State of Washington

Ethics Advisory Committee

Question:

May a part-time court commissioner, with a regular schedule of two hours weekly presiding over Involuntary Treatment Act hearings, contract with the state Office of Civil Legal Aid to provide very part-time representation of legally-free children at dependency hearings in the same county?  The commissioner receives approximately 20 appointments per year under this contract.  Representation is generally limited to a review every six months.

The part-time commissioner has sat as a commissioner in the county’s juvenile court approximately five to six times per year.  In the last year she presided over three offender calendars, two dependency calendars, and one hearing as a judge pro tempore.  None of these involved cases where she represented an involved child.  She has no regularly scheduled calendars in the juvenile court.

Answer:

A judge within the meaning of the Code is anyone authorized to perform judicial functions, including a court commissioner. CJC Application (I)(A). The terminology section of the Code of Judicial Conduct defines part-time judges as judges who serve on a continuing or periodic basis, but are permitted by law to devote time to some other profession or occupation. Although a part-time judge is required to comply with most provisions of the Code, a part-time judge is not required to comply with CJC 2.10, 3.4, 3.8, 3.9, 3.10, 3.11, or 3.14. A part-time judge is required to comply with all other provisions of the Code, including CJC 1.2 which requires a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety and CJC 1.3 which prohibits using the prestige of judicial office to advance the interests of others.

Additionally, CJC 2.1 requires that the duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities. CJC 2.2 requires that a judge uphold and apply the law and perform all duties of the judicial office fairly and impartially. Finally, CJC 3.11(C)(1), (2), and (3) require judges not to engage in financial activities if they will interfere with the proper performance of judicial duties, lead to frequent disqualification of the judge, or involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves.

Pursuant to RCW 13.34.100(6)(a), the court must appoint an attorney for a child when there is no remaining parent with parental rights for six months or longer, if the child is not already represented. The government entity responsible for oversight and contracting for attorneys is the Office of Civil Legal Aid (OCLA). RCW 13.34.100(6)(c)(iii). Attorneys for this program are required to assist the child by ensuring the child’s voice is considered in judicial proceedings; engaging the child in his or her legal proceedings; explaining to the child his or her legal rights; assisting the child to consider the consequences of different decisions and encourage accountability, when appropriate, among the different systems that provide services to children.

Opinion 09-02 set forth multiple factors to consider when determining whether a part-time or pro tempore commissioner may appear as a lawyer before a judge of the same bench, and noted generally that a part-time judicial officer should not be prohibited from practicing in the court where he or she serves only sporadically. That opinion recognized that when a part-time commissioner serves on a “regular recurring basis,” the frequency and nature of the service must be examined to determine if the public confidence in the impartiality of the judiciary will be undermined.

In the facts presented, the part-time commissioner has a regular, recurring weekly calendar, along with more sporadic duties that have included covering calendars in the county’s juvenile court where the person also practices as an attorney representing legally-free children pursuant to a contract with a government entity. Although the represented time commitment as a contract attorney is low, approximately 20 cases with a review hearing every six months, the role of a legally-free child’s attorney is dependent on being a comprehensive advocate in the courtroom and with all related services for the child. (http://ocla.wa.gov/programs/childrens-representation/). State practice standards for attorneys of legally-free children include communicating regularly with all professionals involved in a child’s life and advocating for services on behalf of the child.

For these specific facts, given the regular and recurring weekly calendar on which the part-time commissioner presides in juvenile court and the nature of the representation required of an attorney appointed to represent legally-free children in the same court, the public’s confidence in the independence and impartiality of the judiciary will be negatively impacted by seeing the same person in both roles. Therefore, a part-time commissioner may not contract with OCLA to provide representation of legally-free children in dependency hearings while appearing as a lawyer in front of the same bench.

This conclusion is consistent with Opinion 91-17, which addressed the propriety of a part-time judicial officer accepting employment to provide legal service for a governmental entity. The committee advised that contracting with a governmental entity on a short- or long-term basis may create an appearance of a conflict interest and that a part-time judicial officer is prohibited from contracting with a governmental entity to provide nonjudicial legal services before the same level of court in the same city or county.

We distinguish opinion 98-03, which advises that a permanent part-time commissioner may act as a guardian ad litem if the dual roles are appropriate under RCW 2.08.185. Unlike the role of a guardian ad litem, RCW 13.34.100(6)(a) and OCLA require a broad scope of representation and attorney responsibilities which include advocacy with other governmental entities. For these reasons, contracting with OCLA to provide representation to legally-free children within the same county presents an impermissible conflict with the duties assigned to the part-time judge.

We also reviewed opinion 97-12 and have determined that it is limited to the sporadic, infrequent service of a commissioner pro tempore. In contrast to a part-time judge, a judge pro tempore serves only once or at most sporadically for a case or docket. Therefore, opinion 97-12 does not apply to the present facts.

Part-time judges should be alert to the possibility of conflicts of interest and should liberally disclose on the record to litigants appearing before them the fact of any extrajudicial employment or other judicial role, even if there is no apparent reason to withdraw.

Opinion 15-03

10/27/2015