May a part-time district judge’s law partner serve as a deputy prosecutor in the same county?

Plain-English summary

A part-time district judge asked whether one of his law partners could serve as a part-time deputy prosecutor in the same county. The described arrangements would keep the partner from appearing for the county before the judge or handling appeals from his court.

The Committee found no obvious conflict on those facts. It said the judge should remain alert to actual conflicts and recuse when necessary; disclosure might be advisable in some instances. The judge should not share financially in the partner’s prosecutor salary.

The opinion observes that the Code does not specifically address law partners’ practices. It applies the Code’s general principles on recusal, frequent disqualification, and appearance of impropriety.

In practice

The no-obvious-conflict conclusion rests on the partner’s separate assignments and the part-time nature of both positions. The opinion leaves actual conflicts to be handled through recusal and, where appropriate, disclosure.

Common questions

Q: Did the Committee find a categorical conflict?

A: No. Given the stated arrangements, it found no obvious conflict.

Q: May the judge share in the partner’s prosecutor salary?

A: The Committee said the judge should not share financially in that salary.

Q: What if an actual conflict arises?

A: The opinion says the judge should be prepared to recuse if necessary; disclosure to parties might be advisable in some instances.

Background and rules framework

The Committee cited the Arkansas Code of Judicial Conduct’s provisions on recusal (Rule 2.11), activities that might cause frequent disqualification (Rule 3.11), and appearance of impropriety (Rule 1.2). It also cited the Code’s application provisions for continuing part-time judges.

Citations and references

• Arkansas Code of Judicial Conduct Rules 1.2, 2.11, 3.11 and Canon 1.
• JEAC Opinions 98-02, 98-03, 2002-04, 2005-04, 2008-08, 97-04, 99-02, 2005-03, 2008-01, 2004-07 and 2008-04 (earlier part-time-judge questions).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2014-01/
• Original PDF: https://media.ark.org/jddc/Crow-2-6-14.pdf

Original opinion text

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

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Judge Bart F. Virden
P.O. Box 127
Morrilton, Ark. 72110

Dear Judge Virden:
Advisory Opinion 2014-01

You have inquired as to a possible disabling conflict with a law partner. You have been elected to serve as the part-time district judge for Conway County. As a continuing part-time judge under the Arkansas Code of Judicial Conduct of 2009, you are permitted to have a part-time practice. You practice with the firm of Gordon, Caruth & Virden. You have asked whether one of your law partners may serve a part-time deputy prosecutor for Conway County.

Discussion: Arkansas law permits a continuing part-time judge to engage in the private practice of law, and to do so with other attorneys. The Code offers general guidance for that situation. See Application, III (Continuing Part-Time Judge), Comments [2] and [3A].

This committee has previously 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." See JEAC Opinion 98-02. But our prior opinions asked whether a part-time judge could represent criminal defendants (Opinions 98-02; 98-03; 2002-04; 2005-04); could serve as a prosecutor (Opinion 2008-08); and was subject to other limitations on his private practice (Opinions 97-04; 99-02; 2005-03; 2008-01; 2004-07; 2008-04). We have not addressed activities of law partners of part-time judges.

The Code is silent as to the practice of your law partners. Accordingly, general principles of the Code must apply. For example, as a part-time continuing judge you are to recuse from certain matters. Rule 2.11. You are to avoid activities that might call for frequent disqualification. Rule 3.11. You must refrain from the appearance of impropriety. Rule 1.2.

You indicate that the Prosecuting Attorney will arrange the workload of his office so that your

law partner does not appear before you representing the County; nor will your law partner handle any appeals from your court. Further limitations may be appropriate in other scenarios.

Tower Building ¢« 323 Center Street « Suite 1060 ° Little Rock, AR 72201 © (S01) 682-1050 Conclusion: Given the general arrangements that will be made, and given the part-time positions that are involved, we do not believe that an obvious conflict exists between your role as a district judge and your law partner's role as a deputy prosecutor. However, you should be alert to actual conflicts and should be prepared to recuse if necessary. In some instances disclosure to parties might be advisable. You should not share financially in the prosecutor's salary received by your law partner. You must take all necessary precautions to avoid abuse of the judicial office, and take all steps to uphold and promote the independence, integrity and impartiality of the office. Canon 1.

For the Committee,

Howard W. Brill