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April 9, 1999
Judge Ralph C. Ohm
626 Malvern Avenue
Hot Springs, AR 71901
RE: Advisory Opinion 99-02
Dear Judge Ohm:
Your letter informs the committee that for six years you have served
as the civil attorney for Garland County. In this capacity, you handle all civil matters
in which Garland County needs representation or advice. In particular, you defend all
civil litigation in which Garland County is named as a party, you provide advice and
opinions to County employees and elected officials, and you attend all Quorum Court
meetings to answer questions by various members of the Quorum Court. Lastly, you assist in
drafting some of the ordinances and/or reviewing ordinances on behalf of members of the
Quorum Court.
In addition to that on-going position, you have recently been
elected to serve as a municipal judge. Ark. Code Ann. '16-17-108 (ww) permits the Quorum
Court of Garland County and the Board of Directors of the City of Hot Springs to create
two judgeships for the Hot Springs Municipal Court. You ask whether the Code of Judicial
Conduct permits you to serve as the Municipal Judge (Division II) and, in your capacity as
a private attorney, as the civil attorney for Garland County.
You have also stated that you have entered into an agreement, that
you will preside over city cases, and that the other judge (Division 1) will handle all
cases involving county ordinance, county officials, the Garland County sheriff=s
department, and the Arkansas state police. (We are unable to comment on whether this is a
fair or equitable distribution for the workload.)
However, despite your arrangement, the Committee remains troubled by
this situation. Canon 1 requires judges to uphold the independence of the judiciary.
Threats to your judicial independence are not merely theoretical. For example, the statute
sets forth a salary range for the municipal judge, with the governing bodies of the
city and council setting the salary. In theory you might be advising the quorum court on
the salary to set for yourself. Conversely, a legislative body upset with your judicial
rulings might take action against you in your role as county attorney. Canon 2 requires
judges to avoid even the appearance of impropriety. In light of the close relationship
necessary between a county attorney and county officials, the status of a judge who is
compensated by the county and simultaneously is employed by the county as a private
attorney can certainly appear improper in the eye of the public.
We cannot locate any controlling or even helpful authorities.
Arkansas Attorney General Opinion 87-469 found no conflict in an Attorney serving as a
city attorney and a municipal judge at the same time, but that opinion involved an
attorney who was a city attorney in one county and a municipal judge in another county.
One treatise emphasizes the danger of a part-time judge maintaining a concurrent law
practice; AKeeping the functions of a judge disassociated from those of an attorney
requires an abundance of caution.@ Shaman, Lubet and Alfini, Judicial Conduct and
Ethics (2nd ed.1995) Section 4.16.
In light of the lack of clear guidance, the proliferation of
continuing part-time judges in Arkansas, and your obvious attempts to avoid possible
conflicts, we cannot prohibit your holding both positions. However, we conclude that
holding such dual roles in the same county is both unwise and imprudent. Our advice would
be that you step down as the county attorney. Should you decide to continue in that
position, you should be particularly alert to potential conflicts, with the resulting need
to recuse as a judge or to refrain from acting as the county attorney in particular
matters.
Sincerely,
Howard W. Brill
For the Committee
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