May a part-time municipal judge who also keeps a private practice represent a client trying to get a platted street in that same municipality vacated?

Plain-English summary

The inquiring lawyer held an appointment as municipal judge in a court not of record, in a municipality whose governing statute (11 O.S.1971, § 958.7(a)) expressly let the judge keep practicing law in other courts. The judge's private client sought to have a platted but unopened street vacated, a matter that could involve appearances before the planning commission, the city council, and the district court.

The committee reasoned that vacating a street necessarily implicates the interest of the public at large, whose designated representatives (the planning commission and city council) decide what best serves the area's residents, and that a municipality may well oppose a street vacation in court. Because a municipal judge administers and interprets the municipality's ordinances as a representative of its citizens, the committee held that the public at large resident in the municipality should be regarded as occupying a position at least equivalent to a client of the municipal judge, so the judge is bound not to accept employment inconsistent with that relationship. It anchored this to Section 24 and Section 31 of the Canons of Judicial Ethics, to Ethical Consideration 5-14 (independence of professional judgment), and to Canon 9 (avoiding even the appearance of professional impropriety).

The committee drew on a line of opinions addressing lawyers in both public and private practice, including Opinion No. 253 (judges and criminal defense), Opinion No. 257 (a partner or associate of a board's attorney appearing before other city bodies), Opinion No. 254 (associate of an assistant district attorney), and Opinion No. 245 (Pardon and Parole Board member). It emphasized that where public employment is involved, a conflict cannot be cured by the client's consent. Because the interests of a private client seeking a street vacation could conflict with those of the municipality's public at large, the committee concluded the municipal judge should not undertake that representation at any stage of the proceedings.

In practice

Under this opinion, a part-time municipal judge in a court not of record who confronts a matter (street vacation) in which the municipality's public may have an opposing interest may not represent the private client at any stage, even though statute permits the judge to practice law in other courts. Per the opinion, the analysis turns on treating the municipality's public as occupying a position at least equivalent to a client of the judge, and on the rule that consent does not cure a conflict where public employment is involved.

Currency note

This opinion was issued in 1974 under the Code of Professional Responsibility and the Canons of Judicial Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the Code of Judicial Conduct, and before the later Ethics 2000 revisions. The conflict-of-interest and judicial-conduct rules have since been recast; subsequent rule amendments or 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: Can a part-time municipal judge keep a private law practice at all?

A: Yes; the opinion notes the governing statute (11 O.S.1971, § 958.7(a)) expressly permitted the judge to practice law in other courts during the term of office. The problem the committee identified was the specific street-vacation representation, not part-time practice in general.

Q: Why was representing the street-vacation client a conflict?

A: Because vacating a street implicates the interest of the public at large of the municipality, which the city's bodies may oppose, and the committee treated that public as occupying a position at least equivalent to a client of the municipal judge.

Q: Could the client consent to the representation?

A: No. The committee held that where public employment is involved, the conflict cannot be cured by the client's consent, citing Opinion No. 257.

Background and rules framework

The opinion applied the Canons of Judicial Ethics (Section 24, against accepting inconsistent duties or obligations that interfere with official functions, and Section 31, on the delicacy of practicing law while holding judicial position), together with Ethical Consideration 5-14 of the Code of Professional Responsibility (independence of professional judgment when clients have differing interests) and Canon 9 (avoiding even the appearance of professional impropriety). It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• EC 5-14 (Code of Professional Responsibility): independence of professional judgment precludes employment that dilutes loyalty to a client where interests differ.
• Canon 9 (Code of Professional Responsibility): a lawyer should avoid even the appearance of professional impropriety.
• Canons of Judicial Ethics, Sections 24 and 31: a judge should not accept inconsistent duties, and practice of law by one holding judicial position requires scrupulous care.

Other opinions cited:

• OBA Opinions No. 253, 257, 254, and 245 (lawyers in public and private practice).
• ABA Formal Opinions No. 186 (1938) and No. 242 (1942).

See also

• Okla. Bar Ethics Op. 253: Court-not-of-record judge defending criminal defendants
• Okla. Bar Ethics Op. 257: Firm of a board's attorney appearing before other city boards
• Okla. Bar Ethics Op. 245: Pardon and Parole Board member representing criminal defendants

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-279/

Original opinion text

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

Adopted June 22, 1974

INQUIRY

May a part-time municipal judge in a court not of record who also conducts a private law practice represent a client seeking to have a platted street in such municipality vacated?

OPINION

The inquiry is answered in the negative.

The lawyer submitting the inquiry holds an appointment as municipal judge in a municipality to which 11 O.S.1971, § 958.7(a) is applicable, providing in part that “nothing herein shall be construed to prevent the judge from engaging in the practice of law in any other court during his tenure of office.” His client seeks to have a platted but unopened street vacated, which he states may involve appearances before the planning commission having jurisdiction, the city council and the district court.

Section 31 of the Canons of Judicial Ethics provides in pertinent part, as follows:

“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 practises 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.”

Section 24 of such Canons provides:

“A judge should not accept inconsistent duties; nor incur obligations, pecuniary or otherwise, which will in any way interfere or appear to interfere with his devotion to the expeditious and proper administration of his official functions.”

Of necessity, in any proposal to vacate a street, the interest of the public at large is involved, and the designated representatives of the public, such as planning commissions and the city council, have the responsibility of making a determination as to the course of action which would best serve the interests of the residents of that area. A municipality may well determine to oppose the vacation of a street in judicial proceedings. See 11 O.S.1973 Supp. §§ 523(B), 524.

A municipal judge is entrusted with the responsibility of administering and interpreting the body of municipal ordinances of his jurisdiction and other relevant and pertinent laws and regulations. He acts in this capacity as the representative of the citizens of the municipality. The public at large resident in the municipality should be regarded as occupying a position at least equivalent to that of a client of a municipal judge, and he is bound not to accept employment inconsistent with this relationship. As stated in Ethical Consideration 5-14:

“Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.”

And a lawyer should avoid even the appearance of professional impropriety. Canon 9. Even if the judge’s employment on behalf of the city is limited to relatively minor criminal matters, as the American Bar Association Ethics Committee said in Formal Opinion No. 186 (1938), holding that a county attorney who represents the county only in civil matters cannot represent criminal defendants:

“(F)or the county attorney charged with public duties to accept employment adverse to this public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer and bring reproach to his profession.”

In Legal Ethics Opinion No. 253, 39 Okla. Bar J. 536 (1968), it was held that it was unethical for a judge of any court to accept employment in criminal cases, with the limited exception that a judge of a court not of record could accept appointment by a higher court as defense counsel for an indigent when adequate representation is not otherwise readily available. This prohibition was deemed to flow from the conflict inherent in discharging judicial duties in the enforcement of the criminal laws on the one hand, and defending private clients against criminal charges on the other, as discussed in American Bar Association Formal Opinion No. 242 (1942), quoted at length in Opinion No. 253.

The possible conflicts of interest encountered by a lawyer engaged in both public and private practice have been the subject of a number of ethics opinions. To cite only a few, it has been held by this Committee that a partner or associate of an attorney representing a board or commission of a city may not appear before other boards or commissions of the city, Opinion No. 257, 40 Okla. Bar J. 1252 (1969); that an associate of an assistant district attorney may not represent criminal defendants or accept any other employment adverse to the state, Opinion No. 254, 39 Okla.Bar J. 539 (1968); and that an attorney who is a member of the Pardon and Parole Board may not represent clients in criminal proceedings, Opinion No. 245, 38 Okla.Bar J. 636 (1967). Further, where public employment is involved, a conflict cannot be cured by consent of the client. Opinion No. 257, 40 Okla.Bar J. 1252, 1254 (1969).

Since the interests of a private client who seeks the vacation of a street could conflict with those of the public at large of a municipality, a municipal judge of that municipality should not undertake the representation of such a private client at any stage of the proceedings.