Can a part-time city judge, or a member of the judge's firm, also serve as part-time city attorney if that attorney does not prosecute in city court?

Plain-English summary

The committee was asked whether a part-time city judge could also serve as part-time city attorney (with the city attorney not prosecuting matters in city court), and whether a member of the judge's law firm could fill the city-attorney role instead.

Although these questions involve the Code of Judicial Conduct, ordinarily for the Advisory Committee on Standards of Judicial Conduct, the committee answered because the inquiry came from lawyers in the judge's firm and Rule 8.4(g) bars a lawyer from knowingly assisting a judge in conduct violating judicial-conduct rules. On the first question, it concluded no: while the Code's compliance section and Opinion 90-10 directly bar a part-time judge only from practicing in the same court, Canon 2's appearance-of-impropriety standard excludes a part-time judge from proceedings involving parties having business with the city while the judge has an attorney-client relationship with the city. The city attorney's duties (for example, drafting or advising on ordinances the city judge must then rule on) reinforced that holding both positions part-time is precluded. The committee also noted, as legal matters outside its mandate, S.C. Code Ann. § 14-25-15 and possible dual-office-holding constraints.

On the second question, it concluded no: applying Rule 1.10's imputed disqualification, reasoning from Opinion 90-10 that if a firm member is disqualified, generally his partners are too, even though Rules 1.7, 1.8(c), 1.9, and 2.2 do not specifically address the part-time-judge context (a gap the Code of Judicial Conduct fills).

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Can a part-time city judge also be the part-time city attorney?

A: The committee concluded no. The appearance-of-impropriety standard in Canon 2 and the overlap between the two roles preclude holding both positions, and Rule 8.4(g) bars firm lawyers from assisting such an arrangement.

Q: Can a different lawyer in the judge's firm be the city attorney instead?

A: No. The committee applied Rule 1.10 imputed disqualification: because the judge could not serve as city attorney, his firm members generally cannot either.

Q: Why did the bar's ethics committee answer a judicial-conduct question?

A: Because the inquiry came from the judge's firm lawyers and Rule 8.4(g) makes it their ethical concern not to assist a judge in conduct that would violate judicial-conduct rules.

Background and rules framework

The opinion applied Rule 8.4(g) (assisting a judge in conduct violating judicial-conduct rules) and Rule 1.10 (imputed disqualification within a firm), reading them against the South Carolina Code of Judicial Conduct (Canon 2 and the part-time-judge compliance provisions) and its prior Opinion 90-10. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.4 / Model Rule 8.4: misconduct, including assisting a judge in violating judicial-conduct rules (Rule 8.4(g)).
• South Carolina RPC 1.10 / Model Rule 1.10: imputed disqualification within a firm.

Other authority:

• South Carolina Code of Judicial Conduct, Canon 2 and part-time-judge compliance provisions.
• S.C. Code Ann. §§ 14-25-15, 14-25-45 (noted as legal matters outside the committee's mandate).

Other opinions cited:

• SC Bar Adv. Op. 90-10: part-time judge's practice limits and imputed disqualification.

See also

• SC Bar Ethics Op. 94-05: Probate Judge Practicing Law Part-Time
• SC Bar Ethics Op. 94-12: Reviewing a Case at a Judge's Request
• SC Bar Ethics Op. 94-32: Volunteer Prosecutor Defending

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-02/

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 94-02

1. May a part-time city judge also serve as part-time city attorney if the city attorney does not prosecute matters in city court?
2. May a member of a part-time city judge's law firm serve as a part-time city attorney if the part-time city attorney does not prosecute matters in city court?

Summary:

1. No. An attorney who is a part-time city judge would be precluded from also serving as a part-time city attorney. Part- time judges may not act as lawyers in the court on which they serve, or in any proceedings in which they have served as a judge or in any proceedings related thereto. All judges are bound to avoid the appearance of impropriety, and the attorney-client relationship with the city would raise the issue of such an appearance in proceedings with other parties having business with his client.

2. No. If a part-time city judge may not simultaneously serve as a part-time city attorney, the general rules of imputed disqualification would also bar a member of the judge's law firm from serving as part-time city attorney, even if the law firm member did not prosecute matters in city court.

Opinion:

1. These questions should be directed to the Advisory Committee on Standards of Judicial Conduct since they require an interpretation of the South Carolina Code of Judicial Conduct. Nonetheless, this inquiry is brought by attorneys in the judge's law firm, and Rule 8.4(g) of the S.C. Rules of Professional Conduct prohibits a lawyer from knowingly assisting a judge in conduct that violates applicable rules of judicial conduct or other law. Hence, assuming that the Advisory Committee on Judicial Standards would interpret the relevant provisions of the Code of Judicial Conduct as we do, this committee believes that it is within its mandate to respond to the questions brought by these lawyers in so far as they bear on an attorney's ethical obligations.

The South Carolina Code of Judicial Conduct provides in its Compliance section 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 a proceeding in which he has served as a judge or in any other proceeding related thereto.

Advisory Opinion 90-10 held that this provision precludes a part-time judge from appearing before another judge in the same municipal court as an attorney. It does not directly preclude actions as a lawyer outside of the municipal court on matters unrelated to proceedings that have taken place in municipal court.

Nonetheless, Canon 2 binds all judges, including part-time judges. It directs the judge to promote confidence in the judiciary's integrity and impartiality, by not allowing "other relationships to influence his judicial conduct." In the official commentary, moreover, the judge is directed to "avoid all impropriety and appearance of impropriety." The appearance of impropriety standard would exclude a part-time judge from all proceedings involving parties having business with the city so long as the judge had an attorney-client relationship with the city.

Moreover, the actual responsibilities of the city attorney require scrutiny. For example, the limited jurisdiction of the municipal court includes trying "all cases arising under the ordinances of the municipality." S.C.C. 14-25-45. City attorney duties may include drafting these ordinances or advising on policies in reference to their enforcement; the city judge must then rule on the same ordinances from the bench. The weight of these ethical considerations precludes holding both positions on a part-time basis.

Finally, it is not within the mandate of the Ethics Advisory Committee to advise on legal issues. But the committee notes that S.C. Code Ann. §14-25-15 provides that "[n]o municipal judge . . . shall practice law in the municipal court for which he is appointed." The committee also notes that simultaneously serving in both positions may contravene the dual office holding provisions of the State Constitution. See 1979 Op Att'y Gen No-79-109, p. 156; 1976-77 Op Att'y Gen, No 77-137, p. 114; 1974-75 Op Att'y Gen, No. 4173, p. 230.

2. Another member of the part-time judge's law firm would also be disqualified from serving as a part-time city attorney under Rule 1.10. Opinion 90-10 reasoned:

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. . . . 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.