|
March
14, 2002
Doug Norwood
Attorney at Law
P. O. Box 2044
Rogers, AR 72757-2044
RE: Advisory
Opinion 2002-04
Dear Mr.
Norwood:
In your
letter of March 5, 2002, you tell us that Mr. Rodney Owens has
asked you to serve in his stead as City Judge of Centerton,
Arkansas, while criminal charges are pending against him. You
ask this Committee whether you may, in light of our Advisory
Opinion No. 98-02, simultaneously sit as City Judge and preside
over criminal cases brought by the Office of the Prosecuting
Attorney while you are also representing defendants in other
courts in the same county. You also ask whether the Prosecuting
Attorney may waive any conflict.
While we
recognize the exigency of the circumstances outlined in your
letter, we find nothing in the Code of Judicial Conduct or relevant
case law distinguishing continuing part-time judges from part-time
judges serving temporarily, albeit indefinitely. Nor do we believe
the appearance of impropriety may be cured by waiver.
Advisory
Opinion No. 98-02 notes that the concurrent practice of law
and judicial service are prohibited under Canon 4G, but that
exception is made for continuing part-time judges under Section
B of the Application section of the Code. We pointed out that
while the Code stops short of an outright ban on the practice
of law by part-time judges, clearly restraint and caution are
called for. In that context, we cited Canon 2 and concluded:
[A]n individual
who accepts the position of a continuing part-time judge places
the judicial office first in service and priority, and certain
restrictions must follow. It is, we believe, self evident that
a municipal judge who is engaged in an adversarial role opposing
a prosecuting attorney in a criminal case brought by the State
and who presides over proceedings involving that same prosecuting
attorney is in an untenable position, however principled that
individual may be. Acting as both judge and jury, the municipal
judge has significant discretion in dealing with the prosecuting
attorney. To oppose that same attorney in another matter creates
an appearance of impropriety.
We conclude,
as have a majority of other jurisdictions, that license must
yield to ethic, where, in the perception of reasonable minds,
the ability of municipal judges to carry out their responsibilities
with integrity, competence and impartiality could be impaired.
It follows that the initial responsibility rests on the municipal
judge to decline the personal representation of a criminal defendant
in any circuit within which the prosecuting attorney has jurisdiction.
Yours very truly,
Steele Hays
For the Committee
|
