Opinion 2181

I. QUESTION PRESENTED

This inquiry concerns an Assistant City Attorney who is considering serving as a judge pro tempore (footnote 1) in the County District Court’s Mental Health Court (“CD MHC”). The CD MHC is a “collaborative” court in which the prosecution and defense work together to find the best outcome for criminal cases involving the mentally ill. The Municipal Court has its own mental health court (“MC MHC”), which is entirely separate from the county court system, except that both contract with the same public defender agency and occasionally a defendant will have cases in both courts. As part of his duties, the attorney supervises prosecutions in the MC MHC and he has asked the WSBA for an informal opinion as to possible conflicts if he decides to serve as a pro tem judge in the CD MHC.

II. SUGGESTED RESPONSE

The Committee is of the opinion that Formal Opinion # 160, issued in 1975, is still applicable and addresses the issue you raise. Nothing in the Rules of Professional Conduct, which controls your functions as an assistant city attorney, bars your service as a part-time judge in an unrelated jurisdiction. As a part-time judicial officer, you may wish to consult the Judicial Ethics Advisory Committee of the Washington State Supreme Court through the Office of Administrator to the Court in Olympia regarding the Code of Judicial Conduct implications of your dual role.

III. ANALYSIS

a. Applicable Rules

Washington law provides that a district court judge shall not act as a judge in a case in which the judge “is directly interested, or in which the judge has been an attorney for a party.” RCW 3.34.110. (footnote 2) The Washington Rules of Professional Conduct (“RPCs”) prevent a lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer (including pro tempore and part-time judges) unless all parties to the proceeding give written informed consent. RPC 1.12(a); comment 1. The RPCs also prohibit a lawyer from representing a client if the representation involves a concurrent conflict of interest. RPC 1.7 and 1.8. (footnote 3) Further, the RPCs prohibit a lawyer from representing a client if it involves a conflict of interest with a former client in the same or substantially related matter. RPC 1.9.

The Washington Code of Judicial Conduct (CJC) provides that Judges should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” CJC Canon 2(A). Accordingly, full-time judges may not practice law. CJC Canon 5(F). However, pro tempore judges are permitted to practice. See Application of the CJC (A)(2)(a)(ii) (“pro tempore judges are not required to comply with… [several sections including] 5 (F).”). Nonetheless, “a person who has been a pro tempore judge should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by the Rules of Professional Conduct.” Id. at (A)(2)(b).

b. Ethics Opinions

The sole WSBA Formal Opinion on this topic, #160 (1975), states:

Inquiry has been made whether a part-time district court judge or commissioner may practice in the court on which he or she serves.

In its Code of Judicial Conduct, the American Bar Association has taken the position that a part-time judge (and a commissioner is a judge for purposes of the Code) "should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in a proceeding in which he has served as judge or in any other proceeding related thereto." Compliance with the Code of Judicial Conduct, Section A (2). The Washington State Supreme Court has taken a less restrictive view. In adopting a slightly amended version of the ABA Code, it provided only that a part-time judge "should not act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto." Preamble, Section 1 (A) (2), 83 Wn. 2d 1101 (1973).

Accordingly, a part-time district court judge or commissioner in the State of Washington may practice in the court on which he or she serves, except in those proceedings in which he or she has participated as judge or commissioner or in related proceedings. Such practice is, it should be observed, not without its difficulties. In particular, there is the possibility that a judge or commissioner may, in practice, appear to seek or to receive special deference from colleagues on the bench. Every effort should be made to avoid such an appearance.” See RPC 1.11.

The RPC Committee (RPCC) has said that Formal Opinion # 160 is still applicable to questions concerning a Washington lawyer serving as a part-time judge. See Informal Opinion #1333 (1990). The RPCC has issued several additional Informal Opinions on this topic. In general, the RPCC has opined that the attorney’s role as a judge is outside of its purview. See e.g. Informal Opinion #1881. Since the issue involves judicial conduct, the RPCC has stated that the applicable rules are the CJCs and inquiry should be directed to the Judicial Ethics Advisory Committee. Id.

For example, a city attorney who also acted as a contract public defender in the same jurisdiction and who also acted as a judge pro tem in the district court was not barred from continuing to serve as a city attorney as long as long as the attorney complied with RPC 1.8 and 1.9. Id. In another inquiry, a part time municipal court judge could also be employed as a deputy prosecutor in a county prosecuting attorney’s office, prosecuting criminal cases in the superior court of the county in which the municipality was located. Informal Opinion #1880 (1999). In that opinion, the RPCC stated that “nothing in the Rules of Professional Conduct, which controls your functions as a county deputy prosecutor, bars your service as a part time judge in an unrelated jurisdiction.” Id. Additionally, a trial attorney for the U.S. Department of Justice was allowed to serve as a judge pro tem in municipal court. Informal Opinion #1429 (1991). Finally, in response to an inquiry from a court commissioner hearing juvenile and family cases in superior court and also practicing before the same court in other areas of practice, the RPCC opined that nothing in the RPCs barred the practice, so long as the attorney advised his clients of his role so that they would not be misled into believing that their case would receive any preferential treatment. Informal Opinion #1333 (1990).

c. Discussion

In this inquiry, the lawyer has provided the RPCC with two supporting documents, in addition to the relevant WSBA opinions: (1) a copy of a memorandum he sent to the City Ethics Commission (CEC) detailing his background and specific questions, and (2) a copy of a response from the CEC to an earlier similar inquiry. In the earlier response, the CEC stated that the City Code of Ethics did not prohibit an Assistant City Attorney from sitting as a judge pro tem in County District Court, so long as the employee “does not hear cases that involve judging participants with whom the employee must work as a City Attorney” and “does not use City time or facilities for that purpose.” In the memorandum, the lawyer asked whether the earlier opinion applied to his current plans to serve as a pro tem judge on the CD MHC and specifically whether the CEC would require him to recuse himself in certain situations. For instance, he is concerned with cases dealing with defendants who had previously been prosecuted in the city court, cases in which city personnel were involved, and cases involving expert testimony by state hospital staff with whom the lawyer has worked and trained with in the past.

Nothing in the Washington RPCs or CJCs specifically addresses the questions in this inquiry. In general, however, the lawyer is prohibited from representing a client where a conflict of interest is present or may arise. Additionally, as a judge, he would have to continue to “act in a manner which promotes the public confidence in the integrity and impartiality of the judiciary.” Furthermore, if he were to ever become a full-time judge, he would likely be required to stop practicing law. Finally, the lawyer’s particular questions about when he should recuse himself clearly involve judicial conduct and should be directed to the Judicial Ethics Advisory Committee.

IV. CONCLUSION

In conclusion, nothing in the RPCs prohibits an assistant city attorney from serving as a pro tempore judge in a county district court’s mental health court, so long as the attorney abides by conflict of interest rules when applicable. However, this response does not comment on whether the attorney’s service as a judge would violate the CJCs in any particular circumstance and the attorney should be encouraged to consult with the Judicial Ethics Advisory Committee.

[footnote 1: For the purposes of this memo, the terms “pro tempore”, “pro tem”, and “part-time” will be used interchangeably. See Black’s Law Dictionary, p. 1239 (7th ed. 1999).]

[footnote 2: See also RCW 3.34.130 (qualifications for a judge pro tempore shall be the same as for a district judge).]

[footnote 3: A concurrent conflict exists if: (1) the representation will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client. RPC Rule 1.7.]