Kara Sears
The Code of Conduct for United States Judges states that a judge must avoid all impropriety and the appearance of impropriety. This prohibition applies to both professional and personal conduct. In most states, a judge is prohibited from practicing law to avoid any conflict of interest or the appearance of impropriety. However, there are a few states that have explicitly exempted military service as an exception to this rule. Additionally, there are some instances where a judge may practice law outside of their judicial duties, such as when representing themselves or providing legal advice to family members without compensation. In some cases, individuals have reported feeling that their cases were treated unfairly due to a conflict of interest when their judge was also practicing law.
| Characteristics | Values |
|---|---|
| Missouri Supreme Court Rule | A judge shall not practice law |
| Missouri Supreme Court Rule exception | A judge may represent himself or herself and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family |
| Military service exception | A few states have explicitly exempted service for the military as exceptions to the Code provision that prohibits judges from the “practice of law.” |
| Alaska opinion | Judges may serve as a National Guard judge advocate if the judge’s role is limited to performing only those duties that do not resemble services provided by civilian attorneys for members of the military |
| Virginia and Washington opinion | Similar to Alaska opinion |
| Illinois opinion | The supremacy clause of the U.S. Constitution does not allow the state to restrict the scope of military assignments by its ethics rules |
| West Virginia opinion | A lawyer seeking to serve as a judge cannot serve as a JAG officer |
| Code of Conduct for United States Judges | A judge must avoid all impropriety and the appearance of impropriety, including in membership in organizations that engage in invidious discrimination |
| Code of Conduct for United States Judges | A judge should perform the duties of the office fairly, impartially, and diligently, and should not engage in behavior that is harassing, abusive, prejudiced, or biased |
| Code of Conduct for United States Judges | A judge may consult with other judges or court personnel and should make reasonable efforts to ensure that law clerks and other court personnel comply with this provision |
| Municipal court judge | May also practice as a lawyer in the same county |
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What You'll Learn
Municipal judges can practice law
In the United States, the general consensus is that a judge may not practice law. However, there are a few exceptions to this rule, and the specific regulations vary across different states and counties.
For example, in Missouri, a judge may not practice law or serve as a lawyer for a family member, but they may provide legal advice and draft or review documents for members of their family without compensation. Additionally, a judge may represent themselves in all legal matters, including litigation and appearances before government entities.
Another exception applies to military service. A few states, including Alaska, Virginia, and Washington, have provisions that allow judges to serve as National Guard judge advocates or in other military legal roles, as long as these roles do not create conflicts of interest or resemble the services provided by civilian attorneys.
Regarding municipal judges specifically, there is limited information available. However, it appears that in some states, municipal judges may be exempt from the prohibition on practicing law. For instance, in Tennessee, there is a record of a municipal court judge also practicing law in the same county, although this arrangement led to a perceived conflict of interest.
Therefore, while there are exceptions and variations depending on the state and type of judge, the default position is that judges generally may not practice law to prevent conflicts of interest and maintain public confidence in the judiciary.
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Military service as an exception
In the United States, the general consensus is that judges should not practice law. However, at least eight states have added a comment to their codes of judicial conduct that allows judges to practice law as an exception to the prohibition on full-time judges practising law. These states include Delaware, Hawaii, Indiana, Iowa, Nebraska, Oklahoma, Tennessee, and Washington.
The exception is made for judges who are providing legal services as part of their military service. This exception is not explicitly stated in the American Bar Association Model Code of Judicial Conduct, which only has exceptions for acting pro se or, without compensation, giving legal advice to and reviewing documents for family members.
The states that allow this exception have differing opinions on the types of legal services that judges can provide while in military service. For example, Alaska, Virginia, and Washington allow judges to serve as National Guard judge advocates as long as their role does not resemble the services provided by civilian attorneys for military members. On the other hand, West Virginia has advised that a lawyer seeking to serve as a judge cannot serve as a JAG officer.
The range of differing approaches reflects the natural conflict between the obligation to ensure public confidence in the judiciary by avoiding any appearance of conflict and the primacy of military duties.
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Judges must avoid any impropriety
In the United States, the Code of Conduct for judges, initially adopted by the Judicial Conference on April 5, 1973, includes the following:
> Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
The Mississippi Code of Judicial Conduct also includes a similar provision:
> Canon 2 - A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities.
Actual improprieties include violations of law, court rules, or other specific provisions of the Code of Conduct. Impropriety can also occur when a judge's impartiality might be questioned by a reasonable person knowing all the circumstances. For example, a judge should avoid lending the prestige of their office to advance their private interests or those of others. This includes using their judicial position or title to gain an advantage in litigation involving a friend or family member. Judges should also avoid testifying as a character witness, as this may be perceived as an official testimonial.
In addition, a judge's membership in an organization that engages in invidious discrimination on the basis of race, gender, religion, or national origin is considered improper and gives the appearance of impropriety. It would also be a violation for a judge to arrange a meeting at a club that practices such discrimination or to regularly use such a club. Publicly manifesting approval of invidious discrimination on any basis is also considered improper conduct and diminishes public confidence in the integrity and impartiality of the judiciary.
Judges are expected to be aware that they are subject to constant public scrutiny and must accept restrictions on their conduct that an ordinary citizen might view as burdensome. This is because irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior, erodes public confidence in the judiciary.
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Judges can give legal advice to family
While judges are prohibited from practicing law, they are allowed to give legal advice to their family members. However, this advice must not interfere with their official judicial duties or compromise their independence and integrity as a judge. For example, in California, judges are prohibited from providing legal advice that would cause a reasonable person to question their integrity or independence.
In Missouri, a judge may provide legal advice and draft or review documents for a family member without compensation. However, they are prohibited from serving as the family member's lawyer in any forum. This is to avoid any potential conflicts of interest or the appearance of impropriety.
In certain situations, judges may practice law as part of their military service. For instance, in Alaska, judges may serve as National Guard judge advocates, provided their role does not include duties typically performed by civilian attorneys for military personnel, such as drafting legal documents. Other states, like Virginia and Washington, have similar opinions.
It is important to note that the specific rules and ethical guidelines regarding judges practicing law or providing legal advice to family members may vary depending on the state and local regulations. Therefore, it is always advisable to refer to the specific judicial conduct codes and ethical guidelines of the relevant state or jurisdiction.
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Judges can represent themselves
In the United States, a judge is prohibited from practising law. However, there are a few exceptions to this rule. For example, a judge may represent themselves in all legal matters, including litigation and appearances before government bodies. Additionally, a judge may provide legal advice and draft or review documents for family members without compensation.
There are also a few states that allow judges to practise law as part of their military service. For instance, judges in Alaska may serve as National Guard judge advocates, provided their role is limited to performing duties that do not resemble those provided by civilian attorneys for military members. Virginia and Washington have adopted similar approaches. However, states like Illinois and West Virginia have differing opinions. Illinois maintains that the supremacy clause of the U.S. Constitution does not allow state interference in military assignments, while West Virginia advises that a lawyer seeking to serve as a judge cannot simultaneously serve as a JAG officer.
The differing approaches reflect the natural conflict between ensuring public confidence in the judiciary by avoiding any appearance of conflict and recognising the primacy of military duties. Advisory opinions address the question in states without direct Code provisions, concluding that the primary purpose of prohibiting judges from practising law is to avoid conflicts and the appearance of impropriety.
It is important to note that while a judge may choose to represent themselves in court, they may be held to the same standards as a lawyer during the court case. This means that the judge representing themselves must know the purpose of different court appearances, how to introduce evidence, question witnesses, and object to unfavourable evidence.
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Frequently asked questions
No, a judge cannot practice law. However, there are a few states that have explicitly exempted service for the military as exceptions to the Code provision that prohibits judges from practicing law.
Yes, a municipal court judge can practice law in the same county as municipal court is a different court than the District Court.
A judge may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.
The Code of Conduct for United States Judges states that a judge must avoid all impropriety and the appearance of impropriety. This prohibition applies to both professional and personal conduct.
