May a lawyer who has just become a judge finish the cases he had pending in state courts when he took the bench?

Plain-English summary

A judge wrote that he had recently been appointed to a Superior Court and had a number of cases pending in the State, District, County, and Superior Courts at the time of his appointment, and asked whether it was proper to complete them.

The committee answered that he could not, except as to federal matters. Following its reasoning in Advisory Opinion 166 and the Oklahoma Supreme Court's holding in Chambers v. Central Committee that one elevated to the bench is no longer an attorney, it relied on 5 Okla. Stat. § 1, which bars a person holding a commission as judge of a court of record from practicing as an attorney, but expressly preserves the right to finish business undertaken in the federal district, circuit, or Supreme Court of the United States before election or appointment. Because the statutes make Superior Courts courts of record, the committee concluded a newly elected or appointed Superior Court judge cannot complete cases filed in any Oklahoma District, County, or Superior Court, though he may finish such pre-existing federal-court business. It cited Oklahoma decisions (Dickson, Lilly, Roddie, Knight) and Judicial Canon 31 for the principle that public policy forbids a judge to practice law.

Currency note

This opinion was issued in 1953, 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. Judicial Canon 31 and the statutory provisions cited belong to that earlier framework; the current rules on a judge's status and the practice of law are stated differently today. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 new judge finish any of his pending matters?

A: Only federal ones. The committee said he could finish business he had undertaken in the federal district, circuit, or U.S. Supreme Court before his election or appointment, but not cases pending in Oklahoma District, County, or Superior Courts.

Q: Why the bar on completing state-court cases?

A: Because 5 Okla. Stat. § 1 prohibits a judge of a court of record from practicing as an attorney in the state's courts, and the committee read Superior Courts as courts of record; it added that public policy forbids a judge to practice law.

Background and rules framework

The opinion applied 5 Okla. Stat. § 1 (a judge of a court of record may not practice as an attorney, except to finish pre-existing federal-court business) and Judicial Canon 31. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Judicial Canon 31 (ABA Canons of Judicial Ethics, adopted by the Oklahoma Bar): the practice of law by one holding judicial position in superior courts of general jurisdiction should never be permitted.

Statutes:

• 5 Okla. Stat. Ann. § 1: a judge of a court of record may not practice as an attorney, but may finish business undertaken in the federal district, circuit, or U.S. Supreme Court before election or appointment.
• 20 Okla. Stat. Ann. §§ 151, 161, 201, 241 (Superior Courts as courts of record)

Cases:

• Chambers v. Central Committee of Oklahoma Bar Ass'n, 203 Okl. 583, 224 P.2d 583
• Dickson v. State, 67 Okl. Cr. 365, 94 P.2d 258
• Lilly v. State, 7 Okl. Cr. 284, 123 P. 575
• Roddie v. State, 19 Okl. Cr. 63, 198 P. 342
• Knight v. State, 49 Okl. Cr. 123, 295 P. 409

See also

• Okla. Bar Ethics Op. 151: County judge finishing his old law practice
• Okla. Bar Ethics Op. 166: County judge preparing income tax returns
• Okla. Bar Ethics Op. 86: A sitting judge may not practice law

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-168/

Original opinion text

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

Adopted June 10, 1953

QUERY

A Judge wrote the undersigned Committee stating that he had recently been appointed judge of a Superior Court. That at the time of appointment he had a number of cases pending in the State, District, County and Superior Courts. He asks whether or not it is proper to complete these cases.

ANSWER

As we said in Advisory Opinion No. 166, the judge “in good faith and with the apparent desire to observe the proprieties, requests an opinion which we feel warranted in giving, realizing that we are faced with the question of whether or not this is a question for the Committee on Ethics or the Committee on Unauthorized Practices. If a lawyer Judge is engaging in unprofessional conduct we feel that a question of ethics is involved and should be answered.

We are not unmindful of the holding in Chambers v. Central Committee of Oklahoma Bar Ass’n, 203 Okl. 583, 224 P.2d 583, where the Supreme Court said, “… any such judge is not presently an attorney at law. In Soda v. Marriott, 130 Cal. App. 589, 20 P.2d 758, 759, at page 761, it was expressly pointed out that ‘one elevated to the bench is no longer an attorney at law.’ A judge is precluded from being an attorney at law so long as he holds the judicial position. * * *

He is not practicing law. He has already been stopped from practicing law by going on the bench. * * *”

The law that “stopped him” “from practicing law by going on the bench” is found in the Statutes of Oklahoma. 5 Okl. St. Ann. § 1 reads in part,

“No person shall practice as an attorney and counselor at law in any court of this State * * * who holds a commission as a judge of any court of record, * * ; but nothing herein contained shall prevent any judge of any of the courts of this State from finishing any business by him undertaken in the district, circuit, or supreme court of the United States, prior to his election or appointment as judge; * * .”

The general and special statutes creating Superior Courts make them courts of record. See 20 Okl. St. Ann. ss 151, 161, 201, 241.

In view of the above statutes it is clear that a newly elected or appointed judge of the Superior Court cannot complete cases filed in any District, County, or Superior Court in the State of Oklahoma. He may of course finish “any business by him undertaken in the district, circuit, or supreme court of the United States, prior to his election or appointment.”

The reason for the rule is stated in Dickson v. State, 67 Okl. Cr. 365, 94 P.2d 258, as follows:

“… It is apparent that one of the objects of the adoption of the statute was to separate the judge personally, as well as officially, from all that manner of life so calculated to destroy impartiality of judgment and balance of temper which may and does sometimes, influence the lawyer. ….

………..

There can scarcely be any doubt that public policy forbids a judge to practice law, …..”

The first case in Oklahoma to pass on this question was Lilly v. State, 7 Okl. Cr. 284, 123 P. 575, where the court said:

“This statute expressly prohibits judges of the courts of record in this state from practicing in any of the courts of this state during the term for which they hold such offices, and only permits such judges to finish any business undertaken by them in the various United States Courts.”

In Roddie v. State, 19 Okl. Cr. 63, 198 P. 342, the court said:

“Under the statutes of this state an attorney at law who holds a commission as a judge of any court of record of this state is prohibited from practicing law as an attorney, counselor, or advocate in any of the state courts so long as he occupies such official position. Section 240, Rev. Laws.”

In Knight v. State, 49 Okl. Cr. 123, 295 P. 409, at page 412 the court said:

“There can scarcely be any doubt that public policy forbids a judge to practice law, or to assist, or counsel, to appear, or take part in any way in the trial of the case.”

The general rule is found in 48 C.J.S. Judges § 9, p. 959, where it is said:

“The rights, duties, privileges, and functions of the office of an attorney- at-law, counsellor [sic], or advocate are inherently incompatible with the official functions, duties, powers, discretions, and privileges of a judge. Hence, even in the absence of a statute so providing, a judge cannot act as attorney or counsel in a case pending before him or before the court of which he is a member; and it has been held that a circuit judge cannot act as counsel in any court within the state.”

Judicial Canon 31 reads 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 such case 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. * * *”