Can a part-time U.S. Magistrate represent local governments and agencies on a retainer when he could later have to disqualify himself?

Plain-English summary

The committee considered whether a part-time United States Magistrate, in a district that also had a full-time magistrate and several other part-time magistrates, could represent local governmental organizations and agencies on a retainer basis. It answered qualified yes.

The magistrate may not represent or advise local governmental organizations or agencies in any matter that may come before him in his official capacity. Apart from that, the committee saw no reason he could not be on the other side from the United States in civil matters unrelated to his magistrate duties, since there is no attorney-client relationship between him and the United States. The committee acknowledged that representing certain local agencies in civil matters would sometimes require the magistrate to disqualify himself, especially if he had been assigned civil duties under 28 U.S.C. 636(b); its examples were that a magistrate retained to advise a sheriff could not perform 28 U.S.C. 636(b) duties in a federal civil-rights action against the sheriff, and a magistrate representing a city probably should not conduct a preliminary hearing or try a minor offense under 18 U.S.C. 3401 in which a city police officer is a witness.

The committee framed the real question as whether a part-time magistrate has a duty to avoid all private representation carrying a substantial possibility of disqualification (EC 5-17, 8-8; ABA Formal Opinion 135 (1935)). It concluded he does not. It reasoned that a part-time magistrate's duties are subject to unpredictable change at the District Court's discretion, that he is not unique in his district (a full-time magistrate and several part-time magistrates can all perform his duties, so his disqualification burdens no one), and that he is easily relieved of office if his disqualifications become too frequent. The frequency of a magistrate's disqualifications, the committee said, is a matter for the tolerance of the United States District Judges, so he may represent local governmental organizations and agencies in civil matters on a retained basis.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time U.S. Magistrate represent local governments on a retainer?

A: Qualified yes. The committee concluded he may represent local governmental organizations and agencies in civil matters on a retained basis, except in matters that may come before him officially.

Q: Does the chance he might have to disqualify himself bar the representation?

A: No. The committee held a part-time magistrate has no duty to avoid all representation carrying a substantial possibility of disqualification; the frequency of disqualifications is left to the tolerance of the United States District Judges.

Q: Why did the magistrate's part-time, non-unique role matter?

A: Because a full-time magistrate and several other part-time magistrates in the district could perform his duties, so his disqualification in a given matter cast no burden on the United States, and he could be relieved of office if disqualifications became too frequent.

Background and rules framework

The opinion applied EC 5-17 and EC 8-8 of the former Code of Professional Responsibility (a lawyer holding public office and the interests that office may create) and ABA Formal Opinion 135 (1935), against the backdrop of the magistrate's federal duties under 18 U.S.C. 3401 and 28 U.S.C. 636(b). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.12 (lawyers serving as judges or other adjudicative officers, including part-time judges).

Citations and references

Rules of Professional Conduct:

• EC 5-17, 8-8 (former Code of Professional Responsibility); modern analogs Model Rules 1.7 and 1.12

Statutes:

• 18 U.S.C. 3401 (trial of minor offenses by magistrates); 28 U.S.C. 636(b) (magistrate duties)

Other opinions cited:

• ABA Formal Opinion 135 (1935)

See also

• KBA Ethics Op. E-131: Magistrate's Partners Defending Criminal Cases
• KBA Ethics Op. E-133: County Judge Pro Tem Defending Criminal Cases
• KBA Ethics Op. E-129: County and City Attorney

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-136.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-136
Issued: January 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a part-time United States Magistrate (in a federal judicial district in which there are several other part-time magistrates as well as a full-time magistrate) represent local governmental organizations and agencies on a retainer basis?

Answer:

Qualified yes.

References:

18 U.S.C. 3401; 28 U.S.C. 636(b); EC 5-17, 8-8; ABA Formal Opinion 13S (1935)

OPINION

A part-time United States Magistrate may not represent or advise local governmental organizations or agencies in any matter that may come before him in his official capacity.

Local governmental agencies and organizations frequently have dealings with the United States, sometimes of an adversary nature. But there is no attorney-client relationship between the magistrate and the United States, and in general there is no reason why he should not be on the other side from the United States in civil matters unrelated to his duties as magistrate.

Representation of certain local governmental organizations and agencies in civil matters will sometimes require the magistrate to disqualify himself from hearing certain matters that come before him, especially if he has been assigned duties in civil matters under 28 U.S.C. 636(b). E.g., if he has been retained to advise a sheriff, he could not perform duties under 28 U.S.C. 636(b) in a federal civil rights action against the sheriff. If he represents a city, he probably should not conduct a preliminary hearing or try a minor offense (18 U.S.C. 3401) in which a city police officer appears as a witness.

The question is whether or not a part-time magistrate has a duty to avoid all private representation that carries with it a substantial possibility that he may have to disqualify himself in particular matters as they arise, Code of Professional Responsibility, EC 5-17, 8-8; ABA Formal Opinion 135 (1935).

It is always difficult to predict whether particular private representation will or will not bring an office-holding lawyer into conflict with his official duty, but it is more difficult than usual in the case of a part-time magistrate because the scope of his duties is subject to unpredictable change depending on the discretion of the United States District Court, 18 U.S.C. 3401, 28 U.S.C. 636(b). Unlike some other kinds of officers, a part-time magistrate is not unique in his district in the district in question there are a full-time magistrate and several part-time magistrates, all of whom can perform the duties of a part-time magistrate, so that disqualification in a particular matter casts no burden on the United States. Again unlike some other kinds of officers, a part-time magistrate is easily relieved of office if the frequency of his disqualifications becomes serious.

We feel that the frequency of a magistrate's disqualifications is a matter for the tolerance of the United States District Judges. We do not believe he has any ethical duty to avoid all representation which carries with it a substantial possibility that he may have to disqualify himself in some particular matter. Accordingly, we conclude that a part-time United States Magistrate may represent local governmental organizations and agencies in civil matters on a retained basis.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.