Judges as Lawyers

Abstract

The integrity of the American legal system and thereby of our democracy rests on the shoulders of the judiciary. It is widely understood that the roles of jurist and advocate are incompatible and that the fairness and legitimacy of our court systems require maintaining clear boundaries between those roles. Accordingly, an essential feature of every state’s judicial conduct code is a prohibition on the practice of law by judges. However, many states have carved out exceptions to this prohibition to allow part-time judges sitting in low-level trial courts to supplement their modest judicial compensation by practicing law. The rationale for these exceptions neither cancels nor addresses the problems inherent in allowing judges to practice law. Rather, the real-world impact of the exceptions to the prohibition underscores the importance of the default restriction on law practice by judges. At a minimum, permitting lawyer-judges gives rise to potential conflicts and practical challenges. Other consequences are more unsettling, as when a person holding both roles uses their judicial authority to benefit a private client or to gain other personal advantage. Aside from the potential impact of the dual role in particular cases, such permission creates awkwardness and uncertainty for the attorneys, judges, and litigants with whom the lawyer-judges interact, thereby undermining public confidence in the courts in which they appear as attorneys and sit as judges. Conversely, full-time judges, who do not have their attention, interests, and responsibilities divided by maintaining a separate law practice, can immerse fully in their judicial role. States that continue to allow law practice by judges should amend their respective judicial codes of conduct and, as needed, restructure their judiciary to eliminate any reliance on part-time judges. Such long overdue reforms are essential to protecting our courts, the litigants who appear before them, and the integrity and fairness of our justice system.

Keywords: judges, judicial ethics, professional ethics, access to justice, courts, court systems