May a mental hygiene commissioner simultaneously serve as a part-time assistant prosecutor?
Apply this to your situation
This page answers the general question as of 2009. 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 lawyer who had long served as a part-time assistant prosecutor was appointed a mental hygiene commissioner and asked whether both posts could continue. The Commission applied West Virginia Constitution art. VIII, § 7’s restriction on judicial officers holding another office. It concluded that simultaneous service as assistant prosecutor and mental hygiene commissioner was incompatible with that provision.
In practice
The conclusion concerns holding the two government roles at the same time.
Common questions
Q: May the lawyer hold both posts?
A: No. The Commission found them constitutionally incompatible.
Q: Which source did the Commission apply?
A: West Virginia Constitution art. VIII, § 7.
Background and rules framework
The opinion applies the state constitution’s restriction on a judicial officer holding another office to a mental hygiene commissioner. It cites no numbered Code Canon.
Citations and references
Constitution cited: W. Va. Const. art. VIII, § 7.
Other opinion discussed: JIC Advisory Opinion 8/27/2007, earlier advice on these roles.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-18, 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
December 14, 2009
Re: JIC Advisory Opinion 2009-18
Dear Mr.
You recently wrote a letter to the Judicial Investigation Commission asking for an advisory opinion. In that correspondence you state that for the past eleven years you have been a part-time assistant prosecutor in County West Virginia. You were recently appointed to be one of four Mental Hygiene Commissioners in County West Virginia. You also sent a copy of an advisory opinion letter dated August 27, 2007 provided by a fellow Mental Hygiene Commissioner. The last paragraph of that advisory opinion letter states that an individual would need to resign the position of Mental Hygiene Commissioner if he/she were to accept an assistant prosecuting attorney position. You asked whether your service as an assistant prosecuting attorney in County and a Mental Hygiene Commissioner in | County would be permitted and you asked for clarification of the previous advisory opinion. The Commission reviewed your correspondence at its recent meeting.
The Constitution of West Virginia Article VIII, §7 states in relevant part that “No justice, judge or magistrate shall hold any other office, or accept any appointment of public trust, under this or any other government; nor shall he become a candidate for any elective office, public office or nomination thereto except a judicial office; and the violation of any of these provisions shall vacate his judicial office.” In the past in other advisory opinions the Commission has cited this provision of the State Constitution to include any judicial officer in the state. As a Mental Hygiene Commission you would be unable to hold any other office except a judicial office. It is the opinion of the Commission that serving as an assistant prosecuting attorney and mental hygiene commissioner simultaneously would be incompatible with this provision of the State Constitution.
December 14, 2009
Page Two
It is hoped that this opinion fully addresses the questions which you have raised. If you have any further question regarding this matter please do not hesitate to contact the Commission.
Very truly yours,
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Fred L. Fox, II, Chairperson
Judicial Investigation Commission
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