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An Ethics Guide for Part-Time Lawyer Judges

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An Ethics Guide for Part-Time Lawyer Judges INTRODUCTION ETHICAL STANDARDS FOR judge is a retired judge who has agreed JUDGES to serve on assignment when needed. Because part-time judges exercise on In order to have confidence in the a part-time or temporary basis the same decisions handed down by the justice judicial power as full-time judges, the system, the public must have confi- actions of a part-time judge also affect dence in the integrity, impartiality, and the public’s confidence in the judicial independence of individual judges. To system. Therefore, part-time judges are promote adherence to high standards by required to adhere to most of the same judges, every state has adopted a code of ethical standards as full-time judges, judicial conduct that is enforced by particularly while they are sitting as each state’s judicial conduct organiza- judges. tion and supreme court with sanctions In all states but Montana, the code of ranging from a private advisory letter to judicial conduct is based on the 1990 removal. American Bar Association Model Code Although most judges serve full time, of Judicial Conduct or its predecessor, many courts rely on part-time judges if the 1972 model code. (The code in the caseload in a locality is more than Montana is based on the 1972 American the full-time judges can handle but not Bar Association Canons of Judicial enough to justify another full-time Ethics.) The general standards of both position. Moreover, most states rely on the 1990 model code and the 1972 code temporary judges from time-to-time to are very similar. clear up a backlog; in the interim be- Under the 1990 model code, full-time tween a judge’s resignation, retirement, judges and part-time judges are re- or death and election or appointment of quired: a replacement; to preside in a case from • to avoid the appearance of impropri- which the assigned judge is disqualified; ety (Canon 2); or to fill short vacancies created by medical leave, military service, jury • to respect and comply with the law duty, disciplinary action, vacation, or (Canon 2A); other absences. Often the temporary American Judicature Society 1 • • to give precedence to judicial duties • to require staff, court officials, and over all other activities (Canon 3A); others subject to the judge’s direction and control to refrain from manifest- • to be faithful to the law and maintain ing bias or prejudice in the perfor- professional competence in it (Canon mance of their official duties (Canon 3B); 3C(2)); and • to be ‘‘patient, dignified and courte- • to inform the appropriate authority if ous to litigants, jurors, witnesses, the judge has knowledge that another lawyers and others with whom they judge has committed a violation of deal in an official capacity…’’ (Canon the code that raises a substantial 3B(4)); question as to the other judge’s fit- • to perform judicial duties without ness for office or that a lawyer has bias or prejudice, including but not committed a violation of the rules of limited to bias or prejudice based professional conduct that raises a upon race, sex, religion, national substantial question as to the law- origin, disability, age, sexual orienta- yer’s honesty, trustworthiness, or tion, or socioeconomic status (Canon fitness (Canon 3D). 3B(5)); Like full-time judges, part-time judges are prohibited from: • to diligently discharge administrative responsibilities without bias or preju- • ‘‘commend[ing] or criticiz[ing] jurors dice (Canon 3C(1)); for their verdicts other than in a court order or in a proceeding’’ (Canon • to maintain professional competence 3B(10)); in judicial administration (Canon 3C(1)); • initiating or considering ‘‘ex parte or other communications concerning a • to cooperate with other judges and pending or impending proceeding’’ court officials in the administration (Canon 3B(7)); of court business (Canon 3C(1)); • making unnecessary appointments • to require staff, court officials, and (Canon 3C(4)); others subject to the judge’s direction and control to observe the standards • exercising the power of appointment of fidelity and diligence that apply to partially or on a basis other than the judge (Canon 3C(2)); merit (Canon 3C(4)); • 2 An Ethics Guide for Part-Time Lawyer Judges • engaging in nepotism or favoritism • if the judge knows that the judge’s (Canon 3C(4)); and spouse, parent, or child wherever residing or any member of the judge’s • approving compensation of appoin- family residing in the judge’s house- tees beyond the fair value of services hold has an economic interest in the rendered (Canon 3C(4)). subject matter in controversy or in a Under the 1990 model code, disqualifi- party to the proceeding (Canon cation of both full-time judges and part- 3E(1)(c)); and time judges is required: • if the judge, the judge’s spouse, or a • if the judge has a personal bias or person within the third degree of prejudice concerning a party or a relationship to either of them, or the party’s lawyer (Canon 3E(1)(a)); spouse of such a person, is a party to • if the judge has personal knowledge of the proceeding; is an officer, director, disputed evidentiary facts concerning or trustee of a party; is acting as a the proceeding (Canon 3E(1)(a)); lawyer in the proceeding; is, to the judge’s knowledge, likely to be a • if the judge served as a lawyer in the material witness in the proceeding; or matter in controversy (Canon is known by the judge to have a more 3E(1)(b)); than de minimis interest that could be substantially affected by the pro- • if a lawyer with whom the judge ceeding (Canon 3E(1)(d)). previously practiced law served dur- ing such association as a lawyer A comprehensive discussion of all the concerning the matter (Canon ethical standards applicable to both full- 3E(1)(b)); time and part-time judges is beyond the scope of this Guide, but other resources • if the judge has been a material wit- are available. See, e.g., Gray, ‘‘Ethical ness concerning the matter (Canon Standards for Judges,’’ in Handbook for 3E(1)(b)); Judicial Conduct Commissions (AJS 1999); Shaman, Lubet, and Alfini, Judi- • if the judge knows that he or she, cial Conduct and Ethics (Michie 1995). individually or as fiduciary, has an economic interest in the subject matter in controversy or in a party to the proceeding (Canon 3E(1)(c)); American Judicature Society 3 • DEFINING WHO IS A PART- If all of the following questions are TIME JUDGE answered in the affirmative, a judge is a part-time judge: 1. Does he serve on a continuing or Judicial officers who serve less than periodic basis? For example, if a full time or only temporarily are called judge serves one-half of each work- judges in some states but may also be ing day, or if he serves every Mon- day, the answer is ‘‘Yes.’’ called, depending on the state, hearing officers, commissioners, magistrates, 2. Is he permitted by law to devote time to some other profession or referees, masters, fact finders, arbitra- occupation? The answer to this tors, pro tempore judges, pro tem judges question will be found in the stat- (an abbreviated form of pro tempore utes or the common law of the judges), special judges, acting judges, jurisdiction in which he serves. senior judges, ad hoc judges, recall 3. Is the judge’s compensation less judges, substitute judges, or reserve than that of a full-time judge at the same jurisdictional level? If a judge judges. is paid on a full-time basis but Three factors determine whether a works only part-time because the judge is a full-time judge or a part-time docket in his court is up to date, he judge: how often the judge serves, is a full-time judge . whether he or she is allowed to devote Thode, Reporter’s Notes to [1972] Code time to another occupation, and how of Judicial Conduct at 101 (ABA 1973). much he or she is paid. What is your title? How often do you serve? Are you per- mitted by law to devote time to some other profession or occupation? Is your compensation less than that of a full- time judge at the same jurisdictional level? • 4 An Ethics Guide for Part-Time Lawyer Judges The differences among the states in • Periodic part-time judges. how their courts are organized are compounded for part-time service. The • Pro tempore part-time judges. 1972 American Bar Association Model A retired judge subject to recall who Code of Judicial Conduct had three by law is not permitted to practice law categories of judges who served less is not specifically defined by the model than full-time: part-time judges (those code, but is a judge who has retired and who serve on a continuing or periodic has, through whatever system is used in basis, but are permitted by law to de- the state, made himself or herself avail- vote time to some other profession or able for temporary or part-time assign- occupation and whose compensation for ments as needed by the judiciary. They that reason is less than that of a full- are called senior judges in many states. time judge); judges pro tempore (those A continuing part-time judge is de- who are appointed to act temporarily as fined as ‘‘a judge who serves repeatedly a judge); and retired judges who receive on a part-time basis by election or the same compensation as full-time under a continuing appointment, in- judges and are eligible for recall to cluding a retired judge subject to recall judicial service.
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