Can a newly appointed magistrate or justice of the peace finish defending criminal cases he took on before taking the bench?

Plain-English summary

The committee was asked whether a magistrate or justice of the peace could finish defending criminal cases he had taken on before his appointment. The answer was no.

The committee rested on a cited reference addressing partners and members of the firms of judges and trial commissioners, which states that it is improper for any magistrate to represent defendants in criminal cases in any court of criminal jurisdiction. The committee concluded that this disposed of the question.

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. The structure of Kentucky's lower courts changed with the 1976 Judicial Article, which reorganized the magistrate and justice-of-the-peace roles. 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 Treat this page as historical context, not current guidance.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: Could a new magistrate wind down criminal defenses he had already started?

A: No. The committee held that a magistrate may not represent defendants in criminal cases in any court of criminal jurisdiction, so he could not complete a criminal defense undertaken before appointment.

Q: What did the committee rely on?

A: It relied on a cited reference on the firms of judges and trial commissioners, stating it is improper for any magistrate to represent defendants in criminal cases in any court of criminal jurisdiction.

Background and rules framework

The opinion addressed the conflict between sitting as a judicial officer and continuing to defend criminal cases, applying the former Code's restrictions on judges and those associated with them (rooted in old ABA Canon 36 and the judicial canons). The modern analogs are Model Rule 1.12 (lawyers serving as or associated with judges and other adjudicative officers) and Model Rule 1.7 (concurrent conflicts of interest), alongside the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• Old ABA Canon 36 and the judicial canons (judges and associated lawyers); modern analogs Model Rules 1.12 and 1.7, with the Code of Judicial Conduct

See also

• KBA Ethics Op. E-143: Office-Sharing With a Commissioner
• KBA Ethics Op. E-137: Lawyer-Officer Private Practice

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-154.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-154
Issued: July 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 Magistrate or Justice of the Peace complete the defense of criminal cases undertaken prior to his appointment?

Answer:

No.

OPINION

Under the heading "Partners and Members of Firm of Judges and Trial Commissioners", the cited reference states: "It is improper, therefore, for any ... Magistrate to represent defendants in criminal cases in any court of criminal jurisdiction." This disposes of the question.

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.