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Tuesday, March 20, 2012

Ind. Courts - "Dual role of Marion County small claims court judges raises flags"

A story in the Indianapolis Star yesterday, reported by Carrie Ritchie, is subheaded "Judges who also work as attorneys lead to concerns about impartiality." Some quotes:

[Allowing] small-claims court judges [to] work as attorneys in one another's courts could give the appearance of impropriety.

While it's unclear whether rules governing judges' conduct prohibit it, having judges with dual roles can cause several problems, in particular a perception that they will have an unfair advantage in court, Kitley and others in the legal profession say.

"It's a bad idea for these guys to be appearing before their brethren," said Charles Geyh, a professor of law at Indiana University-Bloomington's Maurer School of Law and an expert on judicial ethics and conduct.

But questions over how it looks haven't stopped some small-claims court judges in Marion County from doing it. An Indianapolis Star review of court records found dozens of cases in which small-claims judges have represented clients in one another's courts.

Complaints about such practices are among many issues in Marion County small-claims court being studied by a task force appointed by the Indiana Supreme Court. The Indiana Commission on Judicial Qualifications has never issued a formal opinion on small-claims court judges practicing in one another's courts. * * *

[Franklin Twp. Judge] John Kitley said he asked the Judicial Qualifications Commission if he could practice in small-claims courts. The commission's response made him think it was a "gray area," and he decided it would be best not to. "I think it appears inappropriate," Kitley said, "and therefore I never did it."

Kitley has since quit practicing law and now considers himself a full-time judge.

Whether small-claims court judges are violating professional rules of conduct by practicing as attorneys in one another's courts depends on whether their courts are considered to be separate or part of the same court.

Marion County has nine small-claims judges and courts, one for each of the county's nine townships. All of the judges are elected, and most are considered part time.

No other Indiana county has that setup.

Part-time judges are allowed to practice law, according to the Indiana Code of Judicial Conduct, but there are restrictions on where they can practice. They can't appear as lawyers in the courts in which they are a judge.

That is where the interpretation of the code gets tricky. The small-claims courts all have the same role -- to handle civil cases involving $6,000 or less -- and follow the same rules. The judges meet regularly to discuss various issues, including how to make sure court procedures are uniform.

That lends credibility to the argument that they are all one body and the judges shouldn't appear as attorneys in one another's courts, Geyh said.

"It's not as though these judges are divorced from each other," the IU law professor said.

ILB: A related issue that goes beyond Marion County involves the law practices of part-time judges. City judges often practice part-time. See this 1974 Res Gestae article headed "Ethics committee adopts opinions relating to city judges, their law partners or associates."

Posted by Marcia Oddi on March 20, 2012 09:44 AM
Posted to Indiana Courts