State of Washington
Ethics Advisory CommitteeOpinion 03-12
May an appellate court judicial officer permit a part-time judicial law clerk to sit as a pro tempore judge or court commissioner in a court of limited jurisdiction within the same appellate division?
The judicial law clerk is licensed to practice law in Washington, currently on active status, and in good standing. The law clerk is a part-time employee. The work as a pro tem judge will not detract from or interfere with the clerk duties.
As a pro tem judge, the law clerk will preside over various dockets in a limited jurisdiction court including infractions, first appearances, arraignments, mental health, civil impounds, anti-harassment orders and domestic violence restraining orders. With further training and experience, the law clerk may be asked to preside over pretrial and trial dockets in the court of limited jurisdiction. The law clerk anticipates appearing in the court of limited jurisdiction an average of three times a month.
Although cases from this court of limited jurisdiction rarely reach the appellate court level, the court clerk can screen court cases, advise the judges if there is potential conflict and assign the case to a panel that does not include the judicial officer for whom the law clerk works.
CJC Canon 2(A) provides that judges should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) provides that judges should not allow social or other relationship to influence their conduct or judgment. Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. CJC Canon 3(B)(2) provides in part that judges should require their staff observe the same standards that apply to the judge.
The judicial officer may permit a part-time law clerk to sit as a pro tempore judge or court commissioner in a court of limited jurisdiction within the same appellate division. Based on the factual representations made to the committee, it appears that only a very few matters over which the part-time law clerk/pro tempore judge might preside are appealed to the court which employs the law clerk. The judicial officer should ensure there is a mechanism in place in the clerk’s office to screen cases over which the law clerk/pro tempore judge has presided. In those cases, the case should be assigned to a panel that does not include the judicial officer for whom the law clerk works.
Additionally, the judicial officer must ensure that the law clerk’s pro tempore judge duties do not interfere with the administration of justice. For example, if cases involving the law clerk/pro tempore judge are routinely coming before the court where the law clerk is employed and causing the clerk’s office to perform additional duties to assign these cases to a panel that does not include the judicial officer, the judicial officer should advise the law clerk that he or she may no longer serve as a pro tempore judge.
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