May a lawyer who occasionally sits as a municipal judge still represent clients in that court?

Plain-English summary

A practicing lawyer occasionally sat as a municipal judge when the full-time judge was unavailable or disqualified, sometimes for one case and sometimes for part of a day. He expected to serve only several times a year and represented clients in the same court on other days.

The Commission treated his sporadic appointment as service pro tempore rather than continuing part-time judicial service. The Canons therefore did not impose a blanket ban on representing clients in that court. They did bar the lawyer from representing a party in any proceeding in which he had sat as judge or in a related proceeding, and other applicable Canons could prevent accepting particular judicial appointments.

Currency note

This opinion was issued in 2001, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Does pro tempore service bar all practice in the municipal court?

A: No. The Commission found no blanket prohibition for the sporadic service presented.

Q: Could the lawyer act as counsel in a case he previously heard as judge?

A: No. The Compliance provision barred counsel work in that proceeding and in related proceedings.

Background and rules framework

The Commission distinguished the continuing service of a part-time judge from temporary appointment as judge pro tempore under the Alabama Canons' Compliance provision. It discussed Canon 5C(1) and (3) and earlier substitute-judge opinions.

Citations and references

The opinion cites Alabama Canons 5C(1) and 5C(3), Compliance with the Canons of Judicial Ethics § B, and Advisory Opinions 90-408, 95-568, 95-572, and 95-573.

See also

• AL Judicial Ethics Op. 90-408: Substitute Judge Practicing in Own Court

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 01-784

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

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

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: JULY 13, 2001 ADVISORY OPINION 01-784
APPEARING AS COUNSEL IN A COURT
IN WHICH SERVES AS A PART-TIME OR
PRO TEMPORE JUDGE
ISSUES
Maya practicing attorneywho,alongwith two
others, serves as municipal judge on
appointment by the mayor when the full-time
municipal judge is absent or disqualified
continue to represent clients in the municipal
court? Answer: Since the attorney serves as
a judge pro tempore, he may continue to
represent clients in the municipal court.
FACTS
A practicing attorney has been serving from
time to time as a judge in a municipal court
on appointment of the mayor when the full-
time municipal judge recuses herself or is
absent. Two other practicing attorneys are
also called upon by the mayor to fill in from
time to time when the full-time judge is absent
or disqualified. Sometimes they serve only to
preside over a single case. On other
occasions, they preside for half a day or a full
day. The inquiring judge expects to act as a
municipal judge several times a year. He
sometimes represents clients in the municipal
court, on days other than when he is sitting as
the judge. He asks whether he must
discontinue representing clients in the
municipal court if he continues to serve as a
judge in that court.
DISCUSSION
In AdvisoryOpinion 90-408, the Commission
concluded that a part-time substitute
municipal judge was prohibited by the
Alabama Canons of Judicial Ethics from
representing clients in the court over which he
occasionally presided subject to call from the
mayor. As the Commission has since
observed,thisopinionwasbaseduponCanons
5C(1) and (3) in that, by agreeing to be
available to serve as a judge whenever called,
the substitute judgehad agreed to complywith
the canon provision requiring a judge to
“minimize the number of cases in which his
disqualification is required,” but that, by
practicing before the municipal court, the
judge caused his own disqualification in all
matters handled by him and all matters
relating thereto. The Commission decided
that the “on-call” substitute judge was a “part-
time”judgeand,thus,subjectto Canon5C(3).
Advisory Opinions 95-568, 95-572, and 95-
573.
The canons make a distinction between “part-
time” judges and judges “pro tempore.” A
“part-timejudge”servesonacontinuingbasis.
A “judge pro tempore” is a person who is
appointed to act temporarilyas a judge. While
acting as a judge, a judge pro tempore is not
required to comply with Canon 5C(3).
A judge pro tempore must comply with
Canons 1, 2, 3, 4, 5A, 5B, 5C(1), 5C(2), 5C(4)

• (6), 6A, 6B, and 7. Compliance with the
  Canons of Judicial Ethics, §B. The
  Complianceprovision also states that a person
  who has been a judge pro tempore should not
  act as a lawyer in a proceeding in which he
  has served as a judge or in any other
  proceeding related thereto. Compliance with
  the applicable canons may require an attorney
  to not accept an appointment to preside as a
  judge pro tempore over certain cases, but the
  canons do not create a blanket prohibition on
  such a judge practicing law in the municipal
  court.
  ADVISORY OPINION 01-784
  PAGE 2
  The service as a judge in the situation
  presented appears to be so sporadic as to
  constitute service as a judge pro tempore.
  Accordingly, it is the opinion of the
  Commission that the inquiring judge may
  continue to represent clients in the municipal
  court.
  REFERENCES
  Alabama Advisory Opinions 90-408, 95-568,
  95-572, and 95-573.
  Alabama Canons of Judicial Ethics, Canons
  5C(1) and 5C(3), and Compliance with the
  Canons of Judicial Ethics, § B.
  This opinion is advisory only and is based on
  the specific facts and questions submitted by
  the judge who requested the opinion pursuant
  to Rule 17 of the Rules of Procedure of the
  Judicial Inquiry Commission. For further
  information, you may contact the Judicial
  Inquiry Commission, 800 South McDonough
  Street, Suite 201, Montgomery, Alabama
  36104; tel.: (334) 242-4089; fax: (334) 240-
  3327; E-mail: [email protected].