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June
17, 2003
The Honorable Donald Goodner
District Court Judge
P.O. Box 567
Waldron, AR 72958
RE: Advisory Opinion
2003-01
Dear Judge Goodner:
In your capacity
as a District Judge for Scott County, you have asked four questions
pertaining to the conduct of the city attorney for the City
of Waldron in his dealing with a DWI case pending before your
court. From your description of the circumstances, the city
attorney has advised you that he will not call any witnesses
in a DWI case in which the defendant registered .24 BAC, which
would necessitate you dismissing the case. The proffered reason
by the city attorney for this action is that he doesn’t
want the defendant to lose his CDL license by a conviction.
You first question
whether you are obligated to report the city attorney’s
actions to the Professional Conduct Committee. Canon 3 (D)(2)
provides that a judge who receives information indicating a
substantial likelihood that a lawyer has committed a violation
of the Rules of Professional Conduct should take appropriate
action. Further a judge having knowledge that a lawyer has committed
a violation of the Rules of Professional Conduct that raises
a substantial question of the lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects shall either communicate
directly with respect to the violation with the lawyer who has
committed the violation or report the violation to the Arkansas
Supreme Court Committee on Professional Conduct. A judge should
make this decision on his or her own based on the aforementioned
rules. It is not within the scope of this Committee’s
duties to make this decision for you.
Your second
question pertains to procedure. You question how you should
proceed knowing that the city attorney will intentionally not
call witnesses necessary to convict the defendant.
Canon 3 (B)(8) requires a judge to dispose of all matters promptly,
efficiently and fairly. Again, it is not within the scope of
this Committee’s duties to advise you on how to proceed
in a particular case.
Your third
question pertains to the issue of disqualification on your part
in any future cases involving the city attorney, should you
file a complaint against him. Canon 3 (E) (1)(a) provides that
a judge should disqualify himself in a proceeding in which the
judge’s impartiality might reasonably be questioned including
instances where the judge has a personal bias concerning a party’s
attorney. Generally, the Supreme Court has given great latitude
to judges in making personal decisions as to whether they can
remain impartial in a given situation, barring an obvious example.
Finally, you ask
whether, under Arkansas law, should you withdraw from all future
City of Waldron cases, or may you may appoint a special prosecutor
to handle all future City of Waldron cases until the complaint
against the city attorney is resolved. Your withdrawal is covered
in our response to your third question. The appointing of a
special prosecutor is beyond the authority of this Committee,
as the Arkansas Code of Judicial Conduct does not cover it.
Certainly, if the law allows such an appointment, then that
is to be considered.
Sincerely,
David B.
Bogard
For the Committee
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