Judicial Ethics: Can Judges Practice Law Alongside?

Whether a sitting judge can practice law depends on the jurisdiction and the nature of the legal practice. In the United States, the Code of Conduct for United States Judges prohibits judges from engaging in any activity that creates a conflict of interest or the appearance of impropriety. This includes practicing law while serving as a judge, as it could create a conflict of interest and erode public confidence in the judiciary. However, some states, like Alaska, Virginia, and Washington, allow judges to serve as National Guard judge advocates as long as their role does not create a conflict or resemble the services provided by civilian attorneys. On the other hand, states like Illinois and West Virginia have differing opinions, with Illinois prioritizing military duties over ethical restrictions and West Virginia advising against lawyers serving as judges and JAG officers simultaneously. The answer to whether a sitting judge can practice law is complex and depends on the specific circumstances and the governing Codes of Judicial Conduct in each state or jurisdiction.

Military service as a lawyer

Military lawyers, also known as Judge Advocates, are part of the Judge Advocate General's Corps (JAG) and are responsible for defending the Army and its soldiers in all military legal matters. They handle a wide range of legal issues, including international law, operations law, environmental law, and military and civilian personnel issues. They provide important legal counsel from trial preparation to post-trial actions.

Judge Advocates are commissioned officers in the Army and do not participate in basic training. Instead, they attend the Direct Commission Course (DCC), a rigorous six-week physical, weapons, and leadership course that prepares them for their role as officers. Following the DCC, they undergo the Judge Advocate Basic Training Course, which provides comprehensive training in military law and the JAG Corps' organization, function, and mission.

The JAG Corps offers unique benefits, including student loan repayment of up to $65,000, eligibility for public service loan forgiveness, and benefits under the Post 9/11 GI Bill. Judge Advocates can also maintain their civilian law jobs while serving part-time in the Army Reserve or National Guard.

Regarding the question of whether sitting judges can practice law, there is no uniform answer. It depends on the state and its governing Codes of Judicial Conduct. Some states have explicitly exempted military service from the prohibition on judges practising law, while others allow it as long as the service is "judicial in nature". The main concern is to avoid any conflict of interest or the appearance of impropriety that may arise from a judge also acting as an advocate.

Television appearances

A sitting judge employed in the Texas judiciary was asked to appear in a television program portraying a judge presiding over simulated court proceedings based on actual trials. The credits were to indicate the judge's current position. The judge was also asked to consult with the producers, sharing experiences and advising on proper court decorum and procedures. The answer to both queries was 'no', according to Canon 1 of the Code of Judicial Conduct, which calls on the judiciary to maintain high standards of conduct. Canon 4D(l) states that a judge shall refrain from exploiting their judicial position. Both activities would exploit a judge's position for financial gain.

In the United States, the Code of Conduct for judges states that a judge should avoid impropriety and the appearance of impropriety in all activities. This includes respecting and complying with the law and acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not lend the prestige of their office to advance private interests or allow others to convey the impression that they are in a special position to influence the judge. Public confidence in the judiciary can be eroded by irresponsible or improper conduct, including harassment and other inappropriate workplace behavior. A judge must accept that their conduct will be subject to constant public scrutiny and that they must accept restrictions on their behavior that might be viewed as burdensome by ordinary citizens.

The issue of sitting judges practicing law as members of the Judge Advocate General's Corps (JAG) has also raised questions about the appearance of impropriety and conflicts of interest. Some states, like Alaska, Virginia, and Washington, have allowed judges to serve as JAG officers if their role is limited to duties that do not resemble those of civilian attorneys, such as conducting legal training or advising on purely military issues. Other states, like Illinois, have taken a different approach, citing the supremacy clause of the US Constitution, which does not allow states to restrict military assignments.

While television appearances and consulting for television programs may seem like harmless endeavors, a sitting judge must consider the potential for exploitation of their judicial position and the appearance of impropriety. Maintaining public confidence in the judiciary is of utmost importance, and judges must be mindful of any activities that could create a conflict of interest or erode public trust.

Public scrutiny

The Code of Conduct for United States Judges outlines specific guidelines that judges must follow to maintain propriety and avoid the appearance of impropriety. For example, Canon 2 of the Code states that a judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. This includes refraining from allowing outside influences, such as personal or political relationships, to impact their judicial conduct and judgment. Judges are also expected to avoid membership in organisations that practice invidious discrimination based on race, sex, religion, or national origin.

In addition to these guidelines, judges are also scrutinised for their professional and personal conduct. This includes their behaviour in the courtroom, such as ensuring that they perform their duties fairly, impartially, and diligently, as well as their behaviour outside the courtroom, such as avoiding inappropriate workplace behaviour and harassment. Judges are also expected to refrain from exploiting their judicial positions for financial gain, as this would be a violation of Canon 4D(l) of the Code of Judicial Conduct.

The issue of whether a sitting judge can practice law is a complex one and varies across different states and their Codes of Judicial Conduct. This variation in state Codes reflects the natural conflict between ensuring public confidence in the judiciary by avoiding any appearance of conflict and recognising the primacy of military duties. Some states, such as Alaska, Virginia, and Washington, allow judges to serve as National Guard judge advocates as long as their role does not create a real or apparent conflict. Other states, like Illinois, take a different approach, citing the supremacy clause of the U.S. Constitution, which does not allow the state to restrict military assignments.

Conflict of interest

State Codes of Judicial Conduct aim to maintain public confidence in the judiciary by avoiding any appearance of conflict that may arise from a judge also practising law. This conflict of interest is particularly relevant when considering judges who are also members of the military reserves and are requested to serve as advocates as part of the Judge Advocate General's (JAG) Corps. The tension between judicial and military duties has resulted in differing opinions across states. While some states explicitly exempt military service from the prohibition on judges practising law, others restrict the scope of military assignments to avoid conflicts.

For example, Alaska allows judges to serve as National Guard judges, but only if their role does not resemble the services provided by civilian attorneys, thus limiting the potential for conflict. Virginia and Washington have adopted similar approaches. In contrast, Illinois asserts that the supremacy clause of the U.S. Constitution does not permit the state to restrict military assignments, while West Virginia advises that a lawyer seeking to become a judge cannot simultaneously serve as a JAG officer.

To maintain the integrity and impartiality of the judiciary, judges must also refrain from exploiting their judicial positions for financial gain. This includes not accepting employment that involves appearing in a television program portraying a judge or consulting with producers to share experiences and advise on court procedures, as this would violate Canon 1 of the Code of Judicial Conduct, which calls for maintaining high standards of conduct.

Impropriety

The Code of Conduct for United States Judges includes a section on avoiding impropriety and the appearance of impropriety in all activities. This includes both professional and personal conduct, as a judge must expect to be the subject of constant public scrutiny. Impropriety can include violations, irresponsible or improper conduct, and other inappropriate workplace behaviour such as harassment. Public confidence in the judiciary can be affected by such behaviour.

The Code of Conduct also states that a judge should not allow family, social, political, or financial relationships to influence judicial conduct or judgement. They should not lend the prestige of their office to advance their private interests or those of others, nor give the impression that anyone is in a special position to influence them. A judge should not testify voluntarily as a character witness.

A judge should also not hold membership in any organisation that practices invidious discrimination on the basis of race, sex, religion, or national origin. This includes organisations that engage in any invidiously discriminatory membership practices prohibited by applicable law, as well as arranging meetings at such clubs or using them regularly. Publicly manifesting approval of invidious discrimination also gives the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary.

In addition, a judge is not permitted to exploit their judicial position for financial gain. This would include accepting employment that involves portraying a judge in simulated court proceedings or consulting with producers to share experiences and advise on court decorum and procedures.

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