacity while also serving as a criminal defense counsel.

Georgia law authorizes part-time Judges to practice law, subject to certain restrictions. OCGA § 15-7-21 provides that part-time State Court Judges may engage in the private practice of law in other courts, but prohibits practice in the Judge's own court or appearances in any matter as to which the Judge has exercised any jurisdiction. OCGA § 15-10-22 (b) provides that Magistrates who are attorneys may practice in other courts, but not in their own courts, nor may they appear in any matter as to which their court has exercised any jurisdiction.

In addition, the Compliance section of the Code of Judicial Conduct states:

A. Part-time Judges. A part-time judge is a judge who serves on a continuing or periodic basis, but who is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.

Part-time judges:
. . . . .
(2) should not practice law in the court on which they serve or in any court subject to the appellate jurisdiction of the courts on which they serve, or act as lawyers in proceedings in which they have served as judges or in any other proceeding related thereto.

From this, it is clear that both the statutes and the Canons authorize the practice of law by part-time Judges and spell out the restrictions on such practice. For that reason, representation of a defendant in a criminal case by a part-time judge cannot be said to be per se inappropriate or unethical.

At the same time, Canon 2 admonishes that:

Judges should avoid impropriety and the appearance of impropriety in all their activities.

For that reason, although such representation is not in and of itself inappropriate, the regular or exclusive representation of such defendants by a Judge whose responsibilities include the issuance of criminal warrants or the trial of criminal cases might destroy the appearance of impartiality and integrity essential to the administration of justice and, therefore, be inappropriate.

In reaching this conclusion, we have been aware of the holding in Ga. Dept. of Human Resources v. Sistrunk, et al. , 249 Ga. 543 (291 SE2d 524) (1982); however, in Hudson v. State , 250 Ga. 479 (299 SE2d 531) (1983), this Court declined to adopt a rule which would require disqualification of any part-time Judge serving as an attorney in a criminal defense action. As Judge Gregory stated at Page 482 of the Hudson opinion:

Further, we decline to adopt the broad rule proposed by defendant which would require automatic disqualification of every attorney in a criminal defense action where the attorney is simultaneously employed as either a state court solicitor or probate judge.

We therefore concluded that part-time Judges are not prohibited from representing defendants in criminal cases, subject to the reservations spelled out in the statutes and the Canons as above set forth.