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South Carolina
JUDICIAL DEPARTMENT
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Advisory Opinions

ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL CONDUCT


OPINION NO. 1 - 2014

RE : Propriety of a part-time probate judge, who also has a private practice, to continue accepting clients under a contract with the public defender’s office.

FACTS

A new part-time probate judge also has a private practice of law (that was the subject of this Committee’s Opinion 6-2013).  The probate judge now inquires as to the propriety of continuing to accept clients under a contract with the public defender’s office.  The Probate Court and General Sessions never interface except in two instances:  

1.         Probate Court presides over mental health court once a week.  This is a diversionary court that consists of criminal defendants who have been screened and approved by the Solicitor.  If the defendants successfully complete their treatment, their charges can potentially be dropped.  If the part-time probate judge has a client participating in mental health court, another judge could be assigned.

2.         If a criminal defendant has been found unfit to stand trial due to a mental illness, the Solicitor’s office is required to file a proceeding with the Probate Court to have the defendant placed in treatment. If this criminal defendant also happened to be a client of the part-time judge, the Probate Court would simply assign another judge to hear that case.  The Probate Court is notified well in advance of the names of these defendants, and this is not a frequent event.
The probate judge inquires as to the propriety of accepting clients under a contract with the public defender under these circumstances.

CONCLUSION

            A part-time probate judge cannot continue to accept clients under a contract with the public defender.

OPINION

A continuing part-time judge is not required to comply with Canon 4G that prohibits a judge from practicing law.  Rule 501, Application C(1)(b), SCACR.  A part-time judge may practice law, subject to several limitations under the Code of Judicial Conduct.   In Opinion 6-2013, we explained that “[a] continuing part-time judge shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.”  Rule 501, Application C(2), SCACR (emphasis added).   In that opinion, we found that  the part-time judge could continue to practice probate law but could not do so in the County in which he or she will also preside as probate judge.  Here, under the contract with the public defender’s office, the probate judge may be required, albeit sporadically, to appear before the Probate Court in the same County where the Probate Judge presides, which directly contradicts the Code of Judicial Conduct. 

 

s/_____________________________________
A. CAMDEN LEWIS, CHAIRMAN

s/_____________________________________
EDWARD G. WELMAKER, III

s/_____________________________________
JOCELYN B. CATE

February 11, 2014