Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 03-4

Date Issued: November 21, 2003
Amended: May 21, 2004

A judge may serve as an officer in the Judge Advocate General's Corps of the reserve components of the Armed Forces of the United States.

ISSUE

Is a judge practicing law within the meaning of Canon 4(G) when serving as an officer in the Judge Advocate General's Corps of the United State Army Reserve?

Answer: No.

FACTS

A General District Court judge is a commissioned officer in the Judge Advocate General's Corps (JAGC) of the United States Army Reserve. He performs at least forty-eight inactive duty drills and two weeks of active duty training each year. Additional periods of inactive or active duty training may be required.

The Judge Advocate General's Corps provide legal services to the military services. All officers in the corps are commissioned as military lawyers and trained to provide the full complement of legal services required by the branch of service. An officer must be a graduate of an accredited law school and admitted to practice law in at least one state. The officer receives extensive specialized training in military law after being commissioned as a JAG officer.

JAG officers provide a full range of general and specialized legal services to the armed forces. All duties performed by an individual JAG officer are assigned through the military chain of command. The officer may provide legal services to a commanding officer on matters of military justice, administrative and contract law, and the law of war. The officer may act as a military judge. As part of a military commander's legal assistance program, a JAG officer may provide legal services to individual service members. Assistance offered under The Army Legal Assistant Program (Army Regulation 27-3) may give the appearance of the type of service that would constitute the practice of law if rendered by a private attorney licensed in the Commonwealth.

DISCUSSION

Canon 4(G) of the Canons of Judicial Conduct states "[a] judge shall not practice law." Code §§ 17.1-102 and 16.1-69.12 also forbid the practice of law. Those proscriptions derived from Article VI of the Constitution of Virginia , which forbade the practice of law by justices and judges of courts of record. The Supreme Court first addressed the constitutional and statutory prohibitions in Richmond Ass'n of Credit Men, Inc. v. Bar Ass'n, 167 Va. 327, 335, 189 S.E. 153, 157 (1937). The Court characterized the practice of law as a right "in the nature of a franchise from the State, conferred only for merit. . . . No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal. It is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the courts." The duties of a JAG officer do not come within this concept of practicing law.

A JAG officer does not operate as an officer of any Virginia court. Though a JAG officer may coincidentally be admitted to practice law in Virginia, the officer does not function as a Virginia practitioner. Admission to practice in the courts of this Commonwealth has no effect on the legal services performed by a JAG officer even when performed within Virginia. The military command structure determines who is entitled to legal services, and it defines the scope and extent of the advice provided. Performing military duties would not subject the military officer to discipline as an officer of a court of the Commonwealth. As noted in UPL Opinion 108, "the statutory authorization for military lawyers to provide personal legal assistance to members of the military community contained in 10 U.S.C. § 1044 takes precedence over Virginia Unauthorized Practice of Law Rules." Id. (citing U.S. v. Tarble, 13 Wall. 397, 20 L.E. 597, 600-01 (1872)).

Code § 2.2-2805 specifically permits membership in the armed forces of the United States, whether active or reserved, by any person holding judicial office. This statutory authorization permitting judges to serve in the armed forces of the United States contains no exception to performing military assignments that require the specialized training and education required of an attorney practicing law. If Code §§ 17.1-102 and 16.1-69.12 forbid service as a JAG officer, the two statutes are in conflict. "A statute should be construed, where possible, with a view toward harmonizing it with other statutes." Bd. of Supervisors v. Marshall, 215 Va. 756, 761, 214 S.E.2d 146, 150 (1975).

We conclude that a judge may serve as an officer in a Judge Advocate General's Corps without violating the proscription against practicing law within the meaning of Canon 4(G). We stress that the judge must act within the dictates of appropriate military authority. In addition, we caution that a judge must be alert to the fact that certain types of legal assistance resemble the services provided by civilian attorneys. Performing those types of duties may give the impression that the judge is practicing law and could be a violation of Canon 2 of the Canons of Judicial Conduct.

This Opinion is not intended to provide a general definition of "practicing law" for purposes other than determining the applicability of the prohibition in Canon 4(G).

REFERENCES

U.S. v. Tarble , 13 Wall. 397, 20 L.E. 597 (1872)
Bd. of Supervisors v. Marshall , 215 Va. 756, 214 S.E.2d 146 (1975)
Blue v. Virginia State Bar, 222 Va. 357, 282 S.E. 2d 6 (1981)
Richmond Ass'n. of Credit Men, Inc. v. Bar Ass'n., 167 Va. 327, 189 S.E. 153 (1937)
Va. Const., Art. VI
Code of Virginia, § 2.2-2805
Code of Virginia, § 16.1-69.12
Code of Virginia, § 17.1-102
10 U.S.C. § 1044
Canon 2, Canons of Judicial Conduct
Canon 4G, Canons of Judicial Conduct
UPL Opinion 108

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and 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: May 21, 2004