May a judge draft a contract and deeds for a real estate venture in which the judge owns an interest?

Plain-English summary

The judge and a relative held an interest in land and proposed a venture with a realtor to subdivide and sell it. The judge planned to prepare deeds for the owners and the contract with the realtor.

The Commission said the described drafting did not amount to prohibited law practice under Canon 5F because the judge was securing the judge’s own rights. It relied on Copeland v. Dobbs for the right to attend to one’s own affairs even when others share an interest. It also called for managing outside activities to minimize conflict with judicial duties.

Currency note

This opinion was issued in 1988, after the Alabama Supreme Court’s 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Could the judge draft the venture agreement?

A: Yes. The Commission treated drafting documents for the judge’s own rights as outside the Canon 5F prohibition on practicing law.

Q: Did the presence of a nonfamily realtor change the answer?

A: No. The Commission expressly allowed the described documents to include a third-party nonfamily member when the judge’s own rights were secured.

Background and rules framework

The opinion quotes Canon 5’s prohibition on practicing law, discusses Canon 5F, and compares Alabama Code § 34-3-6(2) with Copeland v. Dobbs on attending to one’s own affairs.

Citations and references

Alabama Canons of Judicial Ethics:

• Canon 5
• Canon 5F

Statute cited:

• Alabama Code § 34-3-6(2), definition of practicing law.

Case cited:

• Copeland v. Dobbs, 221 Ala. 489, 491, 129 So. 88 (1930), attending to one’s own affairs.

See also

• AL Judicial Ethics Op. 88-339: Judge Leasing Property to DUI School

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 88-327
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

88-327
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 29, 1988
The Judicial Inquiry Commission has considered your request for an opinion concerning whether under the Alabama Canons of Judicial Ethics a judge may prepare legal documents including a contract and deeds as part of a joint business venture between himself, his cousin and a realtor. The judge along with his relative holds an undivided one-tenth interest in a parcel of rural property. The judge and his relative wish to enter into a joint venture with a realtor, who will sub-divide and sell the property. The judge will prepare deeds for execution by him and his relative and will draft the contract between the realtor and himself and his relative. It is the opinion of the Commission that a judge is not prohibited from drafting legal documents to include execution by a third party non-family member where the judge is included among the parties whose rights are secured by the documents. Canon 5 of the Alabama Canons of Judicial Ethics governs a judge’s extra-judicial activities. That Canon in part specifically provides that: “A judge should not practice law.” For purposes of regulating the practice of law, the practice of law is defined in Section 34-3-6, Code of Alabama, 1975. In pertinent part, that provision includes the following: “For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to any secular rights ...” Section 34-3-6(2). However, in construing the definition of the practice of law, our Supreme Court has held that: “[A person] cannot be denied the right to attend to his own affairs ... or required to procure a license to practice law in order to do so by reason that others are interested in the same affairs.” Copeland v. Dobbs, 221 Ala. 489, 491, 129 So. 88 (1930). Therefore, based on the decided interpretation of the Supreme Court of Alabama, it is the opinion of the Commission that the 88-327 Page 2 described activity does not constitute the practice of law as prohibited under Canon 5F. However, a judge should be ever mindful of the provisions of Canon 5 and should regulate his own extra-judicial activities so as to minimize the risk of conflict with his judicial duties. Sincerely, JUDICIAL INQUIRY COMMISSION