COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 48
Application of Judicial Conference Conflict-of-Interest Rules for
Part-time Magistrate Judges, Including Permissible Office Arrangements.
A part-time United States magistrate judge was formerly a partner
in a law firm of the judge's city. Approximately two years ago the judge
withdrew from the partnership, at which time the judge's name was dropped
from the firm name. Since that time the judge has not participated in the
profits or losses of the law firm. The judge has continued to occupy office
space for which the judge pays the law firm a flat monthly charge. The
judge's name appears on the firm stationery as "of counsel." The judge
uses the law firm's conference room for arraignments and trials conducted
as a part-time magistrate. The judge does not appear to have been assigned
additional duties under title 28 U.S.C. § 636(b).
It also appears that a member of the law firm has been consulted
by a client in a tax matter being handled by the intelligence division
of the Internal Revenue Service. It appears that the intelligence division
is conducting an investigation of the affairs of the client with a view
to determining if there has been tax fraud and, if warranted, the assessment
of a tax fraud penalty.
Thus, two separate questions are presented. Each should be discussed
separately. Before doing so, and as a background for a portion of the discussion,
attention should be called to the fact that part-time magistrate judges
are treated differently than full-time magistrate judges in the Federal
Magistrates Act enacted by the Congress. (28 U.S.C. § 631 et
seq.) The history of the Act would indicate that this was largely
to provide magistrate judge service in areas where the workload is insufficient
for the appointment of a full-time magistrate judge and to upgrade the
part-time magistrate judges, bearing in mind that in many areas under the
commissioner system persons served as United States Commissioners who were
not admitted to the bar and had little or no legal training or experience
except as gained through their commissioner service.
The Congress provided in the Magistrates Act:
(b) Part-time United States magistrates shall render such service
as judicial officers as is required by law. While so serving they may engage
in the practice of law, but may not serve as counsel in any criminal action
in any court of the United States, nor act in any capacity that is, under
such regulations as the conference may establish, inconsistent with the
proper discharge of their office. Within such restrictions, they may engage
in any other business, occupation, or employment which is not inconsistent
with the expeditious, proper, and impartial performance of their duties
as judicial officers.
28 U.S.C. § 632(b).
The problem of these part-time magistrate judges who are active
lawyers in their communities was before the Judicial Conference when, in
March and October, 1969, the Magistrates Committee submitted to the Conference
certain Conflict-of-Interest Rules for Part-time U.S. Magistrates. These
rules, as promulgated by the Judicial Conference, are set forth in the
Guide to Judiciary Policies and Procedures, Volume II, Chapter III.
The part-time magistrate judge is not prohibited, under the Conflict-of-Interest
Rules above cited, from renting space from former law partners as outlined
in the question and he or she can serve as counsel to the law firm and
have his or her name on its letterhead. The judge can use the law firm's
conference room for hearings and trials but cannot use his or her official
office to refer cases either to associates or others.
The second question presents a more difficult problem. We must first
determine whether or not the former partner of the part-time magistrate
judge is an associate within the Conflict-of-Interest Rules and particularly
under Rule 2. The Magistrates Committee submitted these rules to the Judicial
Conference in the form in which they were adopted. The Magistrates Committee
used the word "associates" in these rules as a broad term intending to
include any office arrangement or association existing between two lawyers
other than a partnership. Under the facts here presented, where the former
partner has withdrawn from the firm but continues the office arrangement
outlined, we believe that the former partner who was consulted on the tax
question and the part-time magistrate judge were and are associates.
It must next be determined whether or not the tendered employment
is in a civil action or in a criminal action. If it is a civil action then
under Conflict-of-Interest Rule 1 the associate may appear, assuming the
part-time magistrate judge has not been involved in the matter in connection
with official duties. If it is a criminal case in the district in which
the part-time magistrate judge serves, then Conflict-of-Interest Rule 4
would appear to apply.
The Committee's investigation would indicate that tax fraud or tax
penalty proceedings are not handled uniformly throughout the United States
although they are regarded by the Internal Revenue Service as civil cases.
Usually a proceeding to recover a tax fraud penalty is not started until
the Internal Revenue Service has exhausted the criminal remedies available
or has concluded not to proceed criminally. This is not universally true,
however. It would seem advisable for the part-time magistrate judge or
the judge's former partner to check with the U.S. attorney's office when
such a situation arises as is here outlined, as to whether there is any
intention to proceed criminally in the federal court of the district in
which the part-time magistrate judge serves. In the event the United States
attorney declined to answer the question, the magistrate judge would then
have to assume that a criminal proceeding is in the offing.
A part-time magistrate judge is of course subject to Canon 2 relating
to impropriety and the appearance of impropriety.
If the former partner accepts the employment, certainly the part-time
magistrate judge, in the circumstances above described, should recuse if
any part of the criminal proceedings are presented to him or her for action.
May 27, 1977
Revised January 16, 1998