Opinion 31

The Commission has been asked to express an opinion as to (1) whether part-time State Court Judges and members of their firms are disqualified from practicing criminal law in the Superior Court, and if so (2) whether it is incumbent upon a Superior Court Judge to bring this matter to the attention of the State Court Judge(s) in his circuit, and (3) whether it is incumbent on the Superior Court Judge to call this to the attention of the Solicitor of the State Court and members of his firm.

Rule 3.10 of the Code of Judicial Conduct provides:

Judges shall not practice law, unless allowed by law. 

The Application provisions of the Code of Judicial Conduct provide in part:

All judges, whether full-time, part-time, or pro tempore, shall comply with this Code except as provided below.

A. Part-time Judges A part-time judge is a person selected to serve as a judge on a periodic or continuing basis, but is permitted by law to devote time to some other profession or occupation, including the private practice of law. Part-time judges: (1) are not required to comply with Rules . . . 3.10 [practice of law], . . . .

(2) shall not practice law in the court on which they serve, or act as lawyers in proceedings for which they have served as judges or in any proceeding related thereto; nor should they practice law in any court over which the court they serve as a part-time judge conducts appellate review.

In view of the compliance provisions of the Code of Judicial Conduct and the exceptions noted therein, the Commission concludes that part-time State Court Judges are not by virtue of their offices disqualified from practicing criminal law in the Superior Court, and, therefore, that members of their firms are not disqualified.

However, it should be pointed out that a judge who is also a part-time practicing lawyer occupies a very sensitive position with reference to the Code of Judicial Conduct. This is particularly true with respect to those Canons which point out that it is necessary not only to avoid impropriety but the appearance thereof (see Title of Canon 1); that “A judge conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Rule 1.2(A)); that “Judges shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment,” (Rule 2.4(B)) nor should he “lend the prestige of their office to advance the private interests of the judge or others.” (Rule 1.3). The basic problem is, of course, that of keeping the functions of judge, on the one hand, and practicing attorney, on the other, completely disassociated one from the other. This requires what one might characterize as “an abundance of caution.” 

In view of this conclusion, no answer is required to questions (2) and (3).

[Pertinent Code of Judicial Conduct provisions: Rule 1.2(B), 2.4(B), 3.10, Application Provision A. Cross reference to other relevant opinions for review: #44, #45, #48, #69, #107, #134, #180, #185, #224.]

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