An attorney and part-time Recorders Court Judge requests an opinion concerning the appropriateness of her regularly representing indigent criminal defendants in the State and Superior Courts in light of Opinion Nos. 107 and No. 134 and the Supreme Court decision in Hudson v. State, 250 Ga. 134. Specifically, is the frequency or regularity of such representation of significance and does such representation constitute an appearance of impropriety? While the statutory laws of this State restrict the practice of law by part-time State, Probate and Magistrate Court Judges, there is no such restriction on a Pro tempore Judge. In fact, the only such restriction appears to be in Paragraph C of the Application Section of the Code of Judicial Conduct which is clearly not applicable in the instant case.
In addition, in Hudson v. State, 250 Ga. 479, the Supreme Court declined to adopt a rule requiring automatic disqualification of every attorney in a criminal defense action where the attorney was simultaneously employed as either a state court solicitor or probate judge.
Citing these precedents, the Commission in Opinion No. 134, expressly declined to adopt a per se ruling requiring automatic disqualification and again declines to do so in this instance.
Nevertheless, all part-time judges are reminded that the Canons require a judge to avoid impropriety and the appearance of impropriety in all their activities (Rule 1.3) and to disqualify in any proceeding in which their impartiality might reasonably be questioned (Rule 2.11(A)).
In the instant case, the judge is presumably paid with public funds for her judicial service, as well as for her representation of indigent criminal defendants. This fact, together with the fact that she routinely hears and disposes of criminal matters in the Recorders Court might suggest to an average citizen that such judge/attorney might be in some special position to exert her influence or otherwise obtain a more lenient sentence from a fellow judge than would a non-judge attorney, and thus give rise to an impermissible appearance of impropriety.
Accordingly, and as the Commission noted in Opinion No. 107:
. . . 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.
[Pertinent Code of Judicial Conduct provisions: Compliance Provisions (C), Rule 1.3, Rule 2.11. Cross reference to other relevant opinions for review: #19, #31, #44, #45, #48, #69, #107, #134, #180.]