Georgia Court of Appeals candidate Ken Hodges says, if he wins the election, he will not give up the State Bar of Georgia presidency, even though wearing both hats is unprecedented and could pose some potentially thorny ethical issues.
Hodges, who is facing off against Atlanta attorney Ken Shigley in the state appeals court’s only contested race—has been president-elect of the State Bar of Georgia for more than a year and is slated to take over in June.
He has been campaigning for the state judicial post since March 2017. If he wins, he will become the first judge to lead the bar.
Hodges sees no conflict between his duties as a judge and president, although the state Code of Judicial Conduct warns judges to avoid even the appearance of impropriety and directs them to regulate their extrajudicial activities to minimize the risk of conflict with their official duties. The code also directs judges not to undertake extrajudicial assignments that might cast doubt on their capacity to impartially decide any issue or interfere with their effectiveness and independence.
Hodges said if he wins, he will not take judicial office until Jan. 1, 2019. By then, he will be seven months into his term as bar president. “Most off the real work will already have been done,” he said.
The bar licenses the state’s lawyers, all of whom are required to join before they can appear in court. The bar, which is supervised by the state Supreme Court, enforces the Georgia’s professional code of legal ethics and recommends disciplinary action for lawyers who violate it.
The bar also serves as an advocate for the state’s more than 47,000 lawyers and judges who make up its membership.
Hodges also said he has had “a frank and open discussion” with the bar’s executive committee, on which he sits, and with the state Supreme Court. He said the issue also has been raised with the state Judicial Qualifications Commission, the judiciary’s ethical oversight agency. Hodges said he did not raise the issue with the JQC and doesn’t know who did.
“The JQC has looked at it. The Supreme Court has analyzed it, and the executive committee has discussed it. There has been no conclusion from any of those three that it cannot be done,” he said. “In fact, it’s not prohibited in any way by any rules or regulations” now in place in Georgia, he added.
Hodges also said some states allow judges to simultaneously serve as their state bar’s president, but he couldn’t give The Daily Report any examples, saying the state bar had the information.
Hodges said he had conversations with Justice Keith Blackwell, the high court’s liaison to the bar, and Justice Harold Melton about the dual roles. He said both advised him “they think it can be done,” as long as he steers away from fundraising for the bar and honors judicial restrictions on lobbying.
But JQC executive director Ben Easterlin said, “There has been no request for a formal advisory opinion on that matter.”
Easterlin said he could not comment on whether anyone has complained to the JQC about Hodges’ intentions. As a judicial candidate, Hodges is already subject to the state Canon of Judicial Ethics. JQC rules and legislative fiat dictate that the state watchdog agency operates largely in secrecy.
Asked if the high court and Blackwell and Melton, in particular, had signed off on Hodges’ plans, spokeswoman Jane Hansen said in an email that, “The various justices routinely consult with bar leadership about current and future challenges for bar governance, related to the Court’s regulatory oversight of the State Bar. But they certainly don’t dispense personal legal advice to anyone.”
She did not elaborate further or respond to follow-up questions.
Hodges said the limitations on lobbying and fundraising, if he is elected to the bench, will preclude him from participating in the bar’s annual campaign to raise funds for Georgia’s legal aid organizations. But, he said, “I can have the past president or the president-elect do it.”
Hodges also suggested that, even if he is elected, “There are very few instances where a judge can’t be down at the Legislature lobbying. The state bar is not in the business of doing anything that isn’t for the advancement of the legal profession. The Judicial Code of Conduct encourages that. There is not a blanket rule that—quote—lobbying is a conflict. … There is nothing about being a judge that says you lose your constitutional right to go down and be an advocate for something.”
Hodges also said the bar’s board of governors, not the president, decides what positions the bar may take on political issues.
“The president can’t unilaterally act to endorse a piece of legislation,” he said. That board, he added, “has at least a dozen judges on it already.”
Hodges said his plans have also been “thoroughly vetted” by the bar’s 14-person executive committee on which he sits as president-elect.
“We had a number of discussions,” he said. “The executive committee decided not to take action that would change the status quo. The status quo does not prohibit it,” he said.
Again, Hodges said he didn’t raise the matter with the bar. “There is not anything prohibiting it, so why would I raise it?” he said.
Bar President Buck Rogers said the executive committee has determined duel service is not prohibited, but that the bar is mindful of the code of judicial conduct and is committed to ensuring compliance with the code by delegating certain duties as appropriate.
Hodges’ opponent, Ken Shigley, served as state bar president from 2011-2012.
“There is no per se rule against it,” Shigley said of Hodges’ plans to lead the bar, even if elected to the bench. But, he said, “I think there are concerns about implicit conflicts in the roles.”
“As bar president, you are acting on behalf of all the members in the legal profession, often in an advocacy role. As a judge, you’re a neutral working for the people of the state of Georgia. You might not wind up with an actual conflict. He probably thinks he can avoid it. … I’m just skeptical.”
Another problem, Shigley explained, is “bandwidth.”
Shigley said the job is labor-intensive and that it took time away from his private legal practice. “I was on my own dime doing all this,” he said, while Hodges will be on the public’s time.
“There’s always something that comes up that you have not planned for,” Shigley said. “Everybody thinks they can delegate most of the job and show up and just speak a few times. It rarely, if ever, works out that way.”
“I was no exception,” Shigley said. “I thought I could.” But he said he found himself working 80 hours a week, half on bar business and half on his practice. “It was demanding. There were things I could not delegate.”
“I think you can be a figurehead or a spokesmodel in both roles,” Shigley said. “But I don’t think you can do both roles as intensely or as well as you would want to do either of them if you try to do them both at the same time.”
Hodges said he isn’t worried. When he was Dougherty County district attorney, Hodges said he also served stints as president of the state district attorney’s association and chairman of the state Prosecuting Attorneys Council, while also serving on a number of nonprofit boards.
“It’s a matter of time management,” he said. Hodges said he splits his law practice between Albany and Atlanta. During that three-hour commute, he said, “I get a lot of things done on the telephone, no matter where I am.”
On Thursday, just five days before the state primary, Hodges said he was balancing campaigning with handling bar duties in Savannah for current bar president Buck Rogers. He said he “brought greetings to the organization on behalf of the state bar. … I will do it at dinner in Valdosta … tonight,” he added.
He insisted that at both events where he stood in for Rogers, “I never mentioned I was running.” But, he said, “If I am asked a question about the campaign, I will answer it.”
Hodges also said he suspects the time demands associated with an appellate court judgeship will “not be as heavy as my law practice.”
“I will make sure that the work of the courts is done. I will make sure the work of the bar is done. Rest assured, if any time I ever believe the work of the court is suffering from me being bar president I will step down as bar president. … There will never be a time I will not do my job on the court. That will not happen.”