State of Washington

Ethics Advisory Committee

Question

May an attorney be appointed to serve as a judge pro tem on all district and municipal court infraction and criminal cases when employed by the legal department of a city within the judicial district?

May an attorney be appointed to serve as a judge pro tem on the district court civil (non-criminal and non-traffic) docket when employed by the legal department of a city within the judicial district?

May an attorney serve as a judge pro tem for another city’s municipal court presiding over the infraction and criminal dockets?

An attorney is being considered for appointment as a district and municipal court judge pro tem to serve on all dockets, including: district court civil and small claims dockets, the county district court infraction and criminal dockets and the city municipal court infraction and criminal dockets.

The attorney is employed by a city’s legal department. The city is a separate municipal corporation in the county; it does not operate its own municipal court. It contracts with the county regarding some services, including law enforcement, criminal prosecution and defense, infractions and misdemeanor crimes charged within the city boundaries. The city municipal court processes cases related to that city which is a separate municipal corporation, which is not related to the city employing the attorney.

One of the responsibilities of the applicant attorney is to administer the contracts between the municipal employer and the county district court, the county prosecuting attorney and the county public defender.

Neither the applicant attorney, nor anyone else employed by the municipal legal department, has the right to control the prosecuting of criminal or infraction cases. The revenues from these cases are paid to the municipality employing the attorney. The applicant attorney has direct supervision over the contract negotiations regarding the expenses assigned to the municipality, by the county, associated with the district court clerk’s office, the prosecutor’s office and the public defender’s office.

Civil cases are solely the responsibility of the county district court.

Answer

The Application of the Code of Judicial Conduct specifically set out the provisions with which a pro tem judge is not required to comply. CJC Canons 2(A) and Canon 3 are not among the exempted provisions. A judge appointing a pro tem judge is also required to comply with Canon 3(B).
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 generally requires judges to perform judicial duties impartially and diligently. Canon 3(B) provides in pertinent part that judges discharge their administrative duties diligently, that they require court officials over whom they have control to observe the same standards of fidelity and diligence that apply to them and that they exercise the power of appointment only on the basis of merit.

Opinion 92-3 opines in relevant part that a judge is not prohibited from appointing a deputy prosecuting attorney as a pro tem judge. The pro tem judge should disclose to the parties the attorney’s employment if a reasonable person would conclude it is relevant to the issue of disqualification and the deputy prosecuting attorney should not be appointed to hear any cases in which an attorney from the prosecutor’s office is or may be involved.

An attorney applicant may not be appointed to preside over matters in which the attorney’s municipal employer is a named party, regardless of the contractual arrangement which gives the prosecutorial function to another municipal entity. The employer’s interest creates an appearance of impropriety, which is prohibited by CJC Canon 2(A).

An attorney may be appointed to serve as a judge pro tem for another city’s municipal court presiding over the civil, infraction and criminal dockets, which do not involve the attorney’s employer as a named party or as an entity with a financial stake in the case. The attorney/pro tem judge, however, should disclose the attorney’s employment if a reasonable person would conclude it is relevant to the issue of disqualification.

Opinion 06-10

12/05/2006