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South Carolina
JUDICIAL DEPARTMENT
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Advisory Opinions

ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL CONDUCT

OPINION NO. 02 - 2013

RE:  Propriety of a part-time magistrate judge representing a criminal defendant in General Sessions Court outside of the jurisdiction in which the judge serves.

FACTS

A part-time magistrate judge is also a practicing attorney.  The judge has avoided  representing any criminal defendants since the judge’s ascension to the bench.  However, the judge now inquires as to whether the judge may represent a criminal defendant in General Sessions Court in a county that is not the same as the county in which the judge serves.

CONCLUSION

A part-time magistrate judge may represent a criminal defendant in General Sessions Court in a different jurisdiction.

OPINION

In Section C(2) of the Compliance portion of Rule 501, its states that a part-time judge "shall 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 related thereto." 

This Committee has previously addressed similar inquiries to the one presented here. In Opinion 5-1987, this Committee found that a part-time Municipal Judge could practice law in General Sessions Court in the county in which the judge presided, provided that the matter did not arise out of the municipality in which the judge presided.  In other words, the part-time judge could practice law in another jurisdiction.   In Opinion No. 4-1997, the Committee found that a part-time magistrate could not act as defense counsel in a DUI case in municipal court because the arrest took place in the same county in which the magistrate presided. Thus, the magistrate’s court had concurrent jurisdiction over the matter and service as defense counsel would violate Section C(2).

Here, the General Sessions court is not subject to the appellate or concurrent jurisdiction of the Magistrate’s Court where this part-time judge serves, and thus, there is no prohibition in the Code against the judge representing a defendant in General Sessions.  In addition, the inquiring judge will only represent defendants in counties other than where the judge serves,[1] and Op. 5-1987 found that a part-time judge could practice in courts outside of his or her jurisdiction.  Thus, the inquiring judge may represent defendants in General Sessions Court in counties outside of the judge’s County.


[1]A magistrate judge’s jurisdiction is limited to the county in which he or she presides.  S.C. Code § 22-3-520.
 

s/_____________________________________
KEITH M. BABCOCK, INTERIM CHAIRMAN

s/_____________________________________
G. EDWARD WELMAKER

s/_____________________________________
JOCELYN B. CATE

February 8, 2013