Formal Advisory Opinion No. 86-2

State Bar of Georgia
Issued by the Supreme Court of Georgia
On August 23, 1989
Formal Advisory Opinion No. 86-2

The adoption of the Georgia Rules of Professional Conduct does not require a change in this opinion, which is based on the Code of Judicial Conduct and Georgia law.  However, the Code of Judicial Conduct and Georgia law may have been revised since this opinion was issued.

For an explanation regarding the addition of headnotes to the opinion, click here.

QUESTION PRESENTED:

Ethical propriety of a part-time judge also serving as a criminal defense counsel.

OPINION:

The Supreme Court of Georgia approves, as amended, Proposed Formal Advisory Opinion No. 86-2 requesting an Advisory Opinion as to the ethical propriety of a part-time judge serving in a judicial capacity while also serving as a criminal defense counsel.

Georgia law authorizes part-time Judges to practice law, subject to certain restrictions. OCGA § 15-7-21 provides that part-time State Court Judges may engage in the private practice of law in other courts, but prohibits practice in the Judge's own court or appearances in any matter as to which the Judge has exercised any jurisdiction. OCGA § 15-10-22 (b) provides that Magistrates who are attorneys may practice in other courts, but not in their own courts, nor may they appear in any matter as to which their court has exercised any jurisdiction.

In addition, the Compliance section of the Code of Judicial Conduct states:

A. Part-time Judges. A part-time judge is a judge who serves on a continuing or periodic basis, but who is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge.

Part-time judges:
. . . . .

(2) should not practice law in the court on which they serve or in any court subject to the appellate jurisdiction of the courts on which they serve, or act as lawyers in proceedings in which they have served as judges or in any other proceeding related thereto.

From this, it is clear that both the statutes and the Canons authorize the practice of law by part-time Judges and spell out the restrictions on such practice. For that reason, representation of a defendant in a criminal case by a part-time judge cannot be said to be per se inappropriate or unethical.

At the same time, Canon 2 admonishes that:

Judges should avoid impropriety and the appearance of impropriety in all their activities.

For that reason, although such representation is not in and of itself inappropriate, the regular or exclusive representation of such defendants by a Judge whose responsibilities include the issuance of criminal warrants or the trial of criminal cases might destroy the appearance of impartiality and integrity essential to the administration of justice and, therefore, be inappropriate.

In reaching this conclusion, we have been aware of the holding in Ga. Dept. of Human Resources v. Sistrunk, et al., 249 Ga. 543 (291 SE2d 524) (1982); however, in Hudson v. State , 250 Ga. 479 (299 SE2d 531) (1983), this Court declined to adopt a rule which would require disqualification of any part-time Judge serving as an attorney in a criminal defense action. As Judge Gregory stated at Page 482 of the Hudson opinion:

Further, we decline to adopt the broad rule proposed by defendant which would require automatic disqualification of every attorney in a criminal defense action where the attorney is simultaneously employed as either a state court solicitor or probate judge.


We therefore concluded that part-time Judges are not prohibited from representing defendants in criminal cases, subject to the reservations spelled out in the statutes and the Canons as above set forth.