May a mental hygiene commissioner remain in a law firm with an associate who becomes a part-time prosecuting attorney?
Apply this to your situation
This page answers the general question as of 2008. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A mental hygiene commissioner asked about remaining in a law office with an associate who had become an interim part-time prosecuting attorney. The request described infrequent prosecutor appearances before the commissioner.
The Commission nevertheless advised that the commissioner could not retain both the judicial role and the legal association. It offered two paths: one of the lawyers could leave the government position while the law association continued, or both could keep their positions while severing the law association. The PDF’s first page is dated June 17, 2008, while its second page is headed June 18, 2008.
In practice
The Commission did not create an exception based on the small reported number of prosecutor appearances. The source contains conflicting page dates.
Common questions
Q: Could the commissioner keep the firm association while the associate prosecuted?
A: No, not while remaining a mental hygiene commissioner.
Q: What choices did the Commission describe?
A: Leave one of the government positions and keep the firm, or keep both positions and end the firm association.
Q: What is the opinion date?
A: The first page says June 17, 2008; the second page says June 18, 2008. This page records the first-page date.
Background and rules framework
The opinion quotes former Canon 3E(1)(b) within the disqualification rule and applies it to the continuing legal association.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E(1)(b).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2008-10, redacted
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
June 17, 2008
Re: JIC Advisory Opinion 2008-10
Dear
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion regarding conflict with your private practice association of a part-time prosecutor and your duties as a Mental Hygiene Commissioner. You stated in the letter that you serve as a
Mental Hygiene Commission in the Judicial] Circuit ) and
you have an associate, who has been appointed interim Prosecuting Attorney for County. He has been an associate in your law office for nearly three years and he
will continue to have a private practice while serving as the prosecuting attorney. The Prosecuting Attorney position is part-time.
You indicate that you have a very limited number of mental hygiene hearings (in ten years the prosecuting attorney only appeared before you three times all at your request due to repeated petitions and limited time-frame or potential for criminal charges to be needed instead of involuntary commitment). Your biggest concern since it is the highest volume of work for you In are the guardian/conservator hearings which average 15 per year and have been running approximately 80% filed by the West Virginia DHHR with about 75% being where the DHHR and County Sheriff end up as the appointees. In the same ten years the prosecuting attorney only appeared at one hearing for the DHHR and that was to request leave not to be present. You indicate that you are aware that there would be no issue if you would resign as Mental Hygiene Commissioner or if left the firm but you would like to see if there is any way he could do his elected job and you could do your appointed job and still keep the law firm intact.
To address the question which you have raised, the Commission has reviewed Canon 3 of
the Code of Judicial Conduct. Canon 3 states in relevant part:
June 18, 2008
Page Two
Canon 3. A judge shall perform the duties of judicial office impartially 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, including but not limited to instances where:
(b) the judge served as a lawyer in the matter in the controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it; . . .
Based upon the language contained in the relevant section of Canon 3, it is the opinion of the Commission that you could not continue your association with now that he is working in the Prosecuting Attorney’s Office and remain as a Mental Hygiene Commissioner in the = Judicial Circuit. Either he or you could resign the positions and keep the legal association intact or you and he could continue in your positions as Mental Hygiene Commissioner and Prosecuting Attorney and sever the legal association.
It is hoped that this opinion fully addresses which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.
Very truly yours,
[signature]
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
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