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Opinion 170

An opinion is requested with respect to the following question:

(1) Is a person who has acted as a judge pro tempore in the past, but no longer does so, and is a full time, elected prosecutor, precluded from litigating on behalf of the State of Georgia revocation of a probated sentence he imposed while acting as a judge pro tempore; and

(2) If the answer to the above is affirmative, does this not also disqualify his entire staff, which functions under his direct and indirect control, from also litigating that matter on behalf of the State of Georgia?

Section B of the Application Section of the Code of Judicial Conduct provides:

(2) Persons who have been judges pro tempore should not act as a lawyer in proceedings in which they have served as judges or in any other proceeding related thereto.

As the request correctly notes, the proposed revocation of the probated sentence, which the now full-time elected prosecutor originally imposed while acting as a judge pro tempore, is clearly “related” to the imposition of that sentence. In addition, the same individual would obviously be acting as a “lawyer” for the State in the proposed revocation proceeding.

Under the circumstances, it would be inappropriate for this individual to participate in the proposed revocation proceeding and question 1 must be answered in the affirmative.

The issue posed by Question 2 involves the possible disqualification of other members of the prosecuting attorney’s staff. Such an issue is not within the jurisdiction of this Commission, but rather is better addressed by the appropriate committee of The State Bar of Georgia. For this reason, the Commission declines to opine respecting the second issue posed.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rules, 1.2(B), 2.8, 3.10, Application Provision (B)(2). Cross reference to other relevant opinions for review: #31, #44, #69, #107, #127, #134.]

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