State of Washington

Ethics Advisory Committee

Question

May a part-time appellate deputy prosecutor solely responsible for criminal appeals serve as a commissioner pro tem hearing dependency cases?

The deputy prosecutor has an office located on a different floor from the criminal and trial deputies and handles no aspect of criminal prosecution other than appeals. On occasion, the same facts which give rise to dependency proceedings will also be the foundation for a criminal proceeding. Employees of the criminal division of the prosecutor’s office may occasionally be witnesses in dependency cases.

Answer

The Application of the Code of Judicial Conduct provides that a person who has been a pro tempore judge should not act as a lawyer in a proceeding in which the judge has served as judge or in any other proceeding related thereto except as otherwise provided by the Rules of Professional Conduct. Canon 2(A) provides that judges should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity of the judiciary. Canon 2(B) provides that judges should not allow any relationship to influence their judicial conduct or judgment. Canon 3 provides that judicial duties should take precedence over all other activities. Their judicial duties include all the duties of office prescribed by law.

The part-time deputy prosecuting attorney/pro tem judge may preside over cases at which employment as an appellate prosecuting attorney does not compromise the appearance of impartiality by being related to the proceeding or by virtue of that employment relationship. Because the pro tem judge does not work in the trial court or supervise attorneys who do, that person may sit as a pro tem judge.

Also see Opinion 97-12.

Opinion 97-18

12/10/1997