May a lawyer who serves as a part-time judge of a court not of record represent criminal defendants in other courts?

Plain-English summary

The committee addressed the situation of lawyers in less-populated counties who serve as part-time municipal judges in courts that are not courts of record, and who are asked to accept appointments to defend indigent defendants in district court or wish to accept employment to represent criminal defendants. The committee held that such a lawyer-judge may act as defense counsel in criminal cases in other courts, and overruled OBA Opinion 253 (1968), which had appeared to hold that even judges of courts not of record should not be appointed to defend indigents where adequate representation was available, and by implication could not accept criminal employment at all. On review, the committee found that the authorities discussed in Opinion 253 did not support that conclusion.

The committee reasoned that the Code of Judicial Conduct, in Canon 5(F) and the compliance section, contemplates that a lawyer serving part-time as a municipal judge may practice in courts other than the one in which the lawyer serves, with no restriction on the type of cases accepted. It noted this is specifically approved by 11 O.S. 1984 Supp. § 27-104, so long as the municipal court is not in a city of more than 200,000 population (in such cities the municipal criminal court is a court of record, and 5 O.S. 1981 § 1 forbids a judge of a court of record to practice law). The committee observed that the OBA and ABA opinions discussed in Opinion 253 generally stood for the proposition that a part-time judge permitted by statute to engage in private practice may do so in other courts, and that the only exception, ABA Opinion 242 (1942), concerned a "police judge" who handled preliminary felony matters that proceeded into the same court system, which the committee found was not a precedent for the situation presented.

The committee concluded that, subject to the applicable portions of the Code of Judicial Conduct relating to part-time judges and the relevant statutes (11 O.S. 1984 Supp. § 27-104 and 5 O.S. 1981 § 1), municipal judges of courts not of record may defend persons accused of criminal conduct in proceedings pending in courts in which the lawyer does not serve as a judge.

Currency note

This opinion was issued in 1985 under the Code of Professional Responsibility and the then-current Code of Judicial Conduct, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions, and before later revisions to the Code of Judicial Conduct. The cited population thresholds and statutory provisions may have changed. 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 also work as a criminal defense lawyer?

A: Yes, where the municipal court is not a court of record. The committee concluded such a lawyer-judge may defend criminal cases in other courts, subject to the Code of Judicial Conduct and the relevant statutes.

Q: What happened to Opinion 253?

A: The committee overruled it, finding that the authorities it relied on did not support its conclusion that judges of courts not of record should not defend indigents.

Q: Does this apply to judges of courts of record?

A: No. The committee noted that 5 O.S. 1981 § 1 forbids a judge of a court of record to practice law, and that in cities over 200,000 the municipal criminal court is a court of record.

Background and rules framework

The opinion interpreted the Code of Judicial Conduct (Canon 5(F) and the compliance section) on part-time judges, alongside 11 O.S. 1984 Supp. § 27-104 and 5 O.S. 1981 § 1, and overruled OBA Opinion 253 (1968). It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Code of Judicial Conduct, Canon 5(F) and compliance section: part-time municipal judges may practice in courts other than their own.

Statutes:

• 11 O.S. 1984 Supp. § 27-104 (part-time municipal judge practice; population limit).
• 5 O.S. 1981 § 1 (a judge of a court of record may not practice law).
• 11 O.S. 1981 § 28-101 (municipal criminal court of record in larger cities).

Other opinions cited:

• OBA Opinion 253 (1968): overruled by this opinion.
• ABA Opinion 242 (1942): a "police judge" should not act as defense counsel in the same court system; distinguished.

See also

• Okla. Bar Ethics Op. 172: Municipal judge practicing law and the firm name
• Okla. Bar Ethics Op. 162: Practicing in a partner-judge's court
• Okla. Bar Ethics Op. 294: Imputed conflicts within a public defender's office

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-302/

Original opinion text

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

Adopted September 13, 1985

INQUIRY

May a lawyer who serves as a judge of a court not of record act as defense counsel in criminal cases filed in other courts?

OPINION

A lawyer who serves as a judge of a court not of record may act as defense counsel in criminal cases in other courts. OBA Opinion No. 253, 39 Okla. Bar J. 530, 523-526 P.2d West’s Okla. Decisions Adv. Op. at 30 (March 14, 1968), overruled.

DISCUSSION

The basis for this inquiry is the situation existing in a number of less-populated counties where lawyers serve as part-time municipal judges in communities whose municipal courts are established pursuant to 11 O.S. 1981, §§ 27-101-27-132, and are not courts of record. (5 O.S. 1981, § 1 forbids judges of courts of record to practice law in any event.) Some such lawyers are called upon to accept appointments to defend indigent defendants in the district court; others wish to accept employment to represent defendants in criminal cases.

The problem arises from OBA Opinion No. 253, 39 Okla. Bar J. 530, 523-526 P.2d West’s Okla. Decisions Adv. Op. at 30 (March 14, 1968), which appears to hold that where adequate representation of indigents is available, even judges of courts not of record should not be appointed to defend such indigents. By necessary implication, this would preclude such lawyers from voluntarily accepting employment in criminal cases in any event. However, a review of opinion No. 253 and the authorities discussed therein reveals that they do not constitute authority for the conclusion reached.

The code of Judicial Conduct in Canon 5(F) and in Section A of the “Compliance” Section contemplates that a lawyer serving as a municipal judge on a part-time basis is permited [sic] to practice in courts other than the one in which the lawyer serves as a judge, with no restriction on the type of cases which may be accepted. This is also specifically approved by 11 O.S. 1984 Supp. § 27-104 so long as the municipal court in question is not in a city of more than 200,000 population. (For cities of more than 200,000 population, the municipal criminal court is a “court of record,” 11 O.S. 1981, § 28-101, and 5 O.S. 1981, § 1 would forbid a judge of such a court to engage in the practice of law.)

The OBA and ABA opinions discussed in OBA Opinion No. 253 generally stand for the proposition that a part-time judge who is permitted by statute to engage in private practice may do so in other courts. The only exception was ABA Opinion 242 (1942), where it was held that a “police judge” who conducted misdemeanor trials and held preliminary hearings in felony cases which then proceeded into the regular court system should not act as defense counsel in other criminal matters in that court system. That does not constitute a precedent for the factual situation presented by this inquiry.

It is therefore held that subject to the lawyer’s compliance with the applicable portions of the Code of Judical [sic] Conduct with the applicable portions of the Code of Judical [sic] Conduct (i.e., those relating to part-time judges), and the relevant statutory provisions (11 O.S. 1984 Supp., § 27-104 and 5 O.S. 1981 § 1), municipal judges of courts not of record may defend persons accused of criminal conduct in proceedings pending in courts in which the lawyer does not serve as a judge.