State of Washington

Ethics Advisory Committee

Question

A superior court has requested local attorneys to apply for commissioner pro tem positions to assist on the family law docket and in the ex parte department. Commissioners pro tem are compensated by the court. Deputy prosecuting attorneys and assistant attorneys general who work in either the paternity/nonsupport or child support/public assistance area have received permission from their offices to serve as commissioners pro tem if they use their vacation time. The attorneys who have applied would not hear any cases in which their offices have appeared as a party. However, as commissioners pro tem they would serve on family law dockets and in the ex parte department where a significant percentage of the caseload consists of family law cases with minor children.

1. With respect to the ex parte department, does the possibility that a family law case could develop contested child support and/or paternity issues in the future present either a conflict of interest and/or an appearance of fairness which would disqualify these attorneys from signing temporary orders in cases in where there are minor children but neither the state nor the county is currently a party?

2. With respect to the family law calendars, could these attorneys hear and decide temporary orders in family law cases, including setting child support, where neither the state nor the county is currently a party? Does this situation present a conflict of interest and/or appearance of fairness issue?

3. Does the employment of either a deputy prosecutor or an assistant attorney general by the court as a commissioner pro tem present either an ethical or separation of powers issue where the commissioner pro tem is compensated by the court?

Answer

The Application of the Code of Judicial Conduct at section (A) provides in part that anyone who is an officer of a judicial system and who performs judicial duties including a court commissioner is a judge within the meaning of the Code. The Application at section (A)(2) of the Code of Judicial Conduct provides in part that judges pro tem must comply with Canon 2(A) and (B) while they are serving as a judge. 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 relationships to influence their judicial conduct or judgment. Canon 3 provides that judicial duties of judges should take precedence over all other activities; these duties include all the duties of office prescribed by law. Canon 3(B)(1)

provides judges should diligently discharge their administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

1 and 2. With respect to serving on the family law docket or in the ex parte department, either would be appropriate if commissioners pro tem do not hear any cases in which their respective offices have appeared as a party. Even though the attorneys may sit as commissioners pro tem, the superior court needs to monitor the cases over which these commissioners pro tem have presided to determine if they are becoming contested because this could present a conflict of interest.

While serving on the family law docket and in the ex parte department, commissioners pro tem should disclose that they are presently employed by either the attorney general or the prosecuting attorney and that their duties include working in either paternity/nonsupport or child support/public assistance and offer to withdraw. If this practice results in a volume of disqualification which disrupts the administration of justice, the superior court may need to consider whether to remove the names of these individuals as pro tem commissioners.

3. The fact that a pro tem commissioner is a deputy prosecuting attorney or an assistant attorney general does not present by itself an ethical concern. Determination of a separation of powers question is beyond the scope of the committee’s authority. There may, however, be restrictions imposed by either statute or ordinance on the assistant attorney general or deputy prosecuting attorney taking vacation time in order to serve as a pro tem commissioner.

Comment

See Rules of Professional Conduct (RPC) Title 1 for rules relating to the client-lawyer relationship, conflict of interest and imputed disqualification.

Opinion 97-12

07/17/1997