State of Washington

Ethics Advisory Committee

Opinion 91-23

Question

  1. Is a pro tem judge expected to comply with the same standards as a part-time judge?

  2. Is a pro tem judge expected to abstain from both partisan and non-partisan political activity?

  3. Is a pro tem judge prohibited from practicing law in the court in which the person is serving as a pro tem judge?

  4. Is the pro tem judge prohibited from engaging in fund-raising activities?

  5. Is the pro tem judge prohibited from serving on government advisory committees, etc?

  6. What is the responsibility of the judge appointing the pro tem judge to verify that the pro tem judge complies with the standards that are set?

  7. Would it make any difference if the order appointing the pro tem is for a limited duration, perhaps a month or two, and the pro tem judge limits his or her activities just in that time period?

Answer

The Preamble to the Code of Judicial Conduct defines judges pro tempore as persons who are appointed to act temporarily as judges. It requires pro tem judges, while acting as such, to comply with the Code of Judicial Conduct except they are not required to comply with Canon 5(C)(2), (C)(3), (D), (E), (F), and (G), and Canon 6(C), i.e.:

Canon 5(C)(2) requires that full-time judicial officers abstain from serving as officers, directors, managers, advisors, or employees of any business.

Canon 5(C)(3) requires that judges manage their investments and other financial interests to minimize the number of cases in which they are disqualified and to divest themselves of investment and other financial interests that might require frequent disqualification, as soon as they can do so without serious financial detriment.

Canon 5(D) prohibits full-time judicial officers from serving as fiduciaries except for members of their families. Canon 5(E) prohibits full-time judges from acting as arbitrators and mediators and Canon 5(F) prohibits full-time judges from practicing law.

Canon 5(G) requires that full-time judicial officers not accept appointment to a governmental committees, commissions, or other positions that are concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.

Canon 6(C) requires full-time judicial officers make financial disclosures as required by law.

In answer to each question asked we respond as follows:

  1. The Preamble to the Code of Judicial Conduct exempts pro tem judges from the same provisions as part-time judges with the addition of Canon 5(C)(3).

  2. A pro tem judge is required to abstain from active participation in both partisan and non-partisan politics only while serving as a pro tem judge.

  3. Except as specifically prohibited by RCW 35.20.200, a pro tem judge may practice law in the court in which the person has or is serving as a pro tem judge. However, both the court and the pro tem judge must avoid conduct which could lead a reasonable person to conclude that the pro tem judge is receiving preferential treatment from the court and/or court staff.

  4. A pro tem judge is prohibited from actively engaging in fund-raising activities only while serving as a pro tem judge.

  5. Unlike a full-time judge, a pro tem judge may serve on governmental committees, commissions, or other positions and is not limited to those concerned only with the improvement of the law, the legal system or the administration of justice.

  6. The appointing judicial officer has no responsibility to monitor a pro tem judge beyond the normal administrative responsibilities required of a judicial officer under CJC Canon 3(B). CJC Canon 3(B)(4) provides that appointments should be made only on the basis of merit. Accordingly, an appointing judge should not reappoint an individual as a pro tem judge if the appointing judge finds or determines that the pro tem judge has failed to comply with ethical standards or demonstrated a lack of competency to perform as a pro tem judge.

  7. Although the Code does not make a specific distinction between a person who sits only occasionally as a pro tem judge and one who sits on a regular basis, one who sits regularly as a pro tem judge should be sensitive to the requirements of CJC Canon 2.

Under the Preamble a pro tem judge is a person appointed to act temporarily as a judge. Persons appointed to serve as full-time judicial officers, even though titled judge pro tem, are subject to the full application of the Code of Judicial Conduct.

NOTE: Effective June 23, 1995, the Supreme Court amended the Code of Judicial Conduct. In addition to reviewing the ethics advisory opinions, the following should be noted:

Amended Opinion 91-23—See the Application section of the new Code and new Canon 2(C). CJC Canon 5(C)(3) became 5(C)(4). CJC Canon 3(B)(4) became 3(B)(3).

The Supreme Court adopted a new Code of Judicial Conduct effective January 1, 2011. In addition to reviewing the ethics advisory opinions, the following should be noted:

CJC Application II Part-Time Judges
CJC Application III Judge Pro Tempore
CJC Terminology Section “Part-time judge”
CJC Terminology Section “Pro tempore judge”

Opinion 91-23

10/29/1991

Amended 12/17/1991

 
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