January 01, 2017 Judicial Ethics

Can Sitting Judges “Practice Law” as Members of the Judge Advocate General’s Corps?

By Marla N. Greenstein

As this Judges’ Journal focuses on issues affecting military veterans, it is important to acknowledge that many veterans are sitting state court judges. Many current judges serve in the military reserves and are requested by the military to serve as advocates as part of the Judge Advocate General’s (JAG) Corps. But can sitting judges fulfill their military obligations in this way? There is a wide range of answers to this question depending on where the judge sits. States differ tremendously in how they view this question under their governing Codes of Judicial Conduct. And here the ABA Model Code does not provide guidance.

There are a few states that have explicitly exempted service for the military as exceptions to the Code provision that prohibits judges from the “practice of law.” The vast majority of Codes do not address the issue, or, like the commentary to the North Dakota Code (Rule 3.10 Comment 2), allow the service if the service is “judicial in nature.”

Advisory opinions address the question in states that have not addressed the issue directly in their Codes. When faced with the question in my state, our commission looked at the purpose behind the prohibition on the practice of law and determined that it was primarily to avoid conflicts for the judge, but that it also serves to avoid the appearance of impropriety that could be created where a judge is both a judge and an advocate. Concluding that judges in Alaska may serve as a National Guard judge advocate if the judge’s role is limited to performing only those duties that do not resemble services provided by civilian attorneys for members of the military, this opinion limits the service to service that does not create a real or apparent conflict.1 The opinion specifically lists activities that would not be allowed (such as assisting military personnel in drafting legal documents) as well as those that are allowed (such as conducting legal training or advising on a purely military issue). Virginia and Washington opinions have taken a similar approach.2

Other states have adopted extreme differing opinions. Illinois has taken the position that the supremacy clause of the U.S. Constitution does not allow the state to restrict the scope of military assignments by its ethics rules,3 while West Virginia has advised that a lawyer seeking to serve as a judge cannot serve as a JAG officer.4

The range of these differing approaches reflects the natural conflict of equally compelling obligations. State Codes of Judicial Conduct are clearly concerned primarily with ensuring public confidence in its judiciaries by avoiding any appearance of conflict that service as a lawyer could create. But those who draft these Codes and those who author the corresponding advisory opinions are also aware of the primacy of military duties. State court judges who continue service to our country through their military service understand that tension the most.

Endnotes

1. Alaska Advisory Op. #2007-001 (Jan. 22, 2007).

2. Va. Advisory Op. 2003-4; Wash. Advisory Op. 2004-008.

3. Ill. Op. 97-8; see also Ky. Judicial Ethics Op. JE-16 (Oct. 1980).

4. W. Va. Advisory Op. 2014-18.