When a law firm member serves as a part-time municipal judge, can the firm's other lawyers appear before that same court?

Plain-English summary

A member of a law firm had become, or might become, a part-time municipal judge hearing bonds, preliminary hearings, and municipal-level traffic and criminal matters. The inquiry asked whether the judge's law partners could appear as counsel before other judges of the same municipal court, and whether their ability to do so would change if the part-time judge withdrew from the partnership but continued to share office space with it.

On the first question, the committee concluded the judge's partners could not appear before that municipal court. It noted that the Code of Judicial Conduct (Supreme Court Rule 33) provides in its Compliance provisions that a part-time judge should not practice law in the court he serves or in any court subject to that court's appellate jurisdiction, so the part-time judge himself could not appear there. Whether that disqualification was imputed to his partners was governed by Rule 1.10; although Rules 1.7, 1.8(c), 1.9, and 2.2 (referenced in Rule 1.10) did not specifically address part-time judges (a gap the committee found understandable because the Code of Judicial Conduct generally covers the issue), the spirit and intent of Rule 1.10 is that if one firm member is disqualified, his partners generally are too. Having a partner sit as judge on the same court would create the appearance that the partner may have undue influence, so the disqualification was imputed. On the second question, the committee said the imputation rule applies to lawyers "associated in a firm," and quoted the Rule 1.10 comment's fact-specific definition of "firm": lawyers who share office space but present themselves to the public as a firm, or conduct themselves as one, are treated as a firm. Without fuller facts the committee could not be definitive, but it thought it unlikely the appearance of undue influence could be sufficiently avoided if the part-time judge withdrew from the partnership yet continued to share office space with it.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the part-time judge's partners appear before his municipal court?

A: The committee said no. The judge could not practice in the court he served, and under Rule 1.10 that disqualification was imputed to his partners because of the appearance of undue influence.

Q: Would withdrawing from the partnership but sharing office space fix it?

A: The committee said probably not. Lawyers who share space but present themselves as a firm are treated as a firm under Rule 1.10's comment, so the appearance of undue influence would likely persist.

Q: Why didn't the conflict rules listed in Rule 1.10 mention part-time judges?

A: The committee said that gap was understandable because the Code of Judicial Conduct generally covers judge-related disqualification, but the spirit and intent of Rule 1.10 still imputed the judge's disqualification to his partners.

Background and rules framework

The opinion applied Rule 1.10 (imputed disqualification) and the Code of Judicial Conduct (Supreme Court Rule 33) Compliance provisions for part-time judges, corresponding to Model Rules 1.10 and 1.12. The committee read the "firm" definition in the Rule 1.10 comment to control whether shared office space still imputed the bar.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm, including the comment's definition of "firm."
• Code of Judicial Conduct (S.C. Sup. Ct. Rule 33), Compliance provisions for part-time judges (cf. Model Rule 1.12).

Cases:

• W.E. Bassett Co. v. H.C. Cook Co., 201 F. Supp. 821 (D. Conn. 1962).

See also

• SC Bar Ethics Op. 90-20: A City Councilman's Firm and Conflicts
• SC Bar Ethics Op. 90-04: Solicitor Before Spouse's Judge

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-10/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-10

A member of a law firm has become or may become a part-time municipal judge before whom matters of bonds, preliminary hearings and municipal level traffic and criminal offenses are heard.

Question:

1. Can law partners of the municipal judge appear as counsel before other judges in the same municipal court where their partner serves?
2. If the part-time judge withdraws from the partnership and only shares office space with the partnership, would his former partners then be allowed to appear in the municipal court before the other judges of that court?

Summary:

1. The South Carolina Code of Judicial Conduct, provides in the Compliance provisions that a part-time judge should not practice law in the court on which he serves. The general rules of imputed disqualification would also bar the part-time judge's law partners from also practicing before that court.

2. Withdrawal from the partnership, but continuing to share office space with the former partners, most likely constitutes a "firm" within the meaning of Rule 1.10. The analysis under that rule is fact specific but if the individuals had presented themselves as a partnership to the public before and continue to occupy the same office space, the public would be most likely led to believe that they continued to conduct their practice as a firm.

Opinion:

1. South Carolina Supreme Court Rule 33, the South Carolina Code of Judicial Conduct, provides in the Compliance provisions that "a part-time judge . . . (2) should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in any proceeding in which has served as a judge or in any other proceeding related thereto." It is thus clear that the part-time judge could not appear before another judge in that municipal court.

The issue of whether the part-time judge's disqualification is imputed to his partners is governed by S.C. Rule of Prof.

Conduct 1.10. Subsection (1) of that Rule provides that "(w)hile lawyers are associated in a firm none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2." Rules 1.7, 1.8(c), 1.9 and 2.2 do not specifically address disqualification in the context of a part-time judge. This gap is understandable since the Code of Judicial Conduct generally covers that type of issue. Prior DR 5-105(D) also lacks a specific reference to part-time judges. The spirit and intent of Rule 1.10, however, is to make clear that if a member of a law firm is disqualified from certain representation, then generally his or her partners are also disqualified. See, e.g. W. E. Bassett Co v. H. C. Cook Co., 201 F. Suppl. 821 (D. Conn. 1962).

In this situation, having a law partner as a judge on the same court the partner appears before would create the appearance that the partner may have undue influence on that court. The disqualification of the part-time judge should therefore be imputed to his or her partners.

2. The general imputation of disqualification rule set forth in Rule 1.10(a) applies to lawyers "associated in a firm." The comment to the Rule defines or sets forth general guidelines for what constitutes a "firm" under the Rules of Professional Conduct. The comment states in part as follows:

Definition of "firm" . . . Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purpose of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as it the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved. A group of lawyers could be regarded as a firm for the purpose of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other.
Comment to Rule 1.10.

None of the details of the practice arrangement are set forth in the hypothetical presented and the factual situation would need to be more fully developed for a more definitive opinion. It is unlikely however that the appearance of having an undue influence over a tribunal that would exist if a part-time judge was in a partnership could be sufficiently avoided if the part-time judge withdrew from the partnership and continued to share space with it.