April 30, 1998

Paul R. Bosson
Prosecuting Attorney, 18th Judicial District
501 Ouachita Avenue
Hot Springs, Arkansas 71901

Re: Advisory Opinion # 98-02

Dear Mr. Bosson:

You have asked whether it is proper for a municipal judge, having jurisdiction over cases wherein the State of Arkansas regularly appears and is represented by a prosecuting attorney, to represent defendants in circuit courts and in other municipal courts where the prosecuting attorney also represents the State. You hypothesize that municipal judges engaged in private practice could appear on behalf of defendants in murder trials and robbery trials, opposing prosecuting attorneys who represent the State in other proceedings presided over by that same municipal judge.

Canon 4G of the Code of Judicial Conduct prohibits the practice of law by a judge in any of the courts of this State. Consequently, were it in not that Acontinuing part-time judge(s) (as defined in the Terminology section of the Code) are exempt under Section B of the Application section of the Code from compliance with Canon 4G, municipal judges would not be allowed to practice law in any fashion. Moreover, while the Code stops short of a categorical prohibition of the practice of law by part-time judges, it is clear that restraint and caution are called for. Because the guidelines are necessarily indistinct, finding the dividing line is problematic.

We note that Canon 2 reads:

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES

A. A JUDGE SHALL RESPECT AND COMPLY WITH THE LAW AND SHALL ACT AT ALL TIMES IN A MANNER THAT PROMOTES PUBLIC CONFIDENCE IN THE INTEGRITY AND IMPARTIALITY OF THE JUDICIARY.

Pertinent comments of the code are:

" Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions of the judge's conduct that might be viewed as burdensome by the ordinary citizen, and should do so freely and willingly."

"The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast is general terms that extend to conduct by judges that is harmful, although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create, in reasonable minds, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."

In the opinion of the Committee, an individual who accepts the position of a continuing part-time judge places the judicial office first in service and priority, and certain restrictions must follow. It is, we believe, self evident that a municipal judge who is engaged in an adversarial role opposing a prosecuting attorney in a criminal case brought by the State and who presides over proceedings involving that same prosecuting attorney is in an untenable position, however principled that individual may be. Acting as both judge and jury, the municipal judge has significant discretion in dealing with the prosecuting attorney. To oppose that same attorney in another matter creates an appearance of impropriety. We conclude, as have a majority of other jurisdictions, that license must yield to ethic, where, in the perception of reasonable minds, the ability of municipal judges to carry out their responsibilities with integrity, competence and impartiality could be impaired. It follows that the initial responsibility rests on the municipal judge to decline the personal representation of a criminal defendant in any circuit within which the prosecuting attorney has jurisdiction.

Yours very truly,

Steele Hays

For the Committee

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