Substitute judge barred from work for police union

A Virginia lawyer who serves as a substitute judge may not ethically accept an offer to represent a lo­cal police union and its members, a new judicial ethics opinion says.

The police union work, including representation of individual officers in grievance matters, would create both real and perceived conflicts of interest for a substitute judge who regularly hears cases where police officers testify.

The guidance comes in a Sept. 29 advisory opinion prepared by the Ju­dicial Ethics Advisory Committee and approved by the Supreme Court of Vir­ginia.

Substitute judges generally are prac­ticing attorneys appointed by circuit judges to substitute as needed for dis­trict court judges.

The “separate roles of practicing at­torney and substitute judge can present unique challenges,” the advisory com­mittee wrote.

The committee considered a substi­tute judge who, as a lawyer, had been asked to represent a local police union and its individual members. The law­yer’s services would include general counseling, collective bargaining, con­tract administration and representa­tion of members in internal investi­gations, grievances and disciplinary proceedings.

Representing both the collective and individual interests of police officers, “the substitute judge is, or is very like­ly to be, perceived by the public as ‘the lawyer for the local police,’” the commit­tee wrote.

That perception would raise concerns about whether the judge could be fair, unbiased and impartial in matters in­volving local law enforcement, the com­mittee said.

It would be improper for a judge in that position to preside, not only over cases involving union officers, but also cases where any local police officer was involved, regardless of union member­ship, the panel said.

The conflict implicates various provi­sions of the Canons of Judicial Conduct, the opinion states.

• Canon 1 calls for judicial independence.
• Canon 2 requires that a judge avoid impropriety and the appearance of impropriety.
• Canons 3 and 4 require impartiality and an absence of bias.

Another provision of Canon 4 says a judge may not be involved in continu­ing business relationships with those likely to come before the court.

The advisory opinion concluded that the police union lawyer could not sit as a substitute judge for cases involv­ing police officers involved in current grievances, police officers represented in past grievances, and officers who are simply members of the local police union.

The same concerns and public per­ception would exist with non-union of­ficers, as well, the opinion stated.

“Even if the judge can distinguish ‘member officers’ from ‘non-members,’ the public and those persons with mat­ters before the court will not be able to make the same distinction,” the opinion said.

“Given the unique role of law enforce­ment in our legal system, any judge who appears biased in their favor would di­minish the public’s trust in the funda­mental fairness and impartiality of our legal system,” the committee concluded.

The 11-member Judicial Ethics Advi­sory Committee was reestablished last year to render judicial ethics opinions subject to approval of the Supreme Court. The committee also may submit recommendations for amendments to the Canons of Judicial Conduct.

The new committee has issued one other advisory opinion. In April, the court approved an opinion discussing when a judge must step aside from a case in which a lawyer appears as a party or a witness.