Could a lawyer serving as magistrate remain in the trial lawyers association and act as mediator or arbitrator?

Plain-English summary

A newly appointed magistrate who also practiced law asked about remaining a member of the West Virginia Trial Lawyers Association and continuing to mediate or arbitrate.

The Commission applied former Canon 4C(3) to reject continued association membership. It then relied on West Virginia Constitution article VIII, section 7 and Judicial Inquiry Commission v. Allamong to permit the practicing-attorney magistrate’s mediator and arbitrator work, despite the general Canon 4F restriction.

Currency note

This opinion was issued in 1995, before West Virginia adopted its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Could the magistrate stay in the trial lawyers association?

A: No. The Commission said membership should not continue.

Q: Could the magistrate mediate or arbitrate?

A: Yes. The Commission relied on the state constitutional provision for attorney-magistrates and the cited state decision.

Background and rules framework

Former Canon 4C(3) limited organization membership. The letter considered Canons 4F and 4G against article VIII, section 7 of the state constitution and the Supreme Court’s interpretation in Allamong.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 4C(3)(a), organization service and litigation.
• Canons 4F and 4G, arbitration and legal practice.

West Virginia Constitution:

• Article VIII, § 7, attorney-magistrates.

Case cited by the opinion:

• Judicial Inquiry Commission v. Allamong, 162 W. Va. 652, 252 S.E.2d 159 (1979).

See also

• WV JIC Advisory Opinion 1995-30: Juvenile referee’s defense practice

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1995-16, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
212 Dickinson Street
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 FAX (304) 558-0831

June 14, 1995

Re: JIC Advisory Opinion 1995-16

Dear
In letters to the Judicial Investigation Commission dated April 20, 1995, you stated that you were recently appointed as a Magistrate in County. You also indicated that you are a practicing attorney. You asked whether you could continue your membership in the West Virginia Trial Lawyers Association. You also stated in your corresponden ce that as part of your law practice you have served as a mediator and would like to continue to serve as a mediator or arbitrator when called upon to do so. You asked whether you could continue these practices.

The language contained in Canon 4C(3) of the Code of Judicial Conduct governs the resolution of your inquiry regarding membership in the West Virginia Trial Lawyers Association. That section of the canon states in pertinent part:

CANON 4
A JUDGE SHALL SO CONDUCT THE JUDGE'S EXTRA-JUDICIA L ACTIVITIES AS TO MINIMIZE THE RISK OF
CONFLICT WITH JUDICIAL OBLIGATIONS c. Governmental , civic, or Charitable Activities.
(3) civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial

• 2 - June 14, 1995
  duties. A judge may serve as an officer, director, trustee, or non-legal adviser of an educational, religious, charitable, fraternal, or civil organization not conducted for the economic or political advantage of its members subject to the following limitations:
  (a) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.
  Based on the language contained in this section of the Canon, the commission feels that you should not continue your membership in the West Virginia Trial Lawyers Association.
  You also asked whether you could continue to serve as an arbitrator or mediator since you have performed in those capacities as a practicing attorney. The provisions of Article VIII, Section 7, of the Constitution of West Virginia permit attorneys who are magistrates to practice law except to the extent prohibited by the Legislature and precludes a prohibition of such magistrates from practicing law as has been stated in canon 4G of the Judicial Code of Ethics. See Judicial Inquiry commission v. Allamong. 162 w.va. 652, 252
  S.E.2d 159 (1979).
  ·
  Based on this opinion of the Supreme court of Appeals setting forth the perimeters of the constitutional language permitting a magistrate to practice law in this state, the Commission feels that you could continue to perform functions as an arbitrator and mediator when called upon to do so. While these practices are prohibited by Canon 4F of the Code of Judicial Conduct for judges the constitutional language and the subsequent opinion of our Supreme Court interpreting that language would overrule any such prohibition for magistrates who are practicing attorneys.
  It is ho~ed that this o~inion fully addresses the questions which you have raised. If there is any additional information needed from t e Commission, do not hesitate to contact it. tru y yours,

tll -
, II, Chairman