Could a juvenile referee hear cases involving a public defender’s office while serving as its co-counsel in another case?

Plain-English summary

A juvenile referee was serving as co-counsel with a county public defender’s office in a criminal case. The office handled roughly 60 to 70 percent of matters before the referee, who asked whether those matters could still be heard.

The Commission found no conflict in serving as co-counsel itself. It found a disqualifying conflict when a member of that public defender’s office represented a client before the referee. The disqualification would continue while the co-counsel relationship in the criminal case lasted.

Currency note

This opinion was issued in 1996, 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: Was serving as co-counsel itself a conflict?

A: No. The Commission said that role alone did not create a conflict.

Q: When did disqualification apply?

A: When a member of the public defender’s office appeared before the referee while the co-counsel relationship continued.

Background and rules framework

Former Canon 2A addressed public confidence in judicial impartiality. Canon 3E(1) required disqualification when impartiality might reasonably be questioned.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 2A, appearance of impropriety and public confidence.
• Canon 3E(1), disqualification.

See also

• WV JIC Advisory Opinion 2002-09: Commissioner and partner’s prior hearings

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1996-09, 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

March 15, 1996

Re: JIC Advisory Opinion 1996-09

Dear
Your letter to Counsel to the Judicial Investigation
Commission in which you asked for an advisory opinion has been reviewed by members of the commission. In your correspondence you stated that you serve as a Juvenile Referee for the Judicial Circuit covering County. You said that the County Public Defender's Office has been appointed to serve with you as co-counsel in a County criminal case in which you serve as one of the defense lawyers. You indicated that the Public Defender's Office handles ~pproximately 60 to 70% of the cases appearing before you. You asked if you could hear any case in which the County Public Defender's Office was involved.
The language as set forth in Canon 2A and Canon JE(l) of the Code of Judicial Conduct provides guidance in addressing the inquiry which you have made. The pertinent language contained in Canon 2A states:

CANON 2

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES A. A judge shall respect and comply with the law, shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

• 2 - March 15, 1996

canon 3E(l) states in relevant part:
CANON 3
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALITY AND DILIGENTLY
E. Disqualification. - (1) A judge shall disqualify himself or herself in a proceeding in which the ... judge's impartiality might reasonably be questioned,

Based on the language set forth in Canon 2A and Canon
3E(1) of the Code of Judicial Conduct, it is the opinion of the Commission that you do not have a conflict while serving as co-counsel with the County Public Defender's Office. However, you do have a conflict which would require your disqualification from cases when you are serving as the Juvenile Referee for the Judicial Circuit and a member of the county Public Defender's Office appears before you representing a client. The conflict situation would exist as long as you served as co-counsel with the County Public Defender's Office in the County criminal case.
If you have any further question regarding this matter, do not hesitate to contact the Commission.
V t uly yours,
~-~-

•
1 ox, II, Chairman
FLF,II/bl