State of Washington

Ethics Advisory Committee

Question

May an incumbent judge hear a case where the defendant is frequently represented by a public defender who is running for election against the judge? If the answer is yes with disclosure on the record, is the procedure sufficient under the circumstances?

The judge is the only court of limited jurisdiction judicial officer in the county. The judge is involved in a contested election with the attorney, who along with another attorney, was awarded a three-year contract for public defender services in the county starting at the beginning of this year. The public defenders alternate their appearances by the week in the judge’s court, although both attorneys will at different times appear on the same case.

The judge has decided to engage all public defender clients in a colloquy on the record confirming with the defendant that they have discussed with their attorney the situation (that one of the public defenders is opposing the sitting judge’s election), telling them that the judge believes that the judge can be fair and impartial in their case and ask them to confirm whether they are willing to proceed with the judge hearing the case. The judge has informed the public defender/judicial candidate that the primary concern of the judicial office will be the defendant’s statement on the record that he or she is willing to proceed. The judicial officer will not inquire into the adequacy of the disclosure to the clients.

Answer

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. CJC Canon 3(A)(5) provides that judges should perform their adjudicative responsibilities without bias or prejudice. CJC Canon 3(D) provides in part that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

A judge may hear a case where the defendant is frequently represented by a public defender who is running for election against the judge. In order to hear the case the judge must disclose to the defendant on the record that the judge and the public defender/judicial candidate are involved in a contested election and the judge should offer to withdraw.

Comment

The attorney/judicial candidate is required to comply with RPC 1.17 to ensure there is no conflict of interest between the client and the lawyer’s own interest.

Opinion 02-21

10/04/2002