June 13, 1997
The Honorable John Dodge
Municipal Judge of Sulphur Springs
1008 West Callahan Drive
Rogers, Arkansas 72758
RE: Advisory Opinion 97-04
Dear Judge Dodge:
In your letter dated May 28, 1997, you stated that you were a part-time ACity Judge for Sulphur Springs, Arkansas and asked a number of questions of our Committee.
We can give no specific opinion with regard to your question concerning your representing the City of Sulphur Springs against the Chamber of Commerce because it is an impending matter for which we may not give an opinion. We hope however, that you receive some clear guidance from the remaining issues addressed in this opinion.
You asked the following questions:
1. Will I be prohibited from representing the City of Sulphur Springs in a civil matter in any court?
2. If not, will I be prohibited from representing the city in a municipal court in the same county?
3. If I am prohibited from representing the city in municipal court, can I represent the city in circuit court where all of the judges are full-time?
Were it not for the Application Section of the Code exemption of Canon 4G, Practice of Law, for a AContinuing part-time judge (as defined by Section B of the Definition Section of the Code) you could not engage in the practice of law. This creates a very difficult situation for municipal judges in our state who must supplement their income by practicing law. In matters affecting the image and integrity of the judiciary, we should be very sensitive and, if it is a close case, err on the side of caution. There are no clear guidelines on this issue. However, we are of the opinion that while you are allowed to practice law, extra care and effort must be made so as not to create the appearance of impropriety.
CANON 2. A A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGES ACTIVITIES provides that a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Some of the comments in the Code are relevant here:
APublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by ordinary citizen and should do so freely and willingly. (Emphasis supplied)
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. (Emphasis supplied)
It is our opinion that your representing the city that you serve as municipal judge could create, in reasonable minds, a perception that your ability to carry out your judicial responsibilities with integrity, impartiality, and competence is impaired. Therefore, we conclude that it would be inappropriate for a municipal judge to represent the city that he serves in any cases regardless of the forum. Your private practice should be as far removed as possible from your court and the city you serve. The public simply could not be expected to understand the fine lines of jurisdictional issues and would tend to look at the judge as both the attorney and the judge for the city.
Very truly yours,
Edwin B. Alderson, Jr.
For the Committee
