December 9, 2021
This responds to your inquiry (21-148) asking whether you, a part-time city judge, may simultaneously serve as an assistant county attorney handling child welfare matters. Presently, you serve as an assistant county attorney representing the Department of Social Services in child neglect and abuse matters. However, you do not handle matters involving juvenile delinquency or persons in need of supervision (or supervise those who do), nor does the county attorney’s office appear in the city court.
We have previously advised that a part-time judge is permitted to practice law, subject to certain limitations (Opinion 19-56). Specifically, we have advised that a part-time judge could serve as a DSS attorney in the same county where they preside, but must disqualify him/herself in any case which involves even an appearance of conflict between the two positions, including cases handled by other members of the DSS staff (Opinion 91-144). However, if the non-judicial position requires numerous recusals, then the judge must choose between the two positions (Opinion 19-56). The judge must keep in mind that they cannot simultaneously hold a position that requires them to prosecute offenses, including quasi-prosecutorial duties (Opinion 15-205).
Accordingly, you may hold the assistant county attorney position, provided you are not called upon to handle (or supervise the handling of) juvenile delinquency or PINS cases or other prosecutorial duties, and further provided your extra-judicial employment does not result in frequent disqualifications.
Enclosed for your convenience are Opinions 19-56; 15-205; 91-144 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Acting Supreme Court Justice