Could a part-time district judge represent felony defendants in circuit courts in the same circuit?

Plain-English summary

A part-time district judge whose court heard civil, small claims, and traffic matters asked whether he could represent felony defendants in county circuit courts.

The Committee said a part-time judge could not represent criminal defendants in the same circuit. It explained that limiting representation to felonies or trying to avoid actual overlap did not remove the underlying appearance concern.

The opinion relied on earlier committee opinions stating that judicial responsibility took priority over private practice and that waiver did not cure the appearance problem under the then-current Code.

In practice

The opinion’s same-circuit conclusion applied even though the judge’s own court did not hear felonies. It did not accept the proposed separation of cases as resolving the conflict.

Common questions

Q: Did the limited jurisdiction of the district court permit felony defense work in circuit court?

A: No. The Committee said the same-circuit criminal-defense restriction still applied.

Q: Could the judge rely on a waiver?

A: The opinion quoted an earlier conclusion that waiver did not cure the appearance of impropriety.

Background and rules framework

The Committee applied the Arkansas Code of Judicial Conduct as interpreted in earlier part-time judge opinions, including 98-02, 98-03 and 2002-02.

Citations and references

• JEAC Opinions 98-02, 98-03 and 2002-02 (part-time judges and criminal defense).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2005-04/

Original opinion text

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

May 23, 2005

Judge Herbert T. Wright

Attorney at Law

108 South Pulaski

Little Rock, AR 72201

RE: Opinion 2005-04

Dear Judge Wright:

You have informed us that you are a part-time District Judge in Pulaski County. You preside over the Wrightsville District Court, which hears only civil cases, small claims and traffic offenses. In light of the limited jurisdiction of your court, you ask whether you may represent criminal defendants on felony charges in the Pulaski County Circuit Courts.

We have addressed similar questions in previous opinions. Advisory Opinion 98-02 advised that a municipal judge should decline to represent a criminal defendant in any circuit court in which the same prosecuting attorney has jurisdiction. In Advisory Opinion 98-03, we re-emphasized the principle: “To prevent the appearance of impropriety, the private law practice of the judge must be subordinated to the judicial responsibility.” In Opinion 2002-02 we stated that the prohibition applies to part-time judges serving temporarily, as well as continuing part-time judges. “Nor do we believe that the appearance of impropriety may be cured by waiver.”

Your letter suggests some methods to avoid actual conflicts, such as representing only felony defendants in circuit court. But you also admit that you would have contact with the other district courts in setting a bond. However, we do not believe that such attempts can resolve the underlying issue.

As we have stated, an 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. In our opinion, a part-time judge may not represent any criminal defendants in the same circuit. We have adhered to this opinion since 1998, and the Supreme Court has not altered the Code of Judicial Conduct on this issue.

Sincerely,

Howard Brill

For the committee