Question: The Ethics Advisory Committee has been asked about the ethical restrictions placed on a part-time traffic referee.

Answer: A part-time referee may not practice criminal law. The referee also may not practice law at the court or courts which the referee serves. The judges of the district must enter disqualification in all cases in which the referee appears as counsel.

Discussion: A district court has employed an attorney as a part-time traffic referee. The traffic referee has signed a contract stating that the referee will comply with the Code of Judicial Conduct. As a court employee, the actions of the referee also have implications for the judges within the district who must ensure that court employees "observe the standards of fidelity and diligence that apply to the judge." Canon 3C(2). The opinion request notes that the referee "is doing an excellent job serving the citizens of [the county]."

The Code of Judicial Conduct does not have any provisions specifically governing the conduct of referees. The Code also does not contain provisions on part-time judicial officers in the state system. However, the applicability section of the Code contains a provision on part-time justice court judges. The committee finds that this provision is helpful in deciding the ethics restrictions on a part-time referee and the provision should be followed in this circumstance. The restriction on part-time justice court judges states that a part-time judge "shall not practice law in the court on which the judge serves or any court subject to the appellate jurisdiction of that court, or act as a lawyer in a proceeding in which the judge has served as a judge or any other proceeding related thereto."

The Model Code of Judicial Conduct provides guidance on the scope of this prohibition. The applicability section of the Model Code states that "anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including officers such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below." The Model Code then states the restrictions placed on a "continuing part-time judge." The restriction is similar to Utah’s Code.

As a judicial officer, a part-time referee who also has a law practice is restricted in the referee’s practice of law.¹ The part-time referee may not practice law in the court on which the judge serves. This restriction applies whether the practice is civil or criminal. The restriction applies specifically to the court site or sites where the referee works, but not to other court sites within the district.

The committee is also concerned about a referee’s criminal law practice. The Utah Code prohibits part-time justice court judges from criminal law practice. The Code of Judicial Conduct does not contain a similar prohibition. However, the Code requires a judge to comply with the law, and therefore it is also unethical for a part-time justice court judge to practice criminal law.

Other jurisdictions have prohibited part-time judges from practicing criminal law. For example, the New York State Bar in Opinion 181 and Opinion 228 stated that a part-time judge may not practice criminal law. Similarly, the West Virginia Bar stated that a part-time municipal judge could not practice criminal law. In reaching this conclusion the committee stated that "one who assumes to act as a judge one day and as an advocate the next is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system. To permit a judge with criminal jurisdiction to practice criminal law would weaken the confidence of the public in the impartiality and objectivity of the judiciary."

The committee agrees that the appearance of impartiality is very important in this situation. Under Canon 2, a judicial officer must promote public confidence in the impartiality of the judiciary. The referee’s position in resolving criminal cases may be affected by the appearance issues that exist when a referee subsequently represents criminal defendants. At the very least, the practice may appear to compromise impartiality. The referee therefore may not practice criminal law.

In Informal Opinion 96-2 and Informal Opinion 98-14, the committee considered the question of whether a judge must disqualify from cases involving an employee of the judge’s district. In Informal Opinion 96-2, the committee determined that a judge could not hear a case involving an employee of the judge’s district who was a party to a court proceeding. In Informal Opinion 98-14 the committee confirmed that "automatic disqualification is required when the party is an employee of the judge’s district." The committee based its decision on Canon 3E which requires disqualification when "the judge has a personal bias or prejudice concerning a party or a party’s lawyer." The committee also relied on Canon 2B which states that a judge "shall not allow family, social or other relationships to influence the judge’s judicial conduct or judgment." In Informal Opinion 96-2, the committee stated that "these canons require a judge to closely scrutinize his or her involvement in a court proceeding when the judge is familiar with a participant. Scrutiny is not limited to whether the judge feels that he or she could be impartial. The judge must also objectively consider the perceptions of others."

Canon 3E places a party and a party’s lawyer on the same footing for purposes of disqualification. A judge is therefore automatically required to disqualify in cases involving an employee of the judge’s district, whether the employee is appearing as a party or as a lawyer. The restriction applies to all judges within the district. This obligation is placed on the judges and not on the referee. However, the committee recognizes that this restriction will undoubtedly have an impact on the referee’s practice within the judicial district.

In conclusion, the committee determines that a court referee may not practice at the specific court site or sites which the referee serves. The referee may practice at other court sites within the district. The practice may not include criminal law. The judges of that district must disqualify themselves from any proceedings involving the referee. The referee can practice civil law in other judicial districts without the need for disqualification by the judges in those districts.