May a lawyer practice in a court where his law partner sits as the part-time judge (justice of the peace or police judge)?

Plain-English summary

A and B were partners in general practice; A held two offices, justice of the peace and police judge. The committee was asked whether A and B could remain partners in all courts other than A's justice and police courts, and whether B could file his own separate (non-partnership) cases in A's justice court.

The committee answered that the partnership itself was permissible, because A, as justice of the peace and police judge, was not prohibited from practicing law in other courts. On the second question, it concluded that B could not practice in A's court. Drawing on the Judicial Canons (Canons 13 and 31) and Canon 29 of the Canons of Professional Ethics, and on a line of ABA opinions, the committee reasoned that a lawyer cannot practice in courts presided over by his partner and retain the public confidence to which the profession is entitled; partners stand in a relation such that no member may accept employment that other members could not properly accept. Since A could not practice in his own court, neither could B. The committee quoted ABA Opinion 104 that the public, knowing of the office associates' intimate relation, might infer some influence, and that both should guard against such an inference, however unfounded.

Currency note

The Oklahoma Bar Association withdrew this opinion by Opinion No. 175, adopted December 9, 1953; it is retained here for research only and is not current guidance. Separately, the opinion was issued in 1952, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions, and before the modern Code of Judicial Conduct. The canons cited here belong to that superseded framework. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyers remain partners at all given that one was a part-time judge?

A: Yes. The committee found nothing unethical in the partnership, reasoning that the part-time judge was not prohibited from practicing law in courts other than his own.

Q: Why could the partner not practice in the judge-partner's court?

A: The committee reasoned that a lawyer cannot practice in a court presided over by his partner and keep the public confidence the profession requires, and that because the judge could not practice in his own court, neither could his partner, since no firm member may accept employment another member could not.

Background and rules framework

The opinion drew on Judicial Canons 13 and 31 of the ABA (a judge should avoid the appearance that anyone can improperly influence him, and should not practice in the court in which he is a judge) and Canon 29 of the Canons of Professional Ethics (upholding the honor and dignity of the profession), together with ABA opinions on partners of part-time judges. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 29 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer should uphold the honor and dignity of the profession and improve the administration of justice.
• Judicial Canons 13 and 31 (ABA): a judge should avoid the appearance of improper influence and should not practice law in the court in which he is a judge.

Cases:

• Gunnels v. Atlantic Bar Association, 191 Ga. 366, 12 S.E.2d 602 (cited within the ABA materials the committee relied on)

Other opinions cited:

• ABA Committee on Professional Ethics Opinions Nos. 33, 49, 50, 103, and 104

See also

• Okla. Bar Ethics Op. 58: Justice of the peace practicing law in his own court
• Okla. Bar Ethics Op. 86: A sitting judge may not practice law
• Okla. Bar Ethics Op. 51: Lawyer appearing before a relative judge

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-162/

Original opinion text

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

Adopted November 12, 1952; Withdrawn by Opinion No. 175 Adopted December 9, 1953

FACTS

A and B are partners in the general practice of law. A holds two offices. one as a Justice of Peace, and one as Police Judge.

The questions are twofold:

1. Can A and B remain partners in all courts other than the Justice of Peace Court and Police Court, and

2. Can B file cases in A’s Justice of Peace Court when such cases are B’s separate cases and not cases of the partnership.

ANSWER

1. Since A, as Justice of the Peace and Police Judge, is not prohibited from practicing law in other courts, there is nothing unethical in A and B remaining partners.

2. Canon 13 of the Judicial Canons of Ethics of the American Bar Association provides in part, “… he (Judge) should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person.”

Canon 31 of said Judicial Canons provides in part,

“In many states the practice of law by one holding judicial position is forbidden. In superior courts of general jurisdiction, it should never be permitted. In inferior courts in some states, it is permitted because the county or municipality is not able to pay adequate living compensation for a competent judge. In such cases one who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.

He should not practice in the court in which he is a judge, even when presided over by another judge, or appear therein for himself in any controversy.”

Canon 29 of the Canons of Professional Ethics provides in part, “… He (lawyer) should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.”

The Canons are based upon the necessity for the maintenance of professional integrity so that the public will have the utmost confidence in that integrity. A lawyer cannot practice in courts presided over by his partner and have the confidence of the public to which the profession is entitled. As said in many opinions of the American Bar Association,

“If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil.”

See American Bar Association’s Opinions 49, 50, 103.

Since A cannot practice law in his own court, B likewise cannot practice therein for the relations of partners are such that no member thereof may properly accept employment which other members of the firm cannot properly accept. See American Bar Association’s Opinions 33, 49 and 103.

In Opinion 104 of the American Bar Association, A and B were not co-partners; A was Police Judge. In holding that B could not practice in A’s Court the opinion says,

“The public, knowing of their intimate relation as office associates, may infer that there is some influence operating in their establishment by reason of which a person arraigned before A is induced to employ B, and against such inference, however unfounded, both A and B should guard themselves. Lawyers should not conduct themselves in such as way as to impair the confidence which the community have in the administration of justice.”