Practicing law pursuant to military service

At least 8 states have added a comment to their codes of judicial conduct that allows judges to practice law pursuant to military service as an exception to the prohibition on full-time judges practicing law.  (That exception is not in Rule 3.10 of the American Bar Association Model Code of Judicial Conduct, which does have exceptions for acting pro se or, without compensation, giving legal advice to and reviewing documents for family members.)  The 8 states are:  Delaware, Hawaii, Indiana, Iowa, Nebraska, Oklahoma, Tennessee, and Washington.

Advisory committees have also created that exception.  Alabama Advisory Opinion 2003-820 concluded that performing assigned legal duties when on active duty in the armed forces did not create a “significant risk that . . . would erode public confidence in the judiciary” or “any realistic prospect that the advice or advocacy efforts . . . would create a potential appearance of either undue advantage to the judge/advocate or of reciprocal favoritism.”  The opinion noted that “such work is unlikely to become the subject of any litigation, nor would an appearance be created that a judicial position was being exploited.”

Similarly, the Kentucky advisory committee stated that serving as a judge advocate officer in a National Guard or reserve unit does not constitute the practice of law within the meaning of the code because that service has a special nature and the judge is in effect on leave.  Kentucky Advisory Opinion JE-16 (October 1980).  The Illinois judicial ethics committee approved a judge on military reserve duty giving legal advice, serving on military courts, and helping prepare wills, leases, or other documents for military personnel.  Illinois Advisory Opinion 1997-8See also Nevada Advisory Opinion JE2007-7 (judge may serve in the Air Force Reserve as a judge advocate general).

Alaska Advisory Opinion 2007-1 distinguished between types of legal services.  The opinion advised that, while in military service, judges may provide legal services authorized for officers of the Judge Advocate General’s Corps but may not provide services that resemble those provided by civilian attorneys for members of the military, which remain within the prohibition.  Prior to adoption of the exception in the state’s code noted above, Washington Advisory Opinion 2004-8 had made a similar distinction.  See also Virginia Advisory Opinion 2003-4 (cautioning that providing legal assistance that resembles the services provided by civilian attorneys may give the impression that the judge is practicing law and violate the code of judicial conduct).

But see West Virginia Advisory Opinion 2014-18 (judge cannot serve as a JAG officer, citing state constitution and statute as well as code of judicial conduct).

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