State of Washington

Ethics Advisory Committee

Opinion 20-07

Question:

Our court would like to have local defense attorneys, who are in private practice and appear primarily in superior court, serve as pro tem judges in district court. The attorneys would preside over both civil and criminal matters. Criminal dockets would include: arraignments, criminal review dockets, probation violations, DWS reviews, and changes of plea. The attorneys would not preside over cases for which they or their firms represent/represented a defendant appearing in front of them.

  1. Is there an ethical issue with a local defense attorney serving as a pro tem in this capacity?

  2. Additionally, one of the local defense attorneys also has a contract with the County to represent defendants in one of our district court treatment courts. Does having a contract with the County present an ethical issue for this person to also serve as a pro tem? This person would not pro tem for the treatment court for which she has a contract.

Answer:

The questions posed ask whether there is an ethical problem with having attorneys who regularly appear in or have a contract to represent defendants in superior court to serve as pro tempore judges in the district court in the same county as the superior court.

A pro tempore judge is described in the Code of Judicial Conduct (CJC) as a "person who serves or expects to serve part-time as a judge on a regular or periodic basis in fewer than twelve cases or twelve dockets annually." (Terminology).

  1. Criminal Defense Attorneys Serving as Pro Tempore Judges

There is no blanket prohibition on qualified criminal defense attorneys serving as pro tempore judges. See Opinion 91-23. However, issues related to the specific question presented could lead to potential conflicts and/or disqualifications that effectively diminish the value of the pro tempore judicial appointment.

Determining whether local criminal defense attorneys who primarily appear in front of the superior court could preside as pro tempore judges in the district court in the same county without violating the CJC would depend on a variety of factors. Opinion 09-02 provides some guidance. While Opinion 09-02 addressed the issue of whether a pro tem commissioner may appear as a lawyer in the same court in which the pro tem commissioner serves, the opinion is informative. The opinion presented a non-exhaustive list of factors to consider in determining whether pro tem judicial officers may appear in the same court on which they serve on a pro tem basis, which included: 1) the term of appointment, 2) frequency and nature of service, 3) and the type and nature of cases in which that person will be presiding over and which they are appearing on as an attorney, and 4) the extent to which the pro tempore judge would have communications with judges on the bench about disputed legal issues. Opinion 09-02 gave the example of when a part-time or pro tempore court commissioner should not participate-such as when there is a disputed legal issue similar to one which he or she is likely to hear as a judicial officer because it would call the affected pro tempore court commissioner's impartiality into question.

The district court could control some of the factors outlined in Opinion 09-02 at the time of the judge pro tempore appointment, such as the term, frequency and nature of service, and the extent to which the pro tempore judge would have communications with judges on the bench about disputed legal issues. However, the court cannot foresee the numerous potentially disqualifying legal issues that a criminal defense attorney serving as a pro tempore judge would encounter on any given criminal docket that includes arraignments, criminal review dockets, probation violations, DWS reviews, and changes of plea.

Although there is no blanket prohibition on criminal defense attorneys serving as pro tempore judges in district court, criminal defense attorneys may find it particularly difficult to avoid conflicts as the issues that may call the pro tempore judges' impartiality into question would likely appear in any criminal docket that includes arraignments, criminal reviews, probation violations, DWS reviews, and changes of plea. For example, given the dockets presented, a criminal defense attorney serving as pro tempore judge will likely encounter a case where the disputed legal issue is the same issue the pro tempore judge is involved in as a criminal defense attorney. Criminal defense attorneys, while serving as pro tempore judges on the dockets presented, also may likely encounter participants who they, or a member of their firm, has previously represented or had legal contact with (e.g., victims or witnesses).

A primary objective of the CJC is to promote the public's confidence in the independence, integrity, and impartiality of the judiciary, and to avoid impropriety and the appearance of impropriety. CJC 1.2. Given the question presented, because the criminal defense attorneys are expected to preside as pro tempore judges over matters of the same type in which they practice, there are a number of factors that could affect the public confidence in the impartiality of the judicial officer and project an appearance of impropriety. CJC 1.2. Also, depending on the population of the county, the scenario presented will likely lead to disqualification because the impartiality of the pro tempore judicial officer is reasonably questioned under CJC 2.11. In reviewing the factors outlined above, criminal defense attorneys that routinely practice in a county's superior court should not preside over criminal cases or proceedings in the same county's district court as pro tempore judges as it would undermine public confidence in the impartiality of the judiciary.1

  1. Serving As A Pro Tempore Judge While Having A Contract With The County

There is a prohibition on part-time judicial officers to have a contract with a governmental entity to provide nonjudicial legal services before the same level of court in the same city or county. Opinion 91-17 advised that contracting with a governmental entity on a short-term or long term basis may create an appearance of a conflict of interest and prohibits a part-time judicial officer from contracting with a governmental entity to provide nonjudicial legal services before the same level of court in the same city or county.

The appearance of a conflict of interest is not minimized by the distinction of an attorney serving only as judge pro tempore instead of in a part-time2 capacity. Therefore, a criminal defense attorney that has a contract with the County to represent defendants in the treatment court in the same district court that the attorney is anticipated to serve as a pro tempore judge would undermine public confidence in the impartiality of the judiciary. CJC 1.2.


1  The committee recognizes the potential impact this opinion may have on the current practices of appointing pro tempore judges in some jurisdictions; however, the committee's focus remains on judicial conduct that promotes public confidence in the independence, integrity, and impartiality of the judiciary and that avoids impropriety and the appearance of impropriety.

2  A part-time judge is a "person who serves part-time as a judge on a regular or periodic basis in excess of eleven cases or eleven dockets annually." Terminology.

Opinion 20-07

10/29/2020

 

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