Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 01-5

Date Issued: April 27, 2001

Compensation for Judges Pro Tempore Appointed Pursuant to Virginia Code Section 17.1-110

ISSUE

1. May a judge pro tempore agree to serve where the parties' stipulation calls for deferred payment of his or her fee?

Answer: Yes.

2. Once a judge pro tempore has accepted an appointment, may he or she withhold further performance if either party fails to make payment in accordance with the stipulation?

Answer: No.

3. May a judge pro tempore issue a show cause order and hold a party in contempt (civil or criminal) for failure to make payment in accordance with the stipulation?

Answer: No.

4. May a judge pro tempore take any action to collect his or her agreed-upon fee while the case is pending?

Answer: No.

DISCUSSION

The controlling authorities are as follows:

Code §17.1-110 provides, in pertinent part:

When all parties to any cause pending in a circuit court .... shall enter into a written stipulation appointing a judge pro tempore for the trial of the cause and approved by a judge of said court .... and the person appointed shall take and subscribe an oath faithfully to try and determine the issues joined [,] .... [t]he person appointed shall be vested with the same power and authority and shall be charged with the same duties as to the cause in and as to which he is appointed as though he were the regularly elected and qualified judge of such court.

Code §17.1-111 provides, in pertinent part:

[I]t shall be lawful for the parties to agree upon and express in their written stipulation any mode or amount of compensation [for the judge pro tempore].

Canon 2 of the Canons of Judicial Conduct provides, in pertinent part:

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow .... relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge ....

Canon 3 provides, in pertinent part:

A. The judicial duties of a judge take precedence over all the judge's other activities ....

B. (1) A judge shall hear and decide promptly matters assigned to the judge ....

     (5) A judge shall perform judicial duties without bias or prejudice ....

     (8) A judge shall dispose promptly of the business of the court.

Canon 6A (1) provides: While acting as such, a judge pro tempore is required to comply with the Canons as they apply to the case before him.

A judge pro tempore, who has accepted employment as such by stipulation and circuit court approval, holds, with respect to that case, the position and authority of a circuit court judge. This judicial function is not subject to control or review by the circuit court. The stipulation that underlies the appointment is a contract between the judge pro tempore and the stipulating parties, under which he or she agrees to provide judicial services and the stipulating parties may agree to provide compensation. An expectation and agreement for compensation are compatible with an undertaking to serve as judge pro tempore.

A judge pro tempore is obliged to discharge his or her judicial duties promptly and diligently, without regard to his or her personal interests. Withholding performance pending payment is inconsistent with this duty. A contrary provision in the appointing stipulation would be in derogation of the judicial function and should not be undertaken.

A judge pro tempore may not employ his or her judicial status or authority to advance his or her personal interests.

A judge pro tempore may not, during the pendency of the case, abandon his or her impartial posture to engage in adversary proceedings against a party. After the case is concluded, Rules 1:1, Rules of the Supreme Court of Virginia, and the judge pro tempore's judicial duties have been fully discharged, he or she may enforce his or her rights appropriately as a private citizen.

REFERENCES

Canons of Judicial Conduct, Canons 2A, 2B, 3A, 3B(1), 3B(5), 3B(8), 6A(1).

Code of Virginia, §§17.1-110 and 17.1-111.

Rule 1:1, Rules of the Supreme Court of Virginia.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: April 30, 2001