Opinion 200

An opinion is requested by the Chief Justice of the Supreme Court of Georgia on the propriety of a retired superior court judge holding senior status (and consequently holding court) and simultaneously practicing law.

Insofar as this question involves the interpretation and application of statutes and uniform court rules, it directs itself to the courts rather than this Commission. However, the Commission notes that O.C.G.A. § 47-9-60 was amended in 1994 to remove a statutory prohibition against the practice of law by senior judges, although U.S.C.R. 18.8 permits senior judges to practice law when authorized by law only if the senior judge declares himself ineligible to (and does not) serve as judge. Whether the 1994 amendment to O.C.G.A. § 47-9-60 is tantamount to express permission for senior judges to practice law is a question for court decision.

By definition a senior judge is a superior court judge retired from active service yet authorized to serve as a superior court judge. U.S.C.R. 18.1(b). Accordingly, senior judges are subject to the provisions of the Code of Judicial Conduct and Rule 3.10 thereof which provides: “Judges should not practice law unless allowed by law.”

At the same time, senior judges come within the definition of a part-time judge as set forth in paragraph A of the Application Section of the Code of Judicial Conduct and, viewed in this light, would not be required to comply with Rule 3.10.

Therefore, the practice of law by a senior judge is not expressly forbidden by law nor prohibited by the Code of Judicial Conduct but is limited by court rule.

Nevertheless, it is the unanimous opinion of this Commission that the practice of law by senior judges would inevitably lead to an appearance of impropriety which should not be sanctioned. There exists an inherent conflict in the perception (as well as the fact) of the role of lawyer and judge. Without making an exhaustive review of the statutes and rules of every possible jurisdiction, it is safe to say that full-time judges in all state and federal courts are not allowed to practice law. Why? Because judges must appear to be detached and impartial and not subject to the partisan allegiances which lawyers are paid to embrace and espouse. For the same reason, a retired judge who intends to continue to exercise the functions, powers (and privileges) of a regular superior court judge should eschew the practice of law. The fact that the judge is retired is irrelevant; the same conflict exists.

In addition, appearances of senior judges as counsel before colleagues with whom such judges sometimes serve and routinely associate professionally may create in reasonable minds a perception that the complete impartiality required by the Code of Judicial Conduct could not be achieved. It is unlikely that any member of the public much less a litigant on the opposing side, could ever be made to believe that the presiding judge would or could be impartial if a fellow judge is acting as counsel for the opposing party.

Finally, counsel who regularly appear before senior judges may well be placed in the position of litigating against the judge as an attorney today and having that same individual adjudicate his or her case the next day.

Georgia has a lamentable tradition of employing part-time judges, but this does not detract from the age-old wisdom that one cannot simultaneously be advocate and arbiter and that the legal profession, the judiciary and the general public is best served when judges do not practice law.

For all these reasons, the practice of law by senior judges should not be condoned, and if senior judges desire to engage in the private practice of law, such judges should comply with U.S.C.R. 18.8 and declare themselves ineligible to serve as judges.

[Pertinent Code of Judicial Conduct provisions: Canons 1, Rule 3.10. Cross reference to other relevant opinions for review: #44, #116, #128, #142, #184.]

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