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June 17, 2003

The Honorable Donald Goodner
District Court Judge
P.O. Box 567
Waldron, AR 72958

RE: Advisory Opinion 2003-01

Dear Judge Goodner:

In your capacity as a District Judge for Scott County, you have asked four questions pertaining to the conduct of the city attorney for the City of Waldron in his dealing with a DWI case pending before your court. From your description of the circumstances, the city attorney has advised you that he will not call any witnesses in a DWI case in which the defendant registered .24 BAC, which would necessitate you dismissing the case. The proffered reason by the city attorney for this action is that he doesn’t want the defendant to lose his CDL license by a conviction.

You first question whether you are obligated to report the city attorney’s actions to the Professional Conduct Committee. Canon 3 (D)(2) provides that a judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. Further a judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question of the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall either communicate directly with respect to the violation with the lawyer who has committed the violation or report the violation to the Arkansas Supreme Court Committee on Professional Conduct. A judge should make this decision on his or her own based on the aforementioned rules. It is not within the scope of this Committee’s duties to make this decision for you.

Your second question pertains to procedure. You question how you should proceed knowing that the city attorney will intentionally not call witnesses necessary to convict the defendant.
Canon 3 (B)(8) requires a judge to dispose of all matters promptly, efficiently and fairly. Again, it is not within the scope of this Committee’s duties to advise you on how to proceed in a particular case.

Your third question pertains to the issue of disqualification on your part in any future cases involving the city attorney, should you file a complaint against him. Canon 3 (E) (1)(a) provides that a judge should disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned including instances where the judge has a personal bias concerning a party’s attorney. Generally, the Supreme Court has given great latitude to judges in making personal decisions as to whether they can remain impartial in a given situation, barring an obvious example.

Finally, you ask whether, under Arkansas law, should you withdraw from all future City of Waldron cases, or may you may appoint a special prosecutor to handle all future City of Waldron cases until the complaint against the city attorney is resolved. Your withdrawal is covered in our response to your third question. The appointing of a special prosecutor is beyond the authority of this Committee, as the Arkansas Code of Judicial Conduct does not cover it. Certainly, if the law allows such an appointment, then that is to be considered.


David B. Bogard
For the Committee


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