OPINION 429
December 1985

Question Presented

May a practicing attorney, who is also a part-time associate city judge, represent a person accused of a crime where the police in that city are or may be potential witnesses in the trial of the case?

Discussion

In considering the question, it is assumed that the attorney who is also a part-time associate city judge, has not acted in a judicial capacity in connection with the matter. If he has acted on the matter in a judicial capacity, he is clearly disqualified under Disciplinary Rule (DR) 9-101(A) which provides that "A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."

The more difficult question is whether he is disqualified when he has acted in a matter in his position as judge.

The question presented was the subject of pre-code Opinion 116 (September 1955), based on old Canon 33. That opinion held that it would violate the Canons of Ethics for a member of a law firm, of which a city judge was a member, to represent defendants in a criminal action in another court where the arresting officers are city policemen.

Similar results were reached in prior opinions as to whether it was improper for a justice of the peace to defend criminal cases. In one opinion, the committee found that it was improper or at least "unwise" for a justice of the peace to defend criminal cases in any court regardless of where the case originated. (Opinion 125, March 1956). In an earlier opinion, the committee concluded that a justice of the peace, who is a lawyer, could practice criminal law in Superior Courts, or in any county outside his own county, but said "It would be highly preferable for said justice of the peace to refrain from such practice even though there is no statute or canon which expressly prohibits him from doing so." (Opinion 16, December 1948).

Guidance for the answer to the question presented is found in Canon 5, which states that "A lawyer should exercise independent professional judgment on behalf of a client," Canon 8, which states that "A lawyer should assist in improving the legal system" and Canon 9, which states "A lawyer should avoid even the appearance of professional impropriety."

Disciplinary Rule 5-105 requires a lawyer to decline employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. The part-time city judge must maintain a neutral role as a city judge when city policemen testify in municipal court. In representing a criminal defendant, he is likely to be in an adversary role with these same policemen. His independent professional judgment in behalf of his private client could be adversely affected.

Although Ethical Considerations are not binding on a lawyer, EC 5-1 reminds us that the professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. EC 5-1 further states that neither the personal interest of the lawyer, the interests of other clients, nor the desires of third persons, should be permitted to dilute his loyalty to his client. The possibility of compromising influences is so great that a part-time city judge should refuse employment in cases in which policemen of his city are involved as witnesses.

As recognized in the prior opinions, the representation of criminal defendants by a lawyer who is also serving as a judge leads to an appearance of impropriety. Public confidence in law and lawyers could be eroded because the conduct of a lawyer in the dual role of judge and criminal defense attorney may appear to laymen to be unethical.

Conclusion

A practicing attorney who is also a part-time associate city judge should not represent a person accused of a crime where the police in that city are or may be potential witnesses. (9-0)