State of Washington

Ethics Advisory Committee

Question:

Can an attorney in good standing with the Washington State Bar Association sit as a judge pro tempore in the same court where she or he is also the court manager? 

Answer

A pro tempore judge is defined in the Code of Judicial Conduct (CJC), in part, as a person who serves or expects to serve part-time as a judge on a regular or periodic basis in fewer than twelve cases or twelve dockets annually, counted cumulatively without regard to each jurisdiction in which that person serves a judge. CJC Terminology. A pro tempore judge is subject to those provisions in the CJC noted for judges pro tempore and is subject to the oversight of the Presiding Judge. CJC Application; GR 29(h); and CJC 2.12(B).

Generally, a court manager/administrator is responsible for the management of personnel performing court functions; oversight of daily court operations; development and implementation of judicial policy and procedures; court budget development; case-flow management; oversight of projects, grants, and contracts; and other responsibilities as the court may require.¹ The court manager/administrator performs his/her duties at a professional expert level that requires application of knowledge and expertise for decision making on complicated issues. A court manager/administrator reports directly to the Presiding Judge, and the Presiding Judge is responsible for requiring the court manager/administrator to act with fidelity and in a diligent manner consistent with a judge's obligations under the Code of Judicial Conduct. GR 29(f)(5)(c); CJC 2.12(A).

The CJC requires a judge to uphold and apply the law, and perform all duties of judicial office fairly and impartially. CJC 2.2. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, before that judge's court with some exceptions. CJC 2.9 (A). And, a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC 1.2.

In EAC 09-02, the committee considered whether attorneys who serve as pro tempore or part-time judges may appear on cases in the same court. EAC 09-02. In that opinion, the committee stated that the fact that a part-time court commissioner appears as an attorney before the court on which he or she sits, representing clients in the same type of matters does not, in and of itself, violate the code. However, the committee provided several non-exhaustive factors to evaluate whether in a particular situation the public confidence in the impartiality of the judiciary would be undermined.

Just as there is no blanket prohibition on a part-time commissioner appearing as an attorney on a case in the same court that she/he serves as a commissioner, there is no blanket prohibition on a court manager/administrator serving as a pro tempore judge in the same court. However, as with the previous opinion, it is necessary to examine whether such an arrangement would undermine public confidence in the impartiality of the judiciary. Specific concerns include, but are not limited to, whether the court manager's/administrator's individual duties require regular contact with parties, attorneys, the public, and court records, which may present the perception of improper ex parte communications and create an appearance of impropriety.

Generally, front-line court employees engage with parties and their lawyers and incidentally gain independent information because of the nature of their assigned duties. However, a front-line court employee may be differentiated from a court manager/administrator in some courts. The model job description for a court manager/administrator does not include direct customer contact, courtroom duties, and/or input of information into the Judicial Information System as typical work. The court manager's/administrator's duties do, however, require establishing and maintaining effective working relationships with attorneys, elected and appointed officials, external customers, and court staff. Depending on the size of the court, number of court staff or structure of the staff support unit, court managers/administrators may be required to have regular contact with parties, attorneys, the public, and court records.

The amount and type of contact with parties, attorneys, and the public is a concern due to the potential for an appearance of impropriety when a party, an attorney, or the public sees a person who works for the court discussing aspects of cases with adverse parties, attorneys, or others, and then see that same person adjudicating cases in the courtroom.

Therefore, while there is no blanket prohibition on a court manager/administrator serving as a pro tempore judge, the circumstance may create an appearance of impropriety that undermines the public's confidence in the impartiality of the judiciary. The Presiding Judge and the court manager/administrator should review the court manager's/administrator's duties to determine the potential for a violation. Factors that should be considered in determining a potential violation include, but are not limited to, whether the work conditions of an individual court manager/administrator include regular contact with parties, attorneys, and the public, and regular access to court records.

Opinion 18-01

02/02/2018