May a part-time mental hygiene commissioner also serve as an appointed part-time municipal judge?
Apply this to your situation
This page answers the general question as of 2012. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
An attorney serving as a mental hygiene commissioner and appointed municipal judge asked whether those posts could be held at the same time and whether the attorney could represent misdemeanor truancy clients in magistrate or circuit court.
Under former Canon 6C, the Commission permitted the concurrent part-time appointments, subject to identifying and addressing case conflicts. It expressly overruled inconsistent JIC Advisory Opinion 07/03/2007. It declined to address the separate truancy representation question because municipal and police judges were outside the Code’s scope.
In practice
The approval is for the two concurrent part-time appointments and still requires attention to case conflicts; the opinion supplies no answer on truancy representation.
Common questions
Q: Can the two part-time roles be held together?
A: Yes, while addressing case conflicts.
Q: What happened to the July 2007 opinion?
A: The Commission overruled it to the extent inconsistent with this opinion.
Q: Did the Commission approve truancy representation?
A: No. It declined to address that question.
Background and rules framework
Former Canon 6C governed continuing part-time judges and restrictions on related legal representation. The Commission also cites West Virginia Code § 27-5-1 et seq. for appointment of mental hygiene commissioners.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 6C.
Statute: W. Va. Code § 27-5-1 et seq.
Other opinions cited: JIC Advisory Opinions 2012-15, 07/03/2007 (overruled to the extent inconsistent), and 2/26/1986.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2012-18, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 « FAX (304) 558-0831
May 3, 2012
Re: JIC Advisory Opinion 2012-18.
Dear Judge
Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You are a Mental Hygiene Commissioner for ; _ Counties. You are also the appointed Municipal Judge for the City of , West Virginia. You want to know if you can concurrently serve as a Mental Hygiene Commissioner and a part-time appointed Municipal Judge. Secondly, you want to know if you can represent clients in misdemeanor truancy cases in magistrate or circuit court while at the same time serving as a municipal judge.
W. Va. Code § 27-5-1, et seq., gives the Chief Judge in each judicial circuit of this State the authority to appoint a competent attorney to serve as a Mental Hygiene Commissioner to preside over involuntary hospitalization hearings. By administrative order, the Circuit Court can also delegate evidence taking in guardianship/conservatorship cases to the Mental Hygiene Commissioner.
The Code of Judicial Conduct recognizes that a Mental Hygiene Commissioner is a continuing part-time judge. Canon 6C of the Code of Judicial Conduct states:
A continuing part-time judge:
(1) Is not required to comply
JIC Advisory Opinion 2012-18
May 3, 2012
Page 2
(a) except while serving as a judge, with Sections 3(B(9); and
{b) at any time with Sections 4D(3), 4E(1), 4F, 4G, 4H, SA(1), 5B(2) and 5D.
(2) may practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on 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 Comment to Canon 6C notes that a part-time Mental Hygiene Commissioner shall not 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. In JIC Advisory Opinion 2012-15, the Commission recently held that an attorney can serve as both a part-time mental hygiene commissioner and a part- time city attorney.
Based upon the foregoing, the Commission finds that you can concurrently serve as a Mental Hygiene Commissioner and a part-time appointed Municipal Judge. You should be mindful of any case conflicts and address them accordingly. To the extent that this opinion is inconsistent with JIC Advisory Opinion 07/03/2007 (Mental Hygiene Commissioner cannot concurrently serve as a Municipal Judge) the latter is overruled,
Please be advised that the Commission is unable to address your second question because municipal and police judges are not subject to the Code of Judicial Ethics. See JIC Advisory Opinion 2/26/1986.
The Commission hopes that this opinion answers the primary issue that you raised. If there is any further question regarding this matter do not hesitate to contact the Commission.
Sincerely,
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/tat
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