Can a part-time municipal judge or a city solicitor (or their law partners) represent criminal defendants in courts in the same county?

Plain-English summary

This opinion answered a written request to clarify the Committee's earlier opinion of September 28, 1977 (supplemented by letter dated March 3, 1978). The first question was whether a municipal judge or any of his partners or associates could represent criminal defendants in any court within the county. The Committee, citing Legal Ethics Inquiry #77-3, held that it would be improper for a municipal judge to represent criminal defendants in the Circuit Court so long as the individual occupies the position of municipal judge and has criminal jurisdiction, even though that jurisdiction is limited to violations of municipal ordinances and violations in Chapters 17A, 17B, and 17C of the West Virginia Code. The Committee concluded that, under DR 5-105(D), this proscription applies to the partners and associates of a part-time municipal judge.

The second question concerned the scope of a city solicitor's practice. The Committee confirmed that its reading of the September 28, 1977 opinion was correct: that opinion addressed specific facts, but its principles apply to any city solicitor in a similar situation. The Committee concluded that it makes no difference what agency investigated a criminal case; if the decision whether to prosecute is the responsibility of the office of the city solicitor, then neither the city solicitor nor any of his assistants may represent criminal defendants in courts in the same county, or in the Supreme Court of Appeals in cases originating in the county. The Committee quoted ABA Formal Opinion #34 (March 3, 1931) for the proposition that if the duties of the city attorney or his assistants include prosecution of offenders against criminal statutes or municipal ordinances, that duty makes it improper for any of them to defend any person accused of a crime during their tenure, extending to the defense of all criminal cases whether or not within the scope of their prosecution duties.

Currency note

This opinion was issued in 1978, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a part-time municipal judge represent criminal defendants in Circuit Court?

A: No. The opinion concluded, following LEI 77-3, that it is improper for a municipal judge to represent criminal defendants in the Circuit Court while occupying the judgeship with criminal jurisdiction, even where that jurisdiction is limited to municipal ordinances and Chapters 17A, 17B, and 17C of the West Virginia Code.

Q: Does the bar on a municipal judge's criminal defense work extend to the judge's law partners and associates?

A: Yes. The opinion concluded that under DR 5-105(D) the proscription applies to the partners and associates of a part-time municipal judge.

Q: Can a city solicitor or his assistants defend criminal cases in the same county?

A: No. The opinion concluded that if the office of the city solicitor is responsible for the decision whether to prosecute, neither the solicitor nor his assistants may represent criminal defendants in courts in the same county, or in the Supreme Court of Appeals in cases originating in the county, regardless of which agency investigated the case.

Q: Does it matter whether a particular prosecution falls within the solicitor's specific duties?

A: No. Quoting ABA Formal Opinion #34, the opinion concluded the bar extends to the defense of all criminal cases, whether or not they are within the scope of the lawyer's prosecution duties.

Background and rules framework

The opinion applied the West Virginia Code of Professional Responsibility then in force, together with the Committee's earlier opinions. DR 5-105(D) extended a disqualification affecting one lawyer to that lawyer's partners and associates. The Committee read its September 28, 1977 opinion and Legal Ethics Inquiry #77-3 to bar both a municipal judge with criminal jurisdiction and a prosecuting city solicitor (and their associated lawyers) from defending criminal cases in the same county, relying on ABA Formal Opinion #34 (March 3, 1931).

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-105(D) (disqualification imputed to a lawyer's partners and associates)

Other opinions cited:

• WVSB Legal Ethics Inquiry #77-3 (municipal judge representing criminal defendants)
• WVSB opinion of September 28, 1977, supplemented March 3, 1978 (scope of a city solicitor's practice)
• ABA Formal Opinion #34 (March 3, 1931) (a city attorney with prosecution duties may not defend criminal cases)

See also

• WVSB Ethics Op. 77-3: Municipal judge practicing criminal law
• WVSB Ethics Op. 79-3: Municipal judge and a firm's criminal practice
• WVSB Ethics Op. 78-14: Assistant Attorney General and court appointments
• WVSB Ethics Op. 81-10: Firm conflict, county officials and criminal appointments

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ef10bdc527fae449b.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE WEST VIRGINIA STATE BAR
COMMITTEE ON LEGAL ETHICS

September 11, 1978

West Virginia

Dear

Reference is made to your letter of August 9, 1978, requesting further clarification of this Committee's Opinion of September 28, 1977, supplemented by letter dated March 3, 1978.

With regard to your first question concerning a municipal judge or any of his partners or associates representing criminal defendants in any court within your county, this Committee, in Legal Ethics Inquiry #77-3, held that "it would be improper for [a municipal judge] to represent criminal defendants in the Circuit Court so long as [the individual] occupies the position of municipal judge and has criminal jurisdiction, although that jurisdiction is limited to violations of municipal ordinances and violations in Chapters 17A, 17B and 17C of the West Virginia Code." Further, this proscription would apply to the partners and associates of a part-time municipal judge in accordance with DR 5-105(D).

Concerning the scope of the city solicitor's practice, your interpretation of the September 28, 1977, opinion is correct. In that opinion, the Committee was addressing itself to the specific facts presented; however, the principles enunciated are applicable to any city solicitor in a similar situation. It makes no difference what agency investigated a criminal case. If the decision whether or not to prosecute is the responsibility of the office of the city solicitor, then neither the city solicitor nor any of his assistants may engage in the representation of criminal defendants in courts in the same county or in the Supreme Court of Appeals in cases originating in the county. I would reiterate from ABA Formal Opinion #34 (March 3, 1931) the following:

If the duties of the city attorney or his assistants include the prosecution in any court of offenders against criminal statutes or municipal ordinances . . ., this duty would make it improper for any of them to defend any person accused of a crime during their tenure of office which makes any of them a prosecutor. This would extend to the defense of all criminal cases whether within the scope of his prosecution duties or not.

Very truly yours,

John O. Kizer
Chairman