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Opinion 87

The Commission has been asked for an Advisory Opinion with respect to the following questions:

(1) Where an arrest warrant has been issued by another judge of his court, but there were no other proceedings in his court, may a part-time Magistrate, who had no part in such proceedings, represent the defendant in the State or Superior Court?

O.C.G.A. § 15-10-22(B) provides as follows:

(B) A magistrate who is an attorney may practice in other courts but may not practice in his own court or appear in any matter as to which his court has exercised any jurisdiction. (underscoring added)

This question must be answered in the negative for the reason that, under the terms of the statute, the Magistrate is disqualified from appearing in any matter in which his court has exercised jurisdiction without regard to whether he has done so.

(2) Considered in the light of Thompson v. State, 254 Ga. 393(2) (1985), which holds that an attorney is not per se disqualified to represent an indigent defendant because his partner is a part-time solicitor, what restrictions are there on the practice of law by a partner of a part-time Magistrate, particularly in the court where his partner serves as a part-time judge? The question, as posed, is too broad and, for that reason, the Commission declines to answer, except to say that, in general, the restrictions on the partner are the same as those on the part-time judge.

(3) In view of O.C.G.A. § 15-10-22B, quoted above, may a magistrate practice law and do consulting work on his own time for other attorneys, such as drafting legal documents, undertaking legal research and writing briefs, where no court of his county is involved, even though the county considers him to be a full-time employee?

Rule 3.10 now provides: “Judges shall not practice law, unless allowed by law.” But the code section quoted above clearly authorizes magistrates to practice law, subject to limitations stated therein.

At the same time, the question implies that the magistrate has made a full-time commitment to his judicial duties, and any effort to practice law which interfered with the proper performance of these duties would be a violation of Rule 3.1.

[Pertinent Code of Judicial Conduct provisions: Rule 1.2(B), 2.8, 3.10. Cross reference to other relevant opinions for review: #59, #88, #116, #224.]

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