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Advisory Opinions


OPINION NO. 4 - 2012

RE: Propriety of a part-time magistrate judge screening incarcerated individuals and appointing the Public Defender’s office to represent those who qualify.



A part-time Magistrate judge inquires into the propriety of screening incarcerated individuals and appointing the Public Defender’s office to represent those who qualify.  The Public Defender’s office is approximately 30 miles away from the local detention center.  Because of the distance, an employee of the Public Defender would be out of the office for almost an entire day commuting and completing the appointment process.  The part-time Magistrate has the use of a video conferencing system which is utilized by the court to conduct bond hearings with the detention center.  As a method of more efficiently handling the pending cases, the part-time Magistrate has taken over the pre-trial screening process, using the video conferencing system.  The compensation for this service is made by using the county payroll department from the funds designated for the Office of Public Defender’s yearly budget.  The Magistrate is personally paid for the screenings.  The interaction with the incarcerated inmate is limited to the Magistrate explaining the procedure and then referring the information to the Public Defender’s office.  There is no assignment of any individual attorney by the Magistrate.  The Magistrate inquires into the propriety of conducting these pre-trial screenings, accepting compensation for such screenings, and whether such activity, if permitted, would prevent the judge from presiding over any traffic cases, preliminary hearings, or summary court.


A part-time Magistrate may conduct pretrial screening to determine if an inmate qualifies for the services of the Public Defender’s office, but any compensation must be paid to the County, not the Magistrate personally.  The Magistrate’s actions of screening inmates does not prevent the Magistrate from presiding over any traffic cases, preliminary hearings, or summary court.


A judge must uphold the integrity and independence of the judiciary.  Canon 1, SCACR.  Canon 2 further states that a judge must avoid all impropriety and appearance of impropriety.  However, a judge has certain administrative responsibilities, including the power of appointment:

A judge shall not make unnecessary appointments.  A judge shall exercise the power of appointment impartially and on the basis of merit.  A judge shall avoid nepotism and favoritism.  A judge shall not approve compensation of appointees beyond the fair value of the services rendered.

Canon 3C(4).  According to the commentary, the term appointees includes “assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs.” (emphasis added).

Here, while the judge would not actually be appointing or assigning a particular attorney, the judge would be conducting pre-trial screenings of incarcerated persons and forwarding the information of qualifying inmates to the Public Defender’s office.  The Magistrate has no control over which employee of the Public Defender’s office is assigned and no control over the compensation for the Public Defender’s services to the inmates.  Furthermore, the screenings do not require the Magistrate to discuss the facts of the case with any inmate or Public Defender.  Thus, it appears the pre-trial screening procedure here is similar to the assignment of counsel as permitted by Canon 3.  Therefore, the Magistrate may continue to conduct these pre-trial screenings.  In addition, because these screenings are merely an extension of the judge’s duties, there is no conflict of interest or appearance of impropriety with the Magistrate presiding over traffic cases, preliminary hearings, or summary court criminal matters involving inmates screened by the Magistrate.

With regard to payment, the Magistrate should not personally accept payment for the screening because the Public Defender regularly appears in the Magistrate’s Court.  The acceptance of payment could create the appearance of partiality or impropriety.  However, the Public Defender can remit the funds to the County, and the County may pay the Magistrate in accordance with compensation structure of Magistrates as set forth in S.C. Code 22-8-10, et seq., which includes the following provision:

Nothing in this section may be interpreted as prohibiting a county from paying a magistrate more than the salary established for that county or from paying a magistrate a merit raise in addition to the salary established for that county.

S.C. Code § 22-8-40(L). 
In conclusion, the Magistrate can continue to conduct initial screenings to determine eligibility for representation as long as the guidelines herein are followed.





March 3, 2012