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Opinion 224

Numerous jurisdictions in this State continue to appoint and use practicing attorneys as part-time magistrates, and the Commission continues to receive inquiries concerning the propriety of such judges appearing as counsel in the courts on which they serve as judges. By reason of these facts and in an effort to clarify the position of the Commission respecting this issue, this advisory opinion is promulgated sua sponte.

Paragraph (A)(2) of the Application Section of the Code of Judicial Conduct provides that:

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 court on which they serve, or act as lawyers in proceedings in which they have served as judges or in any other proceeding related thereto.

As noted in the Preamble to the Code, the use of the phrase “should not” renders the rule non-binding and does not allow a judge to be disciplined for its violation. Nevertheless, the Rule is clearly intended as a statement of what is or is not appropriate conduct, and it is the unanimous opinion of this Commission that it is inappropriate for any part-time judge to appear as counsel in any court of the same class as that on which he or she serves as judge.

Although the 1987 revision of O.C.G.A. § 15-10-22 expressly permits a magistrate who is an attorney to practice in other courts, the section further provides that such an individual “may not practice in the magistrate’s own court or appear in any matter as to which that magistrate has exercised any jurisdiction.” (Emphasis added.)

The phrase “own court” is not defined in this statute or elsewhere. It is obvious, however, that a part-time magistrate who is also a practicing attorney cannot appear as counsel in the court in which such individual presides. Accordingly, the phrase “own court” can only be construed to mean the class of courts on which such individual serves. Such a construction is consistent with prior opinions of this Commission, including Opinion No. 44 (January 24, 1981) wherein it was held that an Associate Judge of the State Court of Dougherty County should not practice law in that Court in any manner whatsoever.

As thus viewed, the practice of law by part-time magistrate judges in any Magistrate Court sitting in the same county is prohibited by both the statute and the Code, and individuals occupying such dual positions should be governed accordingly, regardless of the frequency of such service.

Any prior opinion or comment which is in conflict with this holding is expressly withdrawn.

[Pertinent Code of Judicial Conduct provisions: Application Section. Cross reference to other relevant opinions for review: #44, #87, #88, #180, #220.]

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