Opinion 26-89

May 7, 2026

Facts/Issue:    A part-time judge and the local prosecutor both maintain outside employment as attorneys with the county’s Department of Social Services (DSS) handling child neglect matters.  Neither supervises the other at DSS, and they maintain separate caseloads, although on “rare” occasions, they might have to cover one another’s appearances.  On these facts, the judge asks if he/she may preside in matters where the local prosecutor appears.

Discussion:     We have said a judge should not preside in cases involving an attorney who is also employed at the same outside agency as the judge, as this could create an impermissible appearance of impropriety.  Thus, as long as they are colleagues at DSS, the inquiring judge must disqualify when the prosecutor appears, unless the disqualification is properly remitted.  If the judge’s outside employment requires excessive disqualifications, the judge must choose between the two positions and resign from one or the other.

Conclusion:     A part-time judge must disqualify when his/her Department of Social Services colleague appears before him/her as a local prosecutor.  If the outside employment results in too frequent disqualification, the judge must choose between the positions.

Authorities:  Opinions 21-148; 92-16; 91-144; see also Opinion 21-22(A).