ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 06 - 2013
RE: Propriety of a part-time probate judge continuing his or her probate practice.
A full-time probate judge has been appropriated the funds with which to hire a part-time probate judge. The part-time probate judge will hear cases in the Probate Court and assist with administrative duties as assigned. The part-time judge will also attend training provided by the South Carolina Probate Judges Association and Court Administration, and will have the option (but not the requirement) to join the South Carolina Probate Judges Association. The inquiring judge seeks an opinion as to whether the person selected as part-time judge can continue his or her probate practice, either in the County in which the judge will serve or in other counties, if he or she does not join the South Carolina Probate Judges Association.
A part-time probate judge can continue his or her probate practice of law under certain conditions.
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. “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. Canon 2 mandates that judges avoid the appearance of impropriety in their activities and conduct themselves “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Rule 501, SCACR.
Here, the part-time judge would preside in Probate Court in a specific County. Thus, while the part-time judge can continue to practice probate law, he or she must not do so in the County in which he or she will also preside as probate judge. However, the part-time judge may continue practice probate law in other counties, as those courts would not constitute courts in which the judge serves or which would have appellate jurisdiction over the court in which the judge serves. With regard to membership in the South Carolina Probate Judges Association, this Committee addressed a similar question in Opinion No. 18-2001, in which retired probate judges resuming the practice of probate law inquired as to whether they could retain their memberships in that association. Relying on Canon 2.B. ( “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others”), we determined that retired judges could not retain their memberships. In our opinion, retaining their memberships in a judicial association while simultaneously returning to the practice of law gave the appearance that those judges had an advantage--through their former judicial offices and association membership--that other attorneys dud not have. That logic would also apply here. For a part-time judge to become a member of a judicial association while simultaneously appearing before other members of that judicial association (albeit in different counties) could create the appearance that the judge has an advantage and would violate Canon 2.B. In addition, it could create the appearance of partiality in violation of Canon 2.A. (“A judge...shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”). Thus, the part-time probate judge who is continuing to practice probate law in other counties should not join the South Carolina Probate Judges Association.
July 15, 2013