June 21, 1996

The Ethics Advisory Committee has been asked for its opinion as to whether a judge of a full-time justice court, as designated through the Judicial Council's certification process, is therefore a full-time justice court judge prohibited from the practice of law under Canon 4G. The request is a general one and did not address a specific fact situation.

We note initially that the prohibition on law practice by full-time justice court judges occurs by necessary implication of part A of the Code's Applicability section, which exempts part-time justice court judges from, inter alia, compliance with Canon 4G. The Code does not define "part-time" or "full-time." This appears to be deliberate, as an earlier version of the Code as adopted in Utah defined "part-time judge" as a "judge who serves on a continuing or periodic basis, but is permitted by law to devote time to some other profession or occupation and whose compensation for that reason is less than that of a full-time judge." See Utah Code of Judicial Conduct, as adopted March 1, 1974, and revised May 18, 1987. The deletion of a definition does not appear, however, to have been intended to work a substantive change. Thus, in explaining the current Code when it was distributed for comment prior to adoption by the Supreme Court, the Ethics Advisory Committee noted that the prior "definition is broad enough to include both part-time justice court judges and active senior judges. The Ethics Advisory Committee believes that compliance issues for the two types of judges should be dealt with independently." The Committee went on to note that "[the present Code] exempts part-time justice court judges from the same provisions" they had been exempted from under the former version of the Code. Thus, the Committee believes the definition provided in the old Code is at least somewhat instructive in answering the question presented.

The Utah Judicial Council certifies justice courts within the state. The Council has created four classes of justice courts, three classes of which require the court to be open less than eight hours a day, while a fourth class is required to be open "full-time." Judges of full-time justice courts are specifically designated as "full-time" by the Judicial Council's certification standards. The Committee is of the opinion that when the Judicial Council's certification designation states that a judge is full-time for purposes of court certification standards, the judge is presumptively full-time for purposes of the Code of Judicial Conduct.

A judge might rebut this presumption by demonstrating unique circumstances such as the following: the judge does not receive a salary commensurate with full-time professional work; the judge, by contract or in practice, performs substantially less than forty hours in judicial service per week; the employing entity, by contract or in practice, permits or anticipates that the judge will have other employment; or the employing entity does not regard the judicial employment as full-time. Nonetheless, because of the duty to avoid even the appearance of impropriety, a judge of a full-time justice court must resolve any doubt in favor of adherence to Canon 4G.