Can a lawyer serve at the same time as an elected municipal judge and as an assistant prosecuting attorney?

Plain-English summary

An assistant prosecutor who also served as an elected municipal judge asked the Committee whether his dual responsibilities posed a conflict of interest. The Committee explained that municipal judges have criminal jurisdiction over violations of city ordinances, that appeals are tried de novo in Circuit Court, and that the city is represented in those appeals by the city attorney, not the county prosecuting attorney's office.

The Committee had previously considered whether a municipal judge may defend criminal cases but had not explicitly answered the precise question presented. It recalled L.E.I. 77-3, which said a municipal judge should not act as an attorney for defendants in criminal trials in any other court, reasoning that one who acts as a judge one day and as an advocate the next is confronted with inherent difficulties, and that permitting a judge with criminal jurisdiction to practice criminal law would weaken public confidence in the impartiality and objectivity of the judiciary and could lead to suspicion that the judge was using the prestige of his position to further his private practice. It also recalled L.E.I. 79-3, which addressed whether a Charleston municipal judge's disqualification from criminal defense practice would be imputed to other lawyers in his legal corporation, noting Charleston's charter barred municipal judges from appearing as counsel in any criminal case in any court during their term and concluding no member of the judge's firm could try criminal cases in the Circuit Court of Kanawha County.

The Committee reasoned that if the inquiring prosecutor's municipal charter prohibited a municipal judge from appearing as counsel in a criminal case in any court, that ban would apply to prosecutors as well as defense counsel. Beyond any charter, the Committee believed that a municipal judge appearing as counsel in a criminal case for the State calls the judge's impartiality and objectivity into question no less than appearing as defense counsel: as a prosecutor, he or she may call police officers as witnesses one day and listen to the same officers' testimony as a judge the next. The Committee acknowledged that when municipal judges act as prosecutors there is no inference of using public office to benefit private practice, but found another erroneous inference could arise that prosecutors and municipal judges are arrayed together against criminal defendants; while prosecutors have a court-imposed duty to do justice unlike defense counsel, their responsibilities still differ from those of a judicial officer. The Committee therefore found it would be prejudicial to the administration of justice for a municipal judge to be employed simultaneously as an assistant prosecuting attorney.

Currency note

This opinion was issued in 1993, 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 one lawyer hold both a municipal judgeship and an assistant prosecutor position?

A: No. The opinion concluded it would be prejudicial to the administration of justice for a municipal judge to be employed simultaneously as an assistant prosecuting attorney.

Q: Why is prosecuting treated like defending for this purpose?

A: The opinion concluded that appearing as counsel for the State calls the judge's impartiality and objectivity into question no less than appearing as defense counsel, giving the example of calling police officers as witnesses one day and judging their testimony the next.

Q: Did the Committee rely only on the city charter?

A: No. The opinion noted a charter ban on appearing as counsel in any criminal case would cover prosecutors, but it also rested its conclusion independently on the prejudice to the administration of justice and the suspicion that prosecutors and judges are arrayed together against defendants.

Background and rules framework

The opinion interpreted West Virginia's Rules of Professional Conduct as they stood in 1993, applying the standard that a lawyer must not engage in conduct prejudicial to the administration of justice (the substance of Model Rule 8.4(d) / WV Rule 8.4(d)) to a lawyer holding both judicial and prosecutorial office. It built on two earlier West Virginia opinions, L.E.I. 77-3 and L.E.I. 79-3, addressing municipal judges who also practiced criminal law, and on the concern for public confidence in judicial impartiality.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / WV Rule 8.4(d) (conduct prejudicial to the administration of justice)

Other opinions cited:

• L.E.I. 77-3: a municipal judge should not act as attorney for defendants in criminal trials in any other court
• L.E.I. 79-3: imputation of a municipal judge's criminal-practice disqualification to other lawyers in his legal corporation

See also

• OH BPC Op. 2003-007: Special Prosecutor Role
• WV Ethics Op. 94-02: Uninsured-Motorist Counsel

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e4fc34d4bdf386042.pdf

Original opinion text

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

L.E.I. 93-03

Municipal Judge As Assistant Prosecutor

An assistant prosecutor also serves as an elected municipal judge. He has asked this Committee if his dual responsibilities pose a conflict of interest.

Municipal judges have criminal jurisdiction over violations of city ordinances. Appeals are tried de novo in Circuit Court and the city is represented by the city attorney, not the county prosecuting attorney's office.

The Committee has previously considered whether a municipal judge may defend criminal cases, but has never explicitly answered the precise question posed here. L.E.I. 77-3 stated that a municipal judge should not act as an attorney for defendants in criminal trials in any other court:

One who assumes to act as a judge on one day and as an advocate the next is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system. To permit a judge with criminal jurisdiction to practice criminal law would weaken the confidence of the public in the impartiality and objectivity of the judiciary. It could lead to the suspicion that the judge was using the prestige of his position to further his private practice.

In L.E.I. 79-3, the question was raised whether a Charleston municipal judge's disqualification to practice criminal defense law would be imputed to other lawyers in a legal corporation. That opinion noted that Charleston's City Charter provided that municipal judges "shall not appear as counsel in any criminal case in any court during his term of service." The Committee concluded that if the lawyer were elected municipal judge, no member of his firm could "try criminal cases in the Circuit Court Kanawha County."

If the municipal charter of the inquiring assistant prosecutor prohibits a municipal judge from "appearing as counsel in a criminal case in any court," this ban would apply to prosecutors as well as defense counsel. The Committee also believes that the appearance by a municipal judge as counsel in a criminal case for the State calls into question the judge's impartiality and objectivity no less than an appearance as defense counsel. As a prosecutor, he or she may call police officers as witnesses one day and listen to the same officers' testimony as a judge the next.

It is true that when municipal judges act as prosecutors, there is no inference that they are using their public office to benefit their private practice. But another erroneous inference may be made that prosecutors and municipal judges are arrayed on one side against criminal defendants on the other. While prosecutors do have a court imposed duty to do justice unlike a defense counsel, their responsibilities still differ from those of a judicial officer.

Therefore, the Committee finds that it would be prejudicial to the administration of justice for a municipal judge to be employed simultaneously as an assistant prosecuting attorney.

Entered: July 16, 1993

Charles M. Love, III, Chairman
Committee on Legal Ethics