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Opinion 107

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to the ethical propriety of a part-time judge serving in a judicial capacity while also serving as a criminal defense counsel.

Georgia law authorizes part-time judges to practice law, subject to certain restrictions. O.C.G.A. § 15-7-21 provides that part-time State Court Judges may engage in the private practice of law in other courts, but prohibits practice in the judge’s own court or appearances in any matter as to which the judge has exercised any jurisdiction. O.C.G.A. § 15-10-22(b) provides that Magistrates who are attorneys may practice in other courts, but not in their own courts, nor may they appear in any matter as to which their court has exercised any jurisdiction.

In addition, the Application section of the Code of Judicial Conduct states:

A. Part-time Judges. A part-time judge is a judge who serves on a continuing or periodic basis, but who is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge. Part-time judges:

(2) should not practice law in the court on which they serve or in any court subject to the appellate jurisdiction of the courts on which they serve, or act as lawyers in proceedings in which they have served as judges or in any other proceeding related thereto.

From this, it is clear that both the statutes and the canons authorize the practice of law by part-time judges and spell out the restrictions on such practice. For that reason, representation of a defendant in a criminal case by a part-time judge cannot be said to be per se inappropriate or unethical. At the same time, Canon 1 admonishes that:

Judges should avoid impropriety and the appearance of impropriety in all their activities.

For that reason, even though such representation is not in and of itself inappropriate, the regular or exclusive representation of such defendants by a judge, one of whose responsibilities include the issuance of criminal warrants or the trial of criminal cases, might destroy the appearance of impartiality and integrity essential to the administration of justice and, therefore, be inappropriate.

In reaching this conclusion, the Commission has been aware of the holding in Ga. Dept. of Human Resources v. Sistrunk, et al., 249 Ga. 543, but in Hudson v. State, 250 Ga. 479, the Supreme Court declined to adopt a rule which would require disqualification of any part-time judge from serving as an attorney in a criminal defense action, as Judge Gregory stated at page 482 of the opinion as follows:

Further, we decline to adopt the broad rule proposed by defendant which would require automatic disqualification of every attorney in a criminal defense action where the attorney is simultaneously employed as either a state court solicitor or probate judge.

The Commission, therefore, concludes that part-time judges are not prohibited from representing defendants in criminal cases, subject to the reservations spelled out in the statutes and the Canons as above set forth.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 3.10, Application Provision A(2). Cross reference to other relevant opinions for review: #19, #31, #44, #45, #48, #69, #127, #134, #180, #185.]

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