May a West Virginia municipal judge (and the judge's law partners) accept appointments to represent people in juvenile status, abuse/neglect, and mental hygiene matters?

Plain-English summary

The Committee received a request to clarify L.E.I. 77-3, which held that neither a municipal judge nor his associates or partners are ethically permitted to accept cases involving the representation of persons charged with criminal offenses. The Committee clarified 77-3 for cases that do not involve criminal charges, finding it is not a violation of the Rules of Professional Conduct or the former Code for an attorney to accept juvenile status offense cases (because they do not involve representing juveniles charged with acts that would be a crime if committed by an adult), juvenile abuse and neglect proceedings in which there is no related criminal conduct charged, and mental hygiene proceedings. Counsel for the bar had previously advised, on an informal basis, that a municipal judge may represent a mental hygiene respondent when appointed by a court to do so. While the Committee noted that municipal judges are enabled under West Virginia Code Section 8-10-2 to hear mental hygiene proceedings, it specifically held that in such a case the municipal judge himself would be disqualified, but his disqualification would not be imputed to his associates or partners.

The Committee held that L.E.I. 77-3 remains valid and in full force and effect, but that the exceptions it noted are in keeping with the spirit of State ex rel. Sowa v. Summerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), in which the West Virginia Supreme Court of Appeals found "We are bound to guarantee availability of counsel for indigents," a precept that must override situations that may appear improper. For these reasons, the Committee held that municipal judges and their associates and partners may ethically accept representation of juvenile status offenders, parties to juvenile abuse and neglect proceedings with no related criminal charges, and mental hygiene respondents; and in the case of court appointments, the Committee specifically found that an attorney not only may, but should, accept such representation. The Committee noted in a footnote that the former Code's Canon 9 is no longer in effect, but that the Rules of Professional Conduct, which superseded the Code as of January 1, 1989, continued to embrace the spirit of the former Code.

Currency note

This opinion was issued in 1989, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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, deadline, or requirement mentioned here.

Common questions

Q: Can a municipal judge's law partner represent a defendant in a criminal case?

A: No. The opinion held L.E.I. 77-3 remains valid: neither a municipal judge nor his associates or partners may accept representation of persons charged with criminal offenses.

Q: What non-criminal appointments may the municipal judge and partners take?

A: The opinion concluded they may accept juvenile status offenses, juvenile abuse and neglect proceedings with no related criminal charge, and mental hygiene proceedings, and in court appointments not only may but should accept them.

Q: If a municipal judge is appointed to a mental hygiene case, are his partners disqualified too?

A: No. The opinion held the municipal judge himself would be disqualified, but his disqualification would not be imputed to his associates or partners.

Background and rules framework

The opinion interpreted the West Virginia Rules of Professional Conduct (effective January 1, 1989), which superseded the former Code of Professional Responsibility (including Canon 9), as applied to municipal judges who also practice law. It addressed imputed disqualification (the substance of Rule 1.10) by holding a municipal judge's mental-hygiene disqualification is not imputed to partners or associates, and grounded its exceptions in the indigent-counsel policy of State ex rel. Sowa v. Summerville and the enabling authority of W. Va. Code 8-10-2.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.10 / WV Rule 1.10 (imputed disqualification; municipal judge's disqualification not imputed to partners or associates)

Statutes:

• W. Va. Code 8-10-2 (municipal judges enabled to hear mental hygiene proceedings)

Cases:

• State ex rel. Sowa v. Summerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), the bound duty to guarantee availability of counsel for indigents overrides situations that may appear improper

Other opinions cited:

• L.E.I. 77-3 (clarified, still valid): a municipal judge and his associates or partners may not accept representation of persons charged with criminal offenses

See also

• WV Ethics Op. 93-03: Judge as Assistant Prosecutor
• WV Ethics Op. 92-01: Prosecutor Office DQ Imputation
• WV Ethics Op. 93-01: Pro Bono Program Conflicts

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e40a6293a6ec91e88.pdf

Original opinion text

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

LEI 89-03, CLARIFICATION OF PREVIOUS LEGAL ETHICS
INQUIRY 77-3, RE: MUNICIPAL JUDGES

The Committee on Legal Ethics has received a request for clarification of an earlier Opinion regarding municipal judges accepting court appointments. LEI 77-3 held that neither a municipal judge nor his associates or partners are ethically permitted to accept cases involving the representation of persons charged with criminal offenses.

This Opinion seeks to clarify LEI 77-3 in regard to cases which do not involve criminal charges. Specifically, the Committee on Legal Ethics finds that it is not a violation of either the Rules of Professional Conduct or the former Code of Professional Responsibility for an attorney to accept juvenile status offense cases (because they do not involve the representation of juveniles charged with acts which would be a crime if committed by an adult); juvenile abuse and neglect proceedings in which there is no related criminal conduct charged, and mental hygiene proceedings. Counsel for the bar has previously advised, on an informal basis, that a municipal judge may represent a mental hygiene respondent when court appointed to do so. While the Committee notes that municipal judges are enabled, under West Virginia Code Section 8-10-2, to hear mental hygiene proceedings, the Committee specifically holds that in such a case, the municipal Judge himself would be disqualified but his disqualification would not be imputed to his associates or partners.

The Committee holds that LEI 77-3 is still valid and in full force and effect. However, the exceptions noted in this Opinion are in keeping with the spirit of State ex rel Sowa vs. Summerville, 167 W.Va. 353, 280 S.E.2d 85 (1981). In that case, the West Virginia Supreme Court of Appeals specifically found "We are bound to guarantee availability of counsel for indigents. This precept, a foundation of our legal system, must override situations that may appear improper and violate Canon 9."[1] The Court went on to note, in Sowa, that the oath of admission to the Bar quotes the American Bar Association and the Canons of Professional Ethics, which published at the end of the Canons of Professional Ethics, reads: "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed."

For the foregoing reasons, the Committee on Legal Ethics holds that Municipal Judges and their associates and partners may ethically accept representation of juvenile status offenders, parties to juvenile abuse and neglect proceedings in which there are no related criminal charges and mental hygiene respondents. In the case of court appointments, the Committee on Legal Ethics specifically finds that an attorney not only may, but should, accept such representation.

[1] The Code of Professional Responsibility, of which Canon 9 is a part, is no longer in effect in West Virginia. However, the Rules of Professional Conduct which superseded the Code as of January 1, 1989, continued to embrace the spirit of the former Code.