Can a law firm hire a sitting probate judge to practice law part-time outside of court hours?

Plain-English summary

A lawyer wished to hire the resident probate judge to practice law part-time at his firm, doing office work before and after court hours and on weekends while the judge continued to serve. The committee was asked whether a sitting probate judge may practice law part-time and, if so, what restrictions apply.

The committee answered because the inquiry came from the hiring lawyer and Rule 8.4(g) bars a lawyer from knowingly assisting a judge in conduct that violates judicial-conduct rules. It acknowledged a 1984 judicial-conduct opinion (No. 9-1984) had suggested a probate judge could practice law part-time, inferring as much from S.C. Code Ann. § 14-23-1110 (barring a probate judge only from acting as a lawyer in matters pending before the probate court). But the committee noted that earlier statutory language expressly allowing a probate judge to practice law had since been deleted, that § 14-23-1010 contemplates the probate courts being open "at all reasonable hours" (suggesting a full-time position), and that Canon 4(F) of the Code of Judicial Conduct states flatly that "A judge should not practice law," without qualification except for judges who serve only part-time. Concluding the probate judgeship is full-time, the committee held a probate judge may not serve as a part-time lawyer, so a firm employing one would violate Rule 8.4(g).

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 Treat this page as historical context, not current guidance.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 sitting probate judge also practice law part-time at a firm?

A: The committee concluded no. It treated the probate judgeship as a full-time position barred from practicing law by Canon 4(F), so the arrangement is not permitted.

Q: Why is this the bar's ethics committee's concern rather than only the judicial-conduct committee's?

A: Because the inquiry came from the hiring lawyer, and Rule 8.4(g) makes it the lawyer's ethical concern not to assist a judge in conduct violating judicial-conduct rules.

Q: Didn't a 1984 opinion allow it?

A: A 1984 judicial-conduct opinion suggested a probate judge could practice law part-time, but the committee found that intervening statutory changes and Canon 4(F) point to the judgeship being full-time, leading to the opposite result.

Background and rules framework

The opinion applied Rule 8.4(g) (assisting a judge in conduct violating judicial-conduct rules), read against Canon 4(F) of the South Carolina Code of Judicial Conduct and S.C. Code Ann. §§ 14-23-1110 and 14-23-1010. The South Carolina rule corresponds to like-numbered Model Rule 8.4.

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)).

Other authority:

• South Carolina Code of Judicial Conduct, Canon 4(F): a judge should not practice law.
• S.C. Code Ann. §§ 14-23-1110, 14-23-1010 (probate-judge duties).

See also

• SC Bar Ethics Op. 94-02: Part-Time City Judge as City Attorney
• SC Bar Ethics Op. 94-12: Reviewing a Case at a Judge's Request

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-05/

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 94-05

Lawyer L wants to hire the resident probate judge to practice law on a part-time basis in the law firm of Lawyer L. The judge would continue to serve as probate judge and would primarily be doing office type work prior to normal probate court hours, after hours, and on weekends.

Question:
Is it proper for a probate judge who is a lawyer to practice law on a part-time basis? If so, what restrictions would apply?

Summary:
The Code of Judicial Conduct prohibits a full-time judge from practicing law. Accordingly, a law firm may not, under Rule 8.4, hire a sitting probate judge as part-time lawyer.

Opinion:
The question presented might be directed more appropriately to the Advisory Committee on Standards of Judicial Conduct since it questions the propriety of a sitting probate judge also practicing law. However, because this request is from the lawyer who would hire the judge and because Rule 8.4(g) of the Rules of Professional Conduct prohibits a lawyer from knowingly assisting a judge in conduct that violates applicable rules of judicial conduct or other law, we believe the inquiry falls also within the purview of this Committee. In a 1984 opinion, No. 9-1984, the Advisory Committee on Standards of Judicial Conduct did suggest that a probate judge may practice law on a part-time basis. The Committee based that view upon SC Code Ann. 14-23-1110 which provides that a probate judge may not act as a lawyer in any matter pending before the probate court. By negative inference, the Committee assumed that a probate judge could otherwise practice law.

The Committee in 1984 noted, however, that earlier statutory language in 14-23-1110 expressly allowing a probate judge to practice law had been deleted from the current version of that law. We further observe now that 14-23-1010 contemplates that the probate courts shall be open for business "at all reasonable hours" suggesting that the position of probate judge is to be treated as a full-time position. Canon 4(F) of the SC Code of Judicial Conduct (Appellate Court Rule 501) states clearly that "A judge should not practice law." There are no qualifications on that prohibition except when the judge serves only on a part-time basis.

Accordingly, we believe that under current laws and the Code of Judicial Conduct, a probate judge may not serve as a part- time lawyer. A law firm, therefore, that employs a probate judge as a part-time lawyer would violate Rule 8.4(g).