Can a lawyer who is elected magistrate stay with his law firm and keep his name on the firm's stationery?

Plain-English summary

An associate in a law firm was elected magistrate, and the firm asked whether he could continue in his position with the firm and keep his name on the firm stationery. The committee answered yes.

The committee found no statutory or ethical prohibition against the practice of law by one who holds the office of magistrate, and no reason why a magistrate may not associate with others in the practice of law. It followed that his name could appear on the firm stationery so long as there was no reference to his elective position.

The committee noted restrictions, however. Relying on KBA Opinion E-70, it observed that a justice of the peace cannot represent persons in criminal cases in other courts, even where his own court has no criminal jurisdiction; and KBA Opinion E-61 had extended that same limitation to the partners or members of a firm with which a judge is associated, which applied here. The committee added, citing ABA Formal Opinion 142 and again KBA E-61, that it is improper for a partner of a judge to practice in a court over which the judge presides, and the inquiring attorneys would need to observe that prohibition in the firm's future conduct.

Currency note

This opinion was issued in 1974 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 Treat this page as historical context, not current guidance.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 lawyer elected magistrate keep practicing with his law firm?

A: Yes. The committee found no statutory or ethical bar to a magistrate practicing law or associating with others in practice.

Q: Can the magistrate's name stay on the firm's stationery?

A: Yes, so long as the stationery makes no reference to his elective position as magistrate.

Q: Can the magistrate or his firm partners handle criminal cases?

A: No, not freely. Per KBA Opinions E-70 and E-61, a justice of the peace cannot represent persons in criminal cases in other courts, and that limitation extends to the partners or members of his firm.

Q: Can a firm partner appear in a court the magistrate presides over?

A: No. Citing ABA Formal Opinion 142 and KBA E-61, the committee held it improper for a partner of a judge to practice in a court over which the judge presides.

Background and rules framework

The opinion applied DR 2-102 of the former Code of Professional Responsibility to the firm-stationery question (a magistrate's name may appear if it omits the elective office) and drew on prior KBA and ABA opinions for the conflict limitations on a judge's firm. The modern analogs are Model Rule 1.12 (former judges and the imputation of their disqualification to a firm) and Model Rule 7.5 (firm names and letterheads).

Citations and references

Rules of Professional Conduct:

• DR 2-102 (firm stationery; name may appear without reference to elective office); modern analog Model Rule 7.5
• Modern analog Model Rule 1.12 (judges and firm imputation)

Other opinions cited:

• KBA Opinion E-70 (justice of the peace cannot represent persons in criminal cases in other courts)
• KBA Opinion E-61 (the same limitation applies to a judge's firm partners or members)
• ABA Formal Opinion 142 (May 9, 1935) (improper for a judge's partner to practice in the judge's court)

See also

• KBA Ethics Op. E-115: County Attorney at the Bench
• KBA Ethics Op. E-119: Trial Commissioner, Other County
• KBA Ethics Op. E-154: Magistrate Finishing Criminal Defense

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-086.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-86
Issued: March 1974

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 an attorney ethically continue his association with a law firm and have his name included on firm stationery following his election to the position of magistrate?

Answer:

Yes.

OPINION

An associate in a law firm has recently been elected to the position of magistrate. The firm now inquires whether that associate may continue in his position with the firm and have his name included on firm stationery.

The Committee finds no statutory or ethical prohibition against the practice of law by one who holds the position of magistrate. Neither are we aware of any reason why the holder of this office may not associate himself with others in the practice of law. In view of these conclusions, it necessarily follows that his name appears on the firm stationery so long as there is no reference to his elective position.

However, there are some restrictions we find it appropriate to mention. Recently, in KBA Opinion E-70 we noted that a justice of the peace cannot represent persons in criminal cases in other courts, even where he has no criminal jurisdiction of his own court. In KBA Opinion E-61, we spoke of a similar prohibition and observed that the same limitations applied to the partners or members of a firm with which a judge is associated. This has obvious application in the present instance.

Secondly, in ABA Formal Opinion 142 (dated May 9, 1935) it was held improper for the partner of a judge to practice in a court over which he presides. This restriction was also referred to in KBA E-61. The inquiring attorneys will also want to observe this prohibition in the future conduct of their firm.

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.