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Opinion 134

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether a part-time judge of the Recorder’s Court of Columbus should represent a criminal defendant in the State or Superior Courts of Muscogee County, after the defendant or his case, has appeared on the docket of the Recorder’s Court of Columbus.

In Opinion No. 107, this Commission concluded that representation of a criminal defendant by a part-time judge was not per se inappropriate, even if his responsibilities included the issuance of criminal warrants or the trial of criminal cases, unless such representation was regular or exclusive or other circumstances contributed to destroy the appearance of impartiality and integrity necessary to the administration of justice.

In so doing the Commission cited and relied on the decision of the Supreme Court in Hudson v. State, 250 Ga. 479, in which the Court declined to adopt a rule which would have required disqualification of any part-time judge from serving as an attorney in a criminal defense action and quoted Judge Gregory who stated at page 182 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 question now presented, however, draws the factual situation somewhat closer and asks whether a part-time judge should undertake or continue such representation after the case or the defendant has appeared on the docket of the Recorder’s Court. Moreover, the propounder suggests that it would be improper because, even though the part-time judge does act as counsel in Recorder’s Court, it might suggest that some special treatment has been arranged for the defendant in the Recorder’s Court.

Rule 2.11(A) mandates that a judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned, including any situations within the parameter of this question, and a judge should disqualify himself, or be disqualified, in any case where that is determined to be true, but in view of the decision in Hudson v. State above set forth, the Commission must decline to adopt a per se rule which would require automatic disqualification under such circumstances.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 3.10, Application Provisions (A)(2). Cross reference to other relevant opinions for review: #19, #31, #44, #45, #48, #69, #107, #180, #185.]

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