Thursday, June 2, 2011
From the South Carolina Judicial Ethics Advisory Committee:
OPINION NO. 5- 2011
RE: Propriety of an attorney serving as part-time municipal court judge when attorney’s law partner serves as the city attorney.
An attorney has recently been appointed as a part-time municipal judge. The attorney/judge’s law partner serves as the city attorney. The judge has recently read Bar Ethics Op. No. 1994-02, which indicated service in this situation may not be proper. However, the judge’s situations differs in some respects from the situation in Ethics Op. No. 1994-02,and thus, the judge requests an opinion from this Committee. The judge will not act in the capacity of municipal judge until an opinion is rendered on the propriety of such service.
The judge’s law partner is the city attorney. The city attorney attends city council meetings, reviews and drafts legal documents, contracts and deeds, and advises city council and the city administrator. The city attorney does not advise the police or departmental employees on matters that may come before the municipal court. The city attorney also does not advise the City regarding ordinances that come before the municipal court, as those cases are handled by the city solicitor.
The part-time municipal judge should not serve where the judge’s law partner is the city attorney.
South Carolina Bar Ethics Opinion 1994-02 found that a part-time judge could not also serve as a part-time city attorney; that Opinion also found that a member of a part-time city judge’s law firm should not serve as the part-time city attorney, even in the part-time city attorney did not prosecute matters in city court. That Opinion found that Canon 2, which directs a judge to promote confidence in the judiciary’s integrity and impartiality, would prevent a part-time judge from serving while the judge simultaneously had an attorney-client relationship with the city. The Opinion also concluded that the part-time judge’s disqualifications would be imputed to his law partners under Rule 1.10 of the Code of Professional Conduct. That Opinion did note that Rule 1.10 did not specifically address disqualification in the context of a part-time judge.
While this Committee has also concluded that a part-time municipal judge cannot also serve as a part-time city attorney (in the same municipality), we have not addressed the issue presented here and considered in Bar Ethics Opinion 1994-02. Opinion 1994-02 placed great weight on the responsibilities of a city attorney, noting that:
...the actual responsibilities of the city attorney require scrutiny. For example, the limited jurisdiction of the municipal court includes trying “all cases arising under the ordinances of the municipality.” S.C.C. 14-25-45. City attorney duties may include drafting these ordinances or advising on policies in reference to their enforcement; the city judge must then rule on the same ordinances from the bench. The weight of these ethical considerations preclude holding both positions on a part-time basis.
The judge here states that the part-time city attorney does not advise the police or departmental employees on matters that may come before the municipal court, nor does the city attorney does advise the City regarding ordinances that come before the municipal court. However, the judge does state that the city attorney drafts legal documents, contracts and deeds, and advises city council and the city administrator. Some of the legal documents drafted by the city attorney could then be the subject of matters that come before the municipal judge. Because the judge and the city attorney are law partners, this would create the appearance of impropriety and could cause the public to question the impartiality of the judiciary. Thus, the part-time judge should not serve under these circumstances.