May a temporary city judge hear cases brought by a prosecutor while defending clients against that prosecutor elsewhere?

Plain-English summary

A lawyer asked whether he could temporarily serve as a city judge in criminal cases brought by a prosecutor while defending other clients against that prosecutor in the same county. He also asked whether the prosecutor could waive any conflict.

The Committee found no relevant difference between temporary and continuing part-time judicial service for this issue. Applying its earlier Opinion 98-02, it said the overlapping adversarial and adjudicative roles created an appearance of impropriety. It concluded that the judge should decline criminal defense representation in any circuit within that prosecutor’s jurisdiction and that waiver would not cure the appearance concern.

Common questions

Q: Does serving temporarily change the conflict analysis?

A: The Committee found no Code or case-law basis to distinguish a temporary part-time judge from a continuing part-time judge for this issue.

Q: Could the prosecuting attorney waive the problem?

A: No. The Committee said waiver did not cure the appearance of impropriety.

Background and rules framework

The Committee discussed then-current Canon 4G’s restriction on a judge’s law practice, the Application section’s exception for continuing part-time judges, and Canon 2’s appearance principle. It relied on Arkansas JEAC Opinion 98-02 for the conflict analysis.

Citations and references

• Arkansas Code of Judicial Conduct Canons 4G and 2; Application Section B.
• Arkansas JEAC Advisory Opinion 98-02.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-02-04/

Original opinion text

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

March 14, 2002

Doug Norwood

Attorney at Law

P. O. Box 2044

Rogers, AR 72757-2044

RE: Advisory Opinion 2002-04

Dear Mr. Norwood:

In your letter of March 5, 2002, you tell us that Mr. Rodney Owens has asked you to serve in his stead as City Judge of Centerton, Arkansas, while criminal charges are pending against him. You ask this Committee whether you may, in light of our Advisory Opinion No. 98-02, simultaneously sit as City Judge and preside over criminal cases brought by the Office of the Prosecuting Attorney while you are also representing defendants in other courts in the same county. You also ask whether the Prosecuting Attorney may waive any conflict.

While we recognize the exigency of the circumstances outlined in your letter, we find nothing in the Code of Judicial Conduct or relevant case law distinguishing continuing part-time judges from part-time judges serving temporarily, albeit indefinitely. Nor do we believe the appearance of impropriety may be cured by waiver.

Advisory Opinion No. 98-02 notes that the concurrent practice of law and judicial service are prohibited under Canon 4G, but that exception is made for continuing part-time judges under Section B of the Application section of the Code. We pointed out that while the Code stops short of an outright ban on the practice of law by part-time judges, clearly restraint and caution are called for. In that context, we cited Canon 2 and concluded:

[A]n individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, we believe, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that same prosecuting attorney is in an untenable position, however principled that individual may be. Acting as both judge and jury, the municipal judge has significant discretion in dealing with the prosecuting attorney. To oppose that same attorney in another matter creates an appearance of impropriety.

We conclude, as have a majority of other jurisdictions, that license must yield to ethic, where, in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilities with integrity, competence and impartiality could be impaired. It follows that the initial responsibility rests on the municipal judge to decline the personal representation of a criminal defendant in any circuit within which the prosecuting attorney has jurisdiction.

Yours very truly,

Steele Hays

For the Committee