Can a lawyer about to take office as county judge keep handling collection accounts he took in before taking the bench?

Plain-English summary

A lawyer who had received the nomination (and so the likely election) for county judge asked whether he could continue to handle roughly $15,000 to $20,000 in collection accounts he had taken before taking office and on which no suit had yet been brought. The Oklahoma law provided that a county judge may not practice law except as to cases commenced before he took office.

The Board of Governors worked through the statutes. Section 4093, C.O.S. 1921 barred judges of courts of record from practicing in any court of the state during their term, allowing only the finishing of business in the federal courts; under Lilly v. State, the county court is a court of record. Section 3184 separately barred a county judge from acting as counsel in matters over which he had jurisdiction, and the Board concluded Section 3184 was superseded by the broader Section 4093. The Board noted that the mere collection of accounts is not the practice of law, which begins with the institution of proceedings, so a county judge could not institute and prosecute suits on accounts even if entrusted to him before he became judge. Beyond the statute, the Board concluded that public policy since Section 4093 was that a county judge should give all his time to the office, and that engaging in the collection business would tend to bring the county court into disrepute. It therefore concluded that a county judge should not engage in that business, whether the accounts were entrusted to him before or after election, supporting the conclusion with Canons 4 and 31 of the ABA Canons of Judicial Ethics.

Currency note

This opinion was issued in 1932, 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 long before the modern codes of judicial conduct. The statutes cited here, Sections 4093 and 3184 of C.O.S. 1921, belong to that era and may have been renumbered, amended, or superseded. Treat this page as historical context, not current guidance. Verify against current statutes and the current code of judicial conduct before relying on any specific provision mentioned here.

Common questions

Q: Could a county judge keep running a private collection business in 1932?

A: The Board concluded he should not. Even though collecting accounts is not itself the practice of law, the Board held public policy and the dignity of the court meant a county judge should not engage in the collection business.

Q: Was merely collecting accounts considered practicing law?

A: No. The Board stated the mere collection of accounts is not the practice of law, which commences with the institution of proceedings; but a county judge still could not institute and prosecute suits on those accounts.

Q: Did it matter that the accounts were taken before the lawyer became judge?

A: No. The Board concluded the judge should not engage in the collection business irrespective of whether the business was entrusted to him before or after his election.

Background and rules framework

The opinion construed Section 4093, C.O.S. 1921, which barred judges of courts of record from practicing law in the state's courts during their term, and Section 3184, C.O.S. 1921, which barred a county judge from acting as counsel in matters within his jurisdiction; the Board treated Section 4093 as superseding Section 3184. It relied on Lilly v. State for the scope of Section 4093 and on Canons 4 and 31 of the ABA Canons of Judicial Ethics, which require a judge's conduct to be free from impropriety and the appearance of impropriety and warn against using a judicial position to further professional success.

Citations and references

Statutes:

• Section 4093, C.O.S. 1921 (5 Okl. St. Ann. § 1): a judge of a court of record may not practice law in the state's courts during his term.
• Section 3184, C.O.S. 1921 (20 Okl. St. Ann. § 288): a county judge may not be counsel in matters within his jurisdiction.

Cases:

• Lilly v. State, 7 Okl. Cr. 284, 123 P. 575, construing Section 4093.

Other opinions cited:

• ABA Canons of Judicial Ethics, Canons 4 and 31: a judge's conduct must be free from impropriety and the appearance of impropriety.

See also

• Okla. Bar Ethics Op. 27: Former Judge or Official Representing a Prior Matter
• Okla. Bar Ethics Op. 32: City Attorney's Firm as Special Prosecutor With Civil Claims
• ABA Formal Op. 08-452: Judges' Fundraising for Problem-Solving Courts

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-34/

Original opinion text

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

Adopted July 22, 1932

The Board of Governors is in receipt of the following request for an advisory opinion:

"The Oklahoma law provides that a County Judge may not practice law except in cases commenced before he is conducted into office.

"Please give me your opinion as to whether or not it would be a violation of the law to continue to handle the collections received prior to taking office on which suit has not been brought.

"My reason for asking this question is I came from Kentucky where the law is different along that line and on the face of the returns have received the nomination for County Judge of this county which if correct means election as there is no further opposition.

"Thanking you in advance for your opinion as I have around 15 or $20,000 of collections on my hands all of which I can not collect prior to taking office."

In response:

Section 4093, C.O.S.1921, 5 Okl. St. Ann. § 1, passed by the Territorial Legislature in 1903, provides that

"No person shall practice as an attorney and counselor at law in any court of this State … who holds a commission as 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."

In Lilly v. State, 7 Okl. Cr. 284, 123 P. 575, it was held that the statute expressly prohibits judges of the courts of record of 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. Of course, the county court of the state is a court of record.

However, Section 3184, C.O.S.1921, 20 Okl. St. Ann. § 288, which was passed by the Territorial Legislature in 1890 and was carried over at Statehood, provides:

"A judge of the county court shall not be counsel or attorney in any civil action for or against any executor, administrator, guardian, trustee, minor or other person over whom or whose accounts he has or by law would have jurisdiction, whether such action relates to the business of the estate or not."

Were it not for Section 4093, C.O.S.1921, 5 Okl. St. Ann. § 1, it would seem that county judges would not be prohibited from practicing law in this state except in the instance specified in Section 3184, C.O.S.1921.

But it is apparent that Section 3184 was superseded by Section 4093, and that the law is that county judges are prohibited from practicing law in this state except in the instance referred to in Section 4093.

But, this holding does not answer the inquiry because it has been held that the mere collection of accounts does not constitute practice of law-practice of law commencing with the institution of proceedings. It is clear, however, that a county judge in this state cannot institute and prosecute suits upon accounts even though intrusted to the care of an attorney who subsequently became the county judge.

The Board is of the opinion that since the passage of Section 4093 it was the public policy of the Territory of Oklahoma and of the State of Oklahoma, that a county judge should give all of his time and attention to the duties of his office; and, in view of the fact that the office of county judge brings the encumbent [sic] into a close relationship with the people and the affairs of the people of the county, that it would tend to bring the county court into disrepute were the judge of that court to engage in the collection business. For that reason the Board is of the opinion that a county judge should not engage in that business, irrespective of whether or not the business was intrusted to him before or subsequent to his election to office.

In this conclusion we are supported by the provisions of Canons 4 and 31 of Judicial Ethics adopted by the American Bar Association. (Vol. 56, Reports A.B.A. page 808 et seq.) Canon 4 states that "a judge's official conduct shall be free from impropriety and the appearance of impropriety." Canon 31 states "In such cases (practice of law by a judge) 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."

The Board feels some delicacy in rendering an advisory opinion concerning the propriety of the proposed action of a judge of a court of record inasmuch as there is some doubt as to the Board's jurisdiction, so to speak, concerning the actions of such judges. Inasmuch, however, as the opinion is requested in good faith and with the apparent desire to observe the proprieties, by a member of the State Bar who is about to assume the duties of the office of county judge, it feels warranted in answering the inquiry.