State of Washington
Ethics Advisory CommitteeOpinion 09-02
May a part-time or pro tem commissioner appear as a lawyer before a judge of the same bench on which the court commissioner serves?
The Application of the Code of Judicial Conduct (A)(1)(a) provides in pertinent part that a part-time judge is not required at any time to comply with CJC Canon 5(F), which is the provision prohibiting a judge from practicing law. Application (A)(1)(b) provides that a part-time judge may not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related to it.
The Application of the Code of Judicial Conduct (A)(2) provides in pertinent part that a pro tem judge is not required to comply with Canon 5(F), which is the provision prohibiting a judge from practicing law. A pro tem judge is only required to comply with Canons 2(A) and 2(B) while serving as a pro tem judge.
The Terminology section of the Code defines a “part-time judge” as those “who serve on a continuing or periodic basis, but are permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than a full-time judge.” A “pro-tem judge” is a person “appointed to act temporarily as judge.”
Certain provisions of Canon 3(D) and (E) are also informative on this issue. CJC Canon 3(D)(1) provides in pertinent part that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including instances in which (a) the judge has a personal bias or prejudice concerning a party, and (b) the judge previously served as a lawyer in the matter in controversy. A judge disqualified under either Canon 3(D)(1)(a) or (b) is not subject to remittal of disqualification under Canon 3(E).
The Ethics Advisory Committee previously, in a withdrawn opinion (Opinion 03-14), opined that in all cases a part-time court commissioner may not appear before the bench on which they sit when they are representing clients in the same types of matters over which they preside. The Committee has determined that the Application of the CJC and Canons 2(A) and 2(B) do not require a blanket prohibition but rather should be examined on a case-by-case basis. Thus, the fact that a part-time court commissioner appears before the bench on which he or she sits representing clients in the same types of matters over which he or she presides is not, in and of itself, violative of the code. It should be noted that the decisions of a court commissioner are subject to revision by a superior court judge as a matter of right. RCW 2.24.050.
Whether a part-time commissioner may appear as a lawyer in a case in the same court in which he/she serves as a part-time commissioner will depend on a variety of factors. The first factor is the term of the appointment as a court commissioner. A lawyer who is serving as a pro tem commissioner generally will not be prohibited from serving as a lawyer in the court in which the lawyer serves as a pro tem commissioner. The CJC recognizes that the more limited the service as a judicial officer, the less restrictive the restrictions on the practice of law need to be. See Application (A)(1)(a) and (b).
The next factor is the frequency and nature of the part-time court commissioner’s service. Generally, a part-time judicial officer should not be prohibited from practicing in the court where he or she serves only sporadically. On the other hand, if the part-time court commissioner serves on a regular recurring basis, the frequency and nature of the service must be examined to determine if appearing as an attorney in the appointing court in the same types of cases over which he or she presides as a judicial officer would undermine the public confidence in the impartiality of the judiciary.
The next factor is the type of cases over which the part-time commissioner presides and the type and nature of the cases in which that person will be appearing as an attorney. In no case is a judicial officer, either pro tem or part-time, permitted to appear as a lawyer in a case in which that person acted as a judge or in any matter related to such a case. Generally, a person, who on occasion serves as a judicial officer, may appear in the same court in which that service is performed in the same types of cases over which he or she presides. For instance, the person may appear in a family law matter as an attorney even though while serving as a judicial officer he or she presides over family law matters unless there is an independent factor which would cause the impartiality of the presiding judicial officer to be questioned.
For example, the part-time or pro tem court commissioner should not participate as an attorney in a case before a judge of the bench on which the court commissioner serves involving a disputed legal issue similar to one which he or she is likely to soon hear as a judicial officer. In this situation, the court commissioner/attorney’s history with the legal issue may call the affected court commissioner/attorney’s impartiality into question.
Another factor for consideration is the extent to which the court commissioner might have had communications with the judge of the bench on which the court commissioner serves about disputed legal issues that have or are likely to come before the bench. If, for example, the court commissioner has discussed a particular disputed legal issue with a judge of the bench on which the court commissioner serves, and that legal issue is likely to be considered in a case in which the court commissioner serves as an attorney, the court commissioner should not appear as an attorney in such a case before the judge of the bench on which the court commissioner serves.
The foregoing considerations are not intended to be exhaustive. In each case in which the court commissioner intends to appear before a judge of the bench on which the court commissioner serves, the court commissioner should examine the situation to determine whether public confidence in the impartiality of the judiciary would be undermined if the court commissioner were to serve as an attorney in the case.
When a part-time court commissioner appears as counsel in a matter of the same type over which the court commissioner presides, and opposing counsel is not aware of the judicial service, the court commissioner should so inform the opposing counsel or unrepresented parties.
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