COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 76
Service of State Employees as Part-time United States Magistrate
Judges.
The Committee has been asked to advise judges concerning the propriety
of appointing state or local public defenders or prosecutors as part-time
United States magistrate judges.
The Committee advises that it would be inappropriate to appoint
as part-time United States magistrate judges persons who are simultaneously
serving as state or local public defenders or prosecutors. Similarly, it
would be inappropriate for a part-time United States magistrate judge to
serve as a state or local public defender or prosecutor.
In September 1978, the Judicial Conference adopted Conflict-of-Interest
Rules for Part-time Magistrate Judges. See Guide to Judiciary
Policies and Procedures, Volume II, Chapter III. Rule 3 provides that
a part-time magistrate judge may appear as counsel in criminal actions
in a state court. That provision relates to appearances as private counsel
for the defendant and is permissible so long as it does not interfere with
the performance of duty as a part-time magistrate judge.
Appearances in court of a part-time United States magistrate judge
as a representative of the state or local government, whether as prosecutor
or public defender, implicates two of the canons: Canon 1, that a judge
should uphold the independence of the judiciary, and Canon 2, that a judge
should avoid impropriety and the appearance of impropriety. The dual employment
of the same person in the federal and in state or local judicial systems
would be in conflict with the intent of these canons.
May 9, 1985
Revised January 16, 1998