Opinion 63
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-1.2 Promoting Confidence in the Judiciary; 2.3.1 Extrajudicial Activities in General, Subdivision (A); and 2-2.1 Giving Precedence to the Duties of Judicial Office.)
Issue:
May a municipal judge be appointed to represent an indigent in a criminal case?
Discussion:
American Bar Association informal Opinion #1286 reviewed this same issue in a related fact situation. That opinion dealt with a jurisdiction where municipal judges had the duty of determining probable case in preliminary hearings of state charges in addition to their duties involving municipal ordinance violations. In deciding that municipal judges could not be appointed to represent criminal indigents the opinion stated:
In Missouri, municipal judges do not handle preliminary hearings. However, facts that amount to a city ordinance violation are many times also a violation of state law. A municipal judge could conceivably be a judge in one trial and a defense counsel in another involving the same facts. Additionally, the practice of appointing as criminal defense counsel would erode public confidence in the integrity and impartiality of the judiciary in violation of Supreme Court Rule 2 Canon 2(A). The case of In Re Fullwood, 518 S.W.2d 22, 23 (Mo. 1975) held that municipal judges are subject to the jurisdiction of the Commission on Retirement, Removal and Discipline and the Code of Judicial Conduct. Accordingly, it is the opinion of the Commission on Retirement, Removal and Discipline that a municipal judge should not be appointed to represent criminal indigents.
(Dated: January 6, 1982)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 63
Issue:
May a municipal judge be appointed to represent an indigent in a criminal case?
Discussion:
American Bar Association informal Opinion #1286 reviewed this same issue in a related fact situation. That opinion dealt with a jurisdiction where municipal judges had the duty of determining probable case in preliminary hearings of state charges in addition to their duties involving municipal ordinance violations. In deciding that municipal judges could not be appointed to represent criminal indigents the opinion stated:
We think that the practice in question is precluded by Canon 5 of the Code of Judicial conduct, which provides: "A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties." Although the compliance schedule of this code reflects that a part-time judge may practice law, it clearly prohibits his acting "as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto." Moreover, Canon 2(A) requires that a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Because the prefatory paragraph of Canon 3 commands that the "judicial duties of a judge take precedence over all his other activities" we conclude that he should not permit his law practice to intrude in the described circumstances upon his judicial duties.
In addition, from the view of the lawyer such conduct would be inconsistent with DR 5-101(A) of the Code of Professional Responsibility, which states:
Because the process for appointment of counsel for indigents does not ordinarily lend itself to an informed consent by the defendant and because of the inherent difficulties in procuring any binding consent on behalf of the state in the absence of express legislative or constitutional sanction (see Formal Opinion 306), we believe that the provision for consent to representation would have not room for application in the instant case.”
In addition, from the view of the lawyer such conduct would be inconsistent with DR 5-101(A) of the Code of Professional Responsibility, which states:
Except with the consent of his client after full disclosure a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonable may be affected by his own financial, business, property, or personal interest.
Because the process for appointment of counsel for indigents does not ordinarily lend itself to an informed consent by the defendant and because of the inherent difficulties in procuring any binding consent on behalf of the state in the absence of express legislative or constitutional sanction (see Formal Opinion 306), we believe that the provision for consent to representation would have not room for application in the instant case.”
In Missouri, municipal judges do not handle preliminary hearings. However, facts that amount to a city ordinance violation are many times also a violation of state law. A municipal judge could conceivably be a judge in one trial and a defense counsel in another involving the same facts. Additionally, the practice of appointing as criminal defense counsel would erode public confidence in the integrity and impartiality of the judiciary in violation of Supreme Court Rule 2 Canon 2(A). The case of In Re Fullwood, 518 S.W.2d 22, 23 (Mo. 1975) held that municipal judges are subject to the jurisdiction of the Commission on Retirement, Removal and Discipline and the Code of Judicial Conduct. Accordingly, it is the opinion of the Commission on Retirement, Removal and Discipline that a municipal judge should not be appointed to represent criminal indigents.
(Dated: January 6, 1982)