The Application section establishes when the various Rules apply to a judge or judicial candidate.
I. Applicability of this Code
(A) Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including but not limited to Justices of the Supreme Court of Appeals, Circuit Judges, Family Court Judges, Magistrates, Mental Hygiene Commissioners, Juvenile Referees, Special Commissioners and Special Masters, is a judge within the meaning of the Code.
(B) All judges shall comply with this Code except as provided below. All judicial candidates for judicial office shall comply with the applicable provisions of this Code.
COMMENT
[1] For the purposes of this Canon, as long as a retired judge is subject to recall, the judge is considered to “perform judicial functions.” The determination of which category and, accordingly, which specific Code provisions apply to an individual judicial officer, depend upon the facts of the particular judicial service.[2] The Code does not apply to an administrative law judge, hearing examiner, or similar officer within the executive branch of government, or to municipal judges.
II. Retired Judges
(A) A retired judge admitted to senior status but who does not engage in the practice of law is not required to comply with Rule 3.8.
(B) A retired judge admitted to senior status but who engages in limited law practice is not required to comply with Rules 3.8 and 3.10.
(C) A retired judge not admitted to senior status but who is recalled for specific cases or specific periods of service shall be deemed a pro tempore part-time judge subject to Application V.
(D) A retired judge, whether or not admitted to senior status and whether or not engaging in law practice, may be employed as a mediator or an arbitrator notwithstanding the provisions of Rule 3.9.
III. Continuing Part-Time Judges
A judge who serves repeatedly on a part-time basis by election or under a continuing appointment, such as a mental hygiene commissioner,
(A) is not required to comply
(1) except while serving as a judge, with Rules 2.10 and 4.1(A); and
(2) at any time with Rules 3.8(A), 3.9, 3.10, 3.11(B), 3.12, and 3.15.
(B) may practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, but shall not act as a lawyer in a proceeding in which the judge has served as a judge in any other proceeding related thereto, or in any matter involving the same subject-matter jurisdiction.
COMMENT[1] A part-time Mental Hygiene Commissioner shall not represent a person in any mental hygiene matters or serve as an attorney in any proceeding related to a case in which he or she has served as a Mental Hygiene Commissioner. A Juvenile Referee may not represent a person in any juvenile matter or serve as an attorney in any proceeding related to a case in which he or she has served as a Juvenile Referee.[2] When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a retired judge no longer subject to recall, that person may not act as a lawyer in a proceeding in which he or she has served as a judge.
IV. Periodic Part-Time Judge
A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but under a separate appointment for each limited period of service or for each matter,
(A) is not required to comply:
(1) except while serving as a judge, with Rule 4.1(A); or
(2) at any time with Rules 3.4, 3.8(A), 3.9, 3.10, and 3.11(B);
(B) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
V. Pro Tempore Part-Time Judge
A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard is not required to comply:
(A) except while serving as a judge, with Rules 2.4, 3.2, and 4.1(A); or
(B) at any time with Rules 3.4, 3.8(A), 3.9, 3.10, and 3.11(B).
VI. Time for Compliance
A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those judges to whom Rules 3.8 and 3.11 apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year after the Code becomes applicable to the judge.
COMMENT[1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in that activity for a reasonable period but in no event longer than one year.
Clerk’s Notes on ApplicationThe Application section is a blend of the 2007 Model Code and provisions that are specific to West Virginia. Parts I, II, and III are based largely on provisions specific to West Virginia, while parts IV through VI are based largely on the 2007 Model Code, with some revisions.