May a part-time mental hygiene commissioner accept court-appointed criminal defense cases?

Short answer West Virginia JIC Opinion 2007-08 allows court-appointed criminal defense work under former Canon 6C, but says the commissioner may not represent someone who appeared before them as mental hygiene commissioner.
Bar
JUDICIAL-WV
Issued
May 21, 2007

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This page answers the general question as of 2007. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A part-time mental hygiene commissioner who also practiced law asked whether judicial conduct rules prevented appointed criminal defense work. The inquiry described a criminal defendant who had also appeared in an involuntary commitment matter before the commissioner.

The Commission concluded that court-appointed criminal representation was permitted under former Canon 6C. It added that the commissioner could not represent an individual who had appeared before them in the commissioner role.

In practice

The approval concerned criminal defense appointments generally. The opinion separately barred representation of a person who had appeared before the commissioner in a mental hygiene matter.

Common questions

Q: Could the commissioner accept appointed criminal cases?

A: Yes. The Commission said the commissioner could accept court-appointed criminal defense work.

Q: Could the commissioner represent someone who had appeared before them in a mental hygiene matter?

A: No. The Commission expressly excluded that representation.

Q: Which former Canon did the opinion apply?

A: Former Canon 6C(2) and the related commentary for continuing part-time judges.

Background and rules framework

Former Canon 6C(2), quoted in the opinion, allowed a continuing part-time judge to practice law in certain courts but restricted representation in related proceedings or matters involving the same subject-matter jurisdiction. The opinion also quoted commentary addressing mental hygiene commissioners.

Citations and references

West Virginia Code of Judicial Conduct (former): Canon 6; Canon 6C(2) and commentary.

See also

Source

Original opinion text

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

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

May 21, 2007

Re: JIC Advisory Opinions 2007-08

Dear Commissioner

In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. In your letter you stated that you had a situation arise in your practice regarding your position as a part-time Mental Hygiene Commissioner for County West Virginia and a criminal case to which the Circuit Judge has appointed you. You contacted the State Bar Office advising the State Bar Counsel that you had been appointed in a criminal case to a Defendant who you subsequently learned was the Respondent in an involuntary commit case where you sit as Mental Hygiene Commissioner. After resolving the issue concerning the potential conflict in representation, you were informed that as a Mental Hygiene Commissioner there was a possibility that you were prohibited from representing criminal defendants because of the potential violation of the Canons of Judicial Conduct. You were requested by State Bar Counsel to contact this office regarding the representation of criminal defendants, including indigent criminal defendants to whom you have been appointed and the potential for any problems since you are also a Mental Hygiene Commissioner.

You asked for an advisory opinion regarding this situation and you stated that in your area of the State there is no Public Defender and many of the Attorneys including the part-time Mental Hygiene Commissioners do appointed criminal work and/or also serve as guardians ad litem in abuse and neglect cases.

May 21, 2007
Page two

To address the inquiry which you have made the Commissioner has reviewed Canon 6 of the Code of Judicial Conduct. Under Canon 6 you serve as a Mental Hygiene Commissioner, which is a continuing part-time Judge. Canon 6C exempts Mental Hygiene Commissioners from having to comply with several of the Canons in the Code of Judicial Conduct. Canon 6C(2) states:

C. Continuing part-time judge. A continuing part-time judge:

(2) may practice law in the court in which the judge serves or in any court subject to the appellate jurisdiction of the court in which the judge serves, but shall not act as a lawyer in a proceeding in which the judge has served as a judge in any other proceeding related thereto, or in any matter involving the same subject-matter jurisdiction.

The commentary to Canon 6C states in relevant part. . .[n]or shall a Mental Hygiene Commissioner accept any mental hygiene matters or serve as an attorney in any proceeding related to a case in which he or she has served as a Mental Hygiene

Commissioner. . ..”

Based on the language contained in the Canon and the commentary to the Canon, it is the opinion of the Commission that you can accept court appointed cases in which you represent criminal defendants. You could not, however, represent any individual who has appeared before you in your capacity as Mental Hygiene Commissioner.

It is hoped that this fully addresses the question that you have raised. If there is any further question regarding this matter do not hesitate to contact this office.

Very truly yours,
Fred L. Fox, II, Chairperson
Judicial Investigation Commission

FLF,II:nb

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