Can a part-time municipal judge with criminal jurisdiction represent criminal defendants in the circuit court when his own city is not involved in the case?

Plain-English summary

The inquiring lawyer was the municipal judge for the City of X. As municipal judge his jurisdiction extended to violations of municipal ordinances and to violations of Chapters 17A, 17B, and 17C of the West Virginia Code. He asked whether it was ethical for him to practice criminal law in the local circuit courts so long as the City of X was not interested in the case.

The Committee traced the jurisdiction of municipal courts. W. Va. Code § 18-10-2 provided for their creation, and until January 1, 1977, a municipal court's criminal jurisdiction was coextensive with that of a justice of the peace or magistrate, including authority to conduct preliminary hearings in felony cases. The Judicial Reform Amendment to Article VIII, Section 11 of the West Virginia Constitution limited municipal courts' criminal jurisdiction to violations of municipal ordinances from and after January 1, 1977, but a municipal judge still exercises criminal jurisdiction, and appeals from a municipal court are tried de novo in the circuit court of the county.

The Committee reasoned that a lawyer may in no event practice in the court in which he sits as a judge, even when another judge presides, and that under DR 9-101(A) a lawyer may not accept private employment in a matter on whose merits he acted in a judicial capacity. Canon 7A of the Code of Judicial Conduct provides that a part-time judge should not practice law in the court on which he serves or in any court subject to that court's appellate jurisdiction. Drawing on ABA Opinions 242 (1942) and 142 (1935) and New York opinions, the Committee concluded that permitting a judge with criminal jurisdiction to practice criminal law would weaken public confidence in the impartiality of the judiciary and risk the suspicion that the judge was using his position to further his private practice. Because appeals from the municipal judge's court would be tried de novo in the circuit court, the Committee concluded it would be improper for him to try criminal cases in that same court.

The Committee held it would be improper for the inquiring lawyer to represent criminal defendants in the circuit court so long as he occupied the position of municipal judge of the City of X and had criminal jurisdiction, although that jurisdiction was limited to violations of municipal ordinances and violations of Chapters 17A, 17B, and 17C of the West Virginia Code.

Currency note

This opinion was issued in 1977, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. It also describes municipal-court jurisdiction as it stood after the 1977 Judicial Reform Amendment. Subsequent rule amendments, statutory changes, 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, statute, or requirement mentioned here.

Common questions

Q: Could a part-time municipal judge represent criminal defendants in the circuit court?

A: No. The opinion concluded it would be improper for the municipal judge to represent criminal defendants in the circuit court while he occupied the judgeship and had criminal jurisdiction, even though that jurisdiction was limited to municipal ordinances and Chapters 17A, 17B, and 17C of the Code.

Q: Why did it matter that appeals went to the circuit court?

A: Appeals from a municipal court are tried de novo in the circuit court of the county. The opinion reasoned that a judge may not practice in a court subject to his own court's appellate review, so trying criminal cases in that circuit court would be improper.

Q: Did the part-time, low-paid nature of the judgeship change the result?

A: No. The opinion concluded that meager compensation did not justify a contrary result; limiting a part-time judicial officer's criminal practice was a small price compared to the benefit to public confidence in the judiciary.

Background and rules framework

The opinion applied DR 9-101(A) of the West Virginia Code of Professional Responsibility (a lawyer may not accept private employment in a matter on whose merits he acted judicially) and Canon 7A of the Code of Judicial Conduct (a part-time judge should not practice law in the court on which he serves or in any court subject to that court's appellate jurisdiction). It read these against the statutory framework for municipal courts, including W. Va. Code § 18-10-2, the appeal provisions in W. Va. Code §§ 8-2-10 and 8-34-1, and Article VIII, Section 11 of the West Virginia Constitution as amended by the Judicial Reform Amendment.

Citations and references

Rules of Professional Conduct and Judicial Conduct (as cited):

• DR 9-101(A) (no private employment in a matter on whose merits the lawyer acted judicially)
• Canon 7A, Code of Judicial Conduct (a part-time judge may not practice in his own court or a court subject to its appellate jurisdiction)

Statutes and constitutional provisions:

• W. Va. Code § 18-10-2 (creation of municipal courts; appointment or election of judges)
• W. Va. Code §§ 8-2-10, 8-34-1 (appeals from municipal court)
• W. Va. Const. art. VIII, § 11 (Judicial Reform Amendment; municipal-court jurisdiction)

Other opinions cited:

• ABA Opinion 242 (1942) (a judge who conducts misdemeanor trials and felony examinations may not act as attorney for defendants in other courts)
• ABA Opinion 142 (1935)
• N.Y.S.B.A. Opinion 228 (1972); N.Y.S.B.A. Opinion 181 (1971) (part-time judge with criminal jurisdiction may not practice criminal law in other courts)

Other authorities cited:

• Drinker, Legal Ethics 279 (1953)

See also

• WVSB Ethics Op. 78-12: Municipal judges and city solicitors defending criminal cases
• WVSB Ethics Op. 79-3: Municipal judge and a firm's criminal practice
• WVSB Ethics Op. 89-03: Municipal judges accepting non-criminal appointments

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665530a55ace4e.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

WEST VIRGINIA STATE BAR JOURNAL
Spring, 1978
Volume 4, Number 1

MUNICIPAL JUDGES

LEGAL ETHICS INQUIRY 77-3

Reference is made to your letter wherein you state that you are the municipal judge for the City of X, having been so appointed. As municipal judge your jurisdiction extends to violations of municipal ordinances and the violations of the provisions of Chapters 17A, 17B and 17C of the Code of West Virginia. You ask, "Is it ethical for me to practice criminal law in our local circuit courts so long as the City of X is not interested in the case"?

West Virginia Code § 18-10-2 provides for the creation of municipal courts and the appointment or election of judges of such courts. The criminal jurisdiction of a municipal court was the same as that of a justice of the peace or a magistrate until January 1, 1977. Article VIII, Section 11 of the Constitution of West Virginia, as amended by the Judicial Reform Amendment, provides as follows:

Until otherwise provided by law, all such [municipal] courts heretofore established shall remain and continue as now constituted, and with the same right of appeal, insofar as their jurisdiction to enforce municipal ordinances is concerned; but on and after January 1, 1977, any other jurisdiction exercised by such courts shall cease.

Prior to January 1, 1977, a municipal judge's jurisdiction was coextensive with that of a justice of the peace or a magistrate. He conducted trials for violations of municipal ordinances and certain state statutes. He also had jurisdiction to conduct preliminary hearings in felony cases. Thus, prior to January 1, 1977, it was improper for a municipal judge to act as an attorney for defendants in criminal trials in any other courts. ABA Op. 242 (1942).

As pointed out above, the Judicial Reform Amendment limited the criminal jurisdiction of municipal judges to violations of municipal ordinances from and after January 1, 1977. However, a municipal judge still exercises criminal jurisdiction and an appeal lies from a municipal court to the circuit court of the county. W. Va. Code §§ 8-2-10, 8-34-1; W. Va. Const., Art. VIII, § 11. Appeals from a municipal court are tried de novo in the circuit court.

A lawyer may in no event practice in the court in which he sits as a judge, even when presided over by another judge. Drinker, Legal Ethics 279 (1953); ABA Op. 142 (1935); N.Y.S.B.A. 228 (1972). Similarly, a lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity. DR 9-101(A).

Canon 7A of the Code of Judicial Conduct provides as follows:

A. Part-Time Judge. A part-time judge is a judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge. 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 relating thereto.

Whether a lawyer, while occupying a position as a part-time judge, should represent a defendant in a criminal proceeding in a court other than that over which he presides has been the subject of numerous opinions by the American Bar Association and the New York State Bar Association. In an opinion dated February 25, 1972, (N.Y.S.B.A. 228) the New York State Bar Association reviewed its earlier opinions on the subject of criminal practice by part-time judges and stated:

However, a careful review of the ethical considerations leads to the inescapable conclusion that the question [whether a part-time judge with criminal jurisdiction should represent criminal defendants in other courts] should be answered in the negative, so that the judiciary will be held in the high esteem that the public demands and deserves.

In an earlier opinion, N.Y.S.B.A. No. 181 (3-23-71), the New York State Bar Association stated that it would be improper for a city judge with city-wide misdemeanor jurisdiction to engage in the practice of criminal law in other courts, saying:

Such practice would weaken the confidence of the public in the impartiality and objectivity of the judiciary and would be subject to the suspicion that the judge was using the prestige of his position to further his private practice.

The fact that the compensation provided for the part-time judge may be meager does not furnish a justification for a contrary result. Limitations on a part-time judicial officer's private practice circumscribing criminal practice is a small price to pay, as the benefits derived by the public far outweigh the detriment to the individual judge. Appeals from your court would necessarily be tried in the circuit court. The Committee feels that it would be improper for you to try criminal cases in the same court in which appeals from your court are tried de novo. As pointed out in ABA Opinion No. 242 (1942):

In our opinion, acceptance of a judgeship with the duties of conducting misdemeanor trials, and examinations in felony cases to determine whether those accused should be bound over for trial in a higher court, ethically bars the judge from acting as an attorney for the defendants upon such trial, whether they were examined by him or some other judge. Such a practice would not only diminish public confidence in administration of justice in both courts, but would produce serious conflict between the private interests of the judge as a lawyer, and of his clients, and his duties as a judge in advocating important phases of criminal processes in other cases. The public and private duties would be incompatible. The prestige of the judicial office would be diverted to a private benefit, and the judicial office would be demeaned thereby.

One who assumes to act as a judge on one day and as an advocate the next is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system. To permit a judge with criminal jurisdiction to practice criminal law would weaken the confidence of the public in the impartiality and objectivity of the judiciary. It could lead to the suspicion that the judge was using the prestige of his position to further his private practice.

We therefore believe that it would be improper for you to represent criminal defendants in the circuit court so long as you occupy the position of municipal judge of the City of X and have criminal jurisdiction, although that jurisdiction is limited to violations of municipal ordinances and violations of Chapters 17A, 17B and 17C of the West Virginia Code.