Opinion No. 173 (1994)

1. What is a municipal court judge's ethical obligation upon receiving ex parte phone communications from a criminal defendant concerning a pending case?

2. May a municipal court judge simultaneously serve as city attorney for the same city?

3. May a municipal court judge who is a practicing attorney preside in a case when one of his clients is a party?

ANSWER: Judicial Ethics Opinion 154 (1993) discusses a judge's obligation when receiving ex parte communications in writing. The general considerations discussed there also apply here. It should be noted that Canon 3A(4) and (5) discussed in Opinion 154 have been amended by the new Code effective March 1, 1994. Comparable provisions are now found in Canon 3B(8) of the present Code; however, it should also be noted that Canon 3B(8) does not apply to justice and municipal court judges. See Canon 6C(1)(a). Instead, Canon 6C(2) of the present Code applies to municipal and justice court judges.

Canon 6C(2) provides that a justice or municipal court judge should not consider ex parte communications concerning the merits of a pending judicial proceeding, unless authorized by law or by one of the seven listed exceptions to the rule. Thus, justice and municipal court judges may comply with Canon 6C(2) by doing the following: 1. Upon receiving an ex parte phone call, the judge should inform the caller that ex parte communication is prohibited unless it falls within one of the exceptions of Canon 6C(2). The judge should then converse with the caller in order to determine if the call is a proper ex parte communication allowed by Canon 6C(2) or an improper ex parte communication. If improper, the judge should inform the caller that the communication is improper, that such communication should cease, that the judge will take no action whatsoever in response to the call, and that no improper communication should take place in the future. The call should then be ended.

*All Canon references are to the Code of Judicial Conduct effective March 1, 1994.
Regarding Question No. 2, a municipal court judge should not simultaneously serve as an attorney for the same city. Such action compromises the independence of the judiciary. It violates numerous code provisions including, at least, the following: 1) Canon 1, which requires a judge to uphold the integrity and independence of the judiciary, 2) Canon 2A, which requires a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, 3) Canon 2B, which provides that a judge should not allow any relationship to influence judicial conduct or judgment nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge, 4) Canon 3A, which requires that a judge's judicial duties take precedence over all the judge's other activities, 5) Canon 3B(2), which provides that a judge shall not be swayed by partisan interest, public clamor or fear of criticism, 6) Canon 3B(5), which requires that a judge perform judicial duties without bias, 7) Canon 4D(1), which requires that a judge refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with persons likely to come before the court on which the judge serves, 8) Canon 4I, which provides that a judge may receive compensation if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety, 9) Canon 5(1), which provides that a judge shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which he holds.

Regarding Question 3, a municipal court judge who is a practicing attorney should not preside in a case in which one of his clients is a party. Doing so would violate all of the Canons listed in the previous paragraph. In such a case, the judge should recuse himself. See Judicial Ethics Opinion 172 for further guidance.