State of Washington

Ethics Advisory Committee

Question

1. In regard to Opinion 03-14, if a private attorney agrees to serve as a judge pro tempore or as a court commissioner to handle the civil motion calendar on an ad hoc basis, does this mean that the attorney may not appear before the bench on which he or she served when he or she is representing clients in civil matters?

2. In regard to Opinion 03-14, if a private attorney is employed by the court as a juvenile court commissioner and occasionally is requested to handle the civil motion calendar when the judge cannot get to the remote county because of bad weather, does this mean that the private attorney may not appear before the bench on which he or she served when he or she is representing clients in civil matters?

3. If the answer to question No. 1 and No. 2 is no, is the judge required to disclose on the record the fact that the private attorney served in these capacities when the private attorney does not routinely serve in these capacities?

   The superior court serves two counties, one that is accessible only by plane or by ferry system. During bad weather, the judge may not be able to get to the remote county before the motion calendar begins and occasionally asks the part-time juvenile court commissioner to begin the civil motion calendar until the judge arrives. The part-time juvenile court commissioner has an extensive private civil practice and would not be able to continue to handle the civil motion calendar if it meant that the judges in the superior court could not hear his civil matters. He is regularly employed as a part-time juvenile court commissioner but handles the civil motion calendar only on an ad hoc basis as noted above.

   In the other county, served by the same superior court, numerous private attorneys on an ad hoc basis serve as judges pro tem or as court commissioners to handle the civil motion calendar when the part-time commissioner is not available. It is difficult to find judges pro tem or court commissioners to fill in for the judges, and it will be impossible if private attorneys can’t have their civil matters heard because they occasionally serve as a judge pro tempore or as a court commissioner on the civil motion calendar. Neither county has funds to hire a full time court commissioner.

   Further, requiring on the record disclosures in these situations would pose a significant burden on the judges since the list of private attorneys serving in these capacities is long and on the record disclosures would significantly lengthen already over-burdened calendars.

Answer

Opinion 03-14 addressed part-time court commissioners and opined that they 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. This opinion is limited to part-time court commissioners.

The Terminology Section of the Code of Judicial Conduct defines a part-time judicial officer as those “who serve on a continuing or periodic basis”. A pro tempore judicial officer is defined as “persons who are appointed to act temporarily” as judicial officers. CJC Canon 2(A) provides in part that judges should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) provides in part that judges should not allow a social or other relationship to influence their judicial conduct or judgment. Judges should not permit others to convey the impression that they are in a special position to influence them.

1. A private attorney who agrees to serve as a judge pro tempore or as court commissioner to handle the civil calendar motion calendar on an ad hoc basis is not prohibited from appearing before the bench on which he or she served when he or she is presenting clients in civil matters. This situation is distinguishable from that outlined in Opinion 03-14 because the attorney was appointed to act temporarily as a judge and does not serve on a continuing or periodic basis. Because the appointment is of a temporary nature it does not undermine the public confidence in the integrity and impartiality of the judiciary for attorneys to practice law on the same kinds of cases where they serve on a temporary or ad hoc basis.

2. A private attorney who is employed as a part-time juvenile court commissioner may not appear in superior court on any juvenile matters. The fact that the attorney is occasionally asked to handle the civil motion calendar only does not preclude the attorney from appearing before the bench on civil matters. Again, because the part-time juvenile court commissioner appears on limited occasions to handle the civil motion calendar only it does not undermine the public confidence in the integrity and impartiality of the judiciary for the attorney to practice before the bench for which he or she on limited occasions handles the civil motion calendar.

3. The Code of Judicial Conduct does not require that the judge disclose on the record that the private attorney has served as a pro tempore judge on limited occasions when the private attorney does not routinely serve in these capacities. The judicial officer should make the disclosure if there are circumstances which would cause a reasonable person to feel the disclosure would be relevant.

Opinion 03-16

11/19/2003

Amended 01/21/2003