UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-05
Lawyer L wants to hire the resident probate judge to practice law on a part-time basis in the law firm of Lawyer L. The judge would continue to serve as probate judge and would primarily be doing office type work prior to normal probate court hours, after hours, and on weekends.
Question:
Is it proper for a probate judge who is a lawyer to practice law on a part-time basis? If so, what restrictions would apply?
Summary:
The Code of Judicial Conduct prohibits a full-time judge from practicing law. Accordingly, a law firm may not, under Rule 8.4, hire a sitting probate judge as part-time lawyer.
Opinion:
The question presented might be directed more appropriately to the Advisory Committee on Standards of Judicial Conduct since it questions the propriety of a sitting probate judge also practicing law. However, because this request is from the lawyer who would hire the judge and because Rule 8.4(g) of the Rules of Professional Conduct prohibits a lawyer from knowingly assisting a judge in conduct that violates applicable rules of judicial conduct or other law, we believe the inquiry falls also within the purview of this Committee. In a 1984 opinion, No. 9-1984, the Advisory Committee on Standards of Judicial Conduct did suggest that a probate judge may practice law on a part-time basis. The Committee based that view upon SC Code Ann. 14-23-1110 which provides that a probate judge may not act as a lawyer in any matter pending before the probate court. By negative inference, the Committee assumed that a probate judge could otherwise practice law.
The Committee in 1984 noted, however, that earlier statutory language in 14-23-1110 expressly allowing a probate judge to practice law had been deleted from the current version of that law. We further observe now that 14-23-1010 contemplates that the probate courts shall be open for business "at all reasonable hours" suggesting that the position of probate judge is to be treated as a full-time position. Canon 4(F) of the SC Code of Judicial Conduct (Appellate Court Rule 501) states clearly that "A judge should not practice law." There are no qualifications on that prohibition except when the judge serves only on a part-time basis.
Accordingly, we believe that under current laws and the Code of Judicial Conduct, a probate judge may not serve as a part- time lawyer. A law firm, therefore, that employs a probate judge as a part-time lawyer would violate Rule 8.4(g).