A lawyer who has a public defender contract may not ethically serve simultaneously as a judge pro tempore in Superior Court on the criminal bench, nor the juvenile bench. The lawyer may serve simultaneously as a judge pro tempore on the civil bench or domestic relations bench. The lawyers partner may ethically serve as a judge pro tempore even in criminal and juvenile matters.
Attorney A has a public defender contract in Superior Court. The attorney wants to serve simultaneously as a judge pro tempore in Superior Court.
1A. May the attorney serve simultaneously as a judge pro tempore in Superior Court on the criminal bench?
1B. On the civil bench?
1C. In juvenile court?
1D. On domestic relations matters?
2. Can A's partner, Mr. B, serve as a judge pro tempore while A has the public defender contract?
ETHICAL RULES INVOLVED
A. Rules of Professional Conduct
ER 1.7. Conflict of Interest: General Rule
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
- The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
- each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
- the lawyer reasonably believes the representation will not be adversely affected; and
- the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the Consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
ER 1.10. Imputed Disqualification: General Rule
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8 (c), 1.9 or 2.2.
(b) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.
B. Code of Judicial Conduct
A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. Be should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
Compliance with the Code of Judicial Conduct
This Code shall govern all of the justices and judges of all of the courts in Arizona's judicial system performing judicial functions, including an officer such as a court commissioner, justice of the peace and city or town magistrate. All judges should comply with this Code except as provided below:
B. Judge Pro Tempore. A judge pro tempore is a person who is appointed to act temporarily as a judge, except that officers of the judicial system performing judicial functions, as defined above, shall not be deemed judges pro tempore qualifying for the exceptions contained herein.
While acting as such, a judge pro tempore is not required to comply with Canon 5C(2), (3), D, E, F, and G;
A person who has been a judge pro tempore should not act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto.
There appear to be no Arizona ethics opinions directly on point. However, there are four of our opinions which seem to be relevant and which contain guidelines for attorneys and judges in similar situations:
Opinion No. 74-6 was an exhaustive opinion which discussed numerous A.B.A. opinions and two earlier Arizona opinions, and then set forth guidelines which should be observed by attorneys serving as criminal court commissioners from the standpoint of their law practices and appearances before the Superior Courts, Justice Courts and City Courts within the county.
Opinion No. 75-3 was a request to reconsider Opinion No. 74-6, and also pertained to special court commissioners.
Opinion No. 77-3 was a later opinion involving special magistrates in the City Court and their ability to appear as defense counsel in that Court. The opinion concluded that an attorney who has been appointed to act as a “special” magistrate in City Court should not also appear as defense counsel in that Court.
Opinion No. 80-14 reaffirmed the positions set forth in the three earlier opinions.
Question 1A: We believe that the reasoning set forth in all four of our ethics opinions cited, together with the Rules provisions set forth above, and the continued life of the “appearance of impropriety” standard under Gomez v. Superior Court, 149 Ariz. 223, 225, 717 P.2d 902, 904 (1986), all lead to the conclusion that it would be improper for an attorney who has a public defender contract to serve simultaneously as a judge pro tempore in Superior Court on the criminal bench.
Question 1B: On the civil bench. We believe that it would be proper, under the circumstances stated, for the inquiring attorney to serve as a judge pro tempore on the civil bench so long as full disclosure is made to all parties in each case, all of the guidelines set forth in our Opinion No. 74-6 are complied with, and no persons involved in the proceedings are also involved in matters being handled by the attorney under the public defender contract.
Question 1C: In juvenile court. It is our opinion that the reasoning set forth in the answer to Question 1A, above, should also apply as to juvenile court. We believe that it would involve a conflict of interest for the attorney to serve on the juvenile bench while holding a public defender contract. It would seem that the same potential for a conflict of interest might easily exist in juvenile court, where, for example, police officers might be appearing as witnesses who would be adverse witnesses when Attorney A was serving his public defender clients.
Question 1D: On domestic relations matters. It is our opinion that this would be proper so long as the guidelines set forth in the answer to Question 1B, above, are complied with.
Question 2: Can A's partner, Mr. B, serve as a judge pro tempore while A has the public defender contract? Under the imputed disqualification rule set forth in ER 1.10, cited above, and the numerous ethics opinions relating to "infectious" disqualification, it would initially seem that Mr. B would be bound by the same conditions set forth above for Attorney A. However, our Opinion No. 80-14 specifically concluded that, at least as to special city magistrates, or part-time commissioners (which are seemingly analogous to a judge pro tempore), the Compliance statement of the Code of Judicial Conduct would not also apply to their partners or associates who are appearing before other judges in those court systems.
Accordingly, it is our opinion that it would be proper for B to serve as a judge pro tempore, even in criminal and juvenile matters, so long as A defends cases only before other judges in the court system.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987
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