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Opinion 236

The Judicial Qualifications Commission has been asked for an advisory opinion on the question of whether a part-time magistrate judge, who also maintains a private law practice, may represent a litigant in a de novo appeal to superior court of a case that was originally tried in the very magistrated court where the judge sits, albeit before another judge of that court.

After careful consideration of the issue, the Commission has concluded that a part-time magistrate judge, who also practices law, may not represent a litigant in a de novo appeal in superior court of a case that originated in the magistrate’s own court.

Even though the part-time magistrate judge did not serve as judge in the proceeding below, the de novo appeal to superior court places the judge in the untenable position of contesting a ruling by his own court. The conduct of the judge in the hypothetical circumstances presented is likely to create, in reasonable minds, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence would be impaired. For instance, litigants and the public might well be concerned that the magistrate judge inour hypothetical might be influenced or conflicted in other cases by his representation of the client with the de novo appeal. After all, the magistrate judge could hardly be in a position fo challenge the ruling of one his fellow judges in a de novo appeal if the magistrate judge himself had previously made the similar rulings. The magistrate judge would be hard pressed to follow the ruling of his fellow judge, even if correct, while maintaining the de nove appeal on behalf of a paying client. These, and other, appearances of impropriety can only be avoided by declining the representation of the client.

The Code of Judicial Conduct demands that the judges avoid impropriety and the appearance of impropriety in all their activities. To represent an individual in superior court on a de novo appeal from magistrate court, when a lawyer also serves as a judge on that court, creates an appearance of impropriety that cannot be condoned by this Commission.

Any lawyer, who accepts the position of part-time judge in our state must place service to his or her judicial office first and therefore must be willing to accept certain restrictions. The present opinion appropriately illuminates one of those restrictions.

This 11th day of May, 2007

JQC Opinions

38

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