Opinion No. 132 (1989)*

FACTS ASSUMED: In the county in question municipal court judges act as magistrate in most criminal cases in which defendants are arrested. Those judges consider affidavits for, and they issue, both search and arrest warrants. They also arraign defendants, and they set bonds.

QUESTION 1: May a relief judge for a municipal court represent, or practice law with a lawyer who represents, a defendant in a county court or district court case in which a magistrate who is another judge of the same municipal court took some action?

QUESTION 2: May such a part-time judge represent, or practice law with a lawyer who represents, an accused in a criminal case that has not been considered by another municipal court judge?

QUESTION 3: May a municipal court judge continue to serve in that position if the judge's lawyer spouse represents defendants mentioned in Questions 1 and 2?

ANSWER: The answer to Question 1 is No. The provision of Canon 8D(1)(d) that a municipal court judge may practice law except in the court on which the judge serves or "in a proceeding in which he or she has served as a judge or in any proceeding in related thereto," does not expressly prohibit a municipal court judge from representing clients in criminal cases which other judges of the same court have considered. However, the Committee concludes that such representation would be inconsistent with Canon 5C(1), which provides that a judge should refrain from financial and business dealings that (1) tend to reflect adversely on the judge's impartiality, (2) interfere with the proper performance of judicial duties, (3) exploit his or her judicial position, or (4) involve the judge in frequent transactions with lawyers or person likely to come before the court on which he or she serves.

The Committee believes that in this context the words "financial and business dealings" include the practice of law. A part-time municipal court judge would at least give the appearance of disregarding all four parts of Canon 5C(1) if the judge's law practice includes clients whose cases were considered by other judges on the same court.

In response to Question 2 the Committee concludes that the Code of Judicial Conduct does not prohibit a part-time municipal court judge from representing an accused in a criminal case if such representation does not violate Canon 5C(1).

The answers to Question 3 correspond to the answers to Questions 1 and 2. The judge's financial interest in the income from the spouse's representation of clients who appear before other judges of the same court would be inconsistent with the provisions of Canon 5C(1). The judge would not necessarily violate that Canon if the judge's spouse represents defendants whose cases are not considered by other municipal court magistrates.


*Canon 5C(1) was amended effective December 19, 1989; Canon 8D was amended effective September 1, 1990.