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April 9, 1999

 

Judge Ralph C. Ohm
626 Malvern Avenue
Hot Springs, AR 71901

RE: Advisory Opinion 99-02

Dear Judge Ohm:

Your letter informs the committee that for six years you have served as the civil attorney for Garland County. In this capacity, you handle all civil matters in which Garland County needs representation or advice. In particular, you defend all civil litigation in which Garland County is named as a party, you provide advice and opinions to County employees and elected officials, and you attend all Quorum Court meetings to answer questions by various members of the Quorum Court. Lastly, you assist in drafting some of the ordinances and/or reviewing ordinances on behalf of members of the Quorum Court.

In addition to that on-going position, you have recently been elected to serve as a municipal judge. Ark. Code Ann. '16-17-108 (ww) permits the Quorum Court of Garland County and the Board of Directors of the City of Hot Springs to create two judgeships for the Hot Springs Municipal Court. You ask whether the Code of Judicial Conduct permits you to serve as the Municipal Judge (Division II) and, in your capacity as a private attorney, as the civil attorney for Garland County.

You have also stated that you have entered into an agreement, that you will preside over city cases, and that the other judge (Division 1) will handle all cases involving county ordinance, county officials, the Garland County sheriff=s department, and the Arkansas state police. (We are unable to comment on whether this is a fair or equitable distribution for the workload.)

However, despite your arrangement, the Committee remains troubled by this situation. Canon 1 requires judges to uphold the independence of the judiciary. Threats to your judicial independence are not merely theoretical. For example, the statute sets forth a salary range for  the municipal judge, with the governing bodies of the city and council setting the salary. In theory you might be advising the quorum court on the salary to set for yourself. Conversely, a legislative body upset with your judicial rulings might take action against you in your role as county attorney. Canon 2 requires judges to avoid even the appearance of impropriety. In light of the close relationship necessary between a county attorney and county officials, the status of a judge who is compensated by the county and simultaneously is employed by the county as a private attorney can certainly appear improper in the eye of the public.

We cannot locate any controlling or even helpful authorities. Arkansas Attorney General Opinion 87-469 found no conflict in an Attorney serving as a city attorney and a municipal judge at the same time, but that opinion involved an attorney who was a city attorney in one county and a municipal judge in another county. One treatise emphasizes the danger of a part-time judge maintaining a concurrent law practice; AKeeping the functions of a judge disassociated from those of an attorney requires an abundance of caution.@ Shaman, Lubet and Alfini, Judicial Conduct and Ethics (2nd ed.1995) Section 4.16.

In light of the lack of clear guidance, the proliferation of continuing part-time judges in Arkansas, and your obvious attempts to avoid possible conflicts, we cannot prohibit your holding both positions. However, we conclude that holding such dual roles in the same county is both unwise and imprudent. Our advice would be that you step down as the county attorney. Should you decide to continue in that position, you should be particularly alert to potential conflicts, with the resulting need to recuse as a judge or to refrain from acting as the county attorney in particular matters.

Sincerely,

 

Howard W. Brill

For the Committee

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