Is it proper for a lawyer to appear before a judge who is a close relative, such as the judge's father or the father's law firm?

Plain-English summary

T was a county judge whose father was a member of the firm XYZ. The inquirer asked whether it was proper for the father, or any member of the father's firm, to appear in cases before T, and whether it was proper for them to appear before T in probate cases where the fee is fixed by the county judge.

On the first question, the Board found there was no established canon or rule of ethics specifically condemning the practice, but that it approaches so closely to the line of strict propriety as to call on both the father and son for the most careful exercise of caution so that no party feels there is a blending of judicial discretion with family affection or interest. The Board quoted Section 13 of the ABA Code of Judicial Ethics (a judge should not act where a near relative is a party, and should not let his conduct justify an impression of improper influence) and Section 4 (a judge's official conduct should be free from impropriety and the appearance of impropriety), reading the reference to "or other person" to bring the related lawyer within the caution. The Board said that, while not condemning the practice, it should be discouraged and in every event exercised with extreme caution.

On the second question, about probate matters where the judge fixes the fee, the Board said the same reasoning applies, with the added point that if any controversy arises over the amount of a fee between the father's firm and an administrator, executor, or guardian, the judge should disqualify.

Currency note

This opinion was issued in 1933, 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 modern codes of judicial conduct. Judicial disqualification for relationships with counsel is governed today by the current Oklahoma Code of Judicial Conduct and Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Did any rule flatly prohibit a lawyer from appearing before a relative judge?

A: No. The Board found no established canon or rule specifically condemning the practice, but said it approaches the line of strict propriety and should be discouraged.

Q: What did the Board expect of the lawyer and the judge?

A: The most careful exercise of caution, so that no party to the litigation could feel there was a blending of judicial discretion with family affection or interest, consistent with Sections 4 and 13 of the ABA Code of Judicial Ethics.

Q: What about probate cases where the judge sets the fee?

A: The same reasoning applied, but the Board added that if any controversy arose over the amount of a fee between the relative's firm and an administrator, executor, or guardian, the judge should disqualify.

Background and rules framework

The opinion did not rest on a numbered Rule of Professional Conduct. It drew on the ABA Code of Judicial Ethics, quoting Section 13 (a judge should not act in a controversy where a near relative is a party and should avoid the impression of improper influence) and Section 4 (a judge's official conduct should be free from impropriety and the appearance of impropriety). The Board extended the appearance-of-impropriety concern to the related lawyer through the phrase "or other person."

Citations and references

Rules of Professional Conduct:

• The opinion does not cite a numbered Rule of Professional Conduct; it relies on the ABA Code of Judicial Ethics.

Other authorities cited:

• ABA Code of Judicial Ethics, Section 13: a judge should not act where a near relative is a party.
• ABA Code of Judicial Ethics, Section 4: a judge's conduct should be free from impropriety and the appearance of impropriety.

See also

• Okla. Bar Ethics Op. 34: Incoming County Judge Continuing a Collection Business
• Okla. Bar Ethics Op. 27: Former Judge or Official Representing a Prior Matter
• Okla. Bar Ethics Op. 44: Representing Two Sets of Heirs With Conflicting Claims

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-51/

Original opinion text

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

Adopted March 24, 1933

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

"We would like to submit to you the following proposition and have you give us an advisory opinion.

T is County Judge; his father is a member of the firm of XYZ. Is it proper for the father of T to appear in a court presided over by T in the trial of cases, and is it proper for any member of the firm of which T's father is a member to appear before him in the trial of a case?

Further, is it proper for the father of T, or a member of the firm to which he belongs, to appear before T in a probate case, where the fee is fixed by said County Judge, and what would be the consequence of a practice of this kind being continuously carried on?"

The Board is of the opinion that there is no established canon or rule of ethics by which the practice suggested in the first section of the inquiry is specifically condemned. However, it approaches so closely to the line of strict propriety as to call upon both the father and son for the most careful exercise of caution in order that no party to the litigation or proceeding may in the slightest degree feel that there is a blending of judicial discretion with family affection or interest.

As stated of the Judge in section 13 of the Code of Judicial Ethics adopted by the American Bar Association:

"He should not act in controversy where a near relative is a party; he 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."

While this rule primarily involves the parties to the proceeding, yet, by the use of the words "or other person," it is manifest that the lawyer might be included in this caution against the appearance of judicial impropriety.

As stated in Section 4 judicial code of ethics–American Bar Association:

"A judge's official conduct should be free from impropriety and the appearance of impropriety;__"

While not condemning, we feel that the practice should be discouraged and, in every event, exercised with extreme caution.

Concerning the second section of the inquiry, the Board is of the opinion that the same course of reasoning is applicable as to the first but with the additional suggestion that, if any form of controversy, as to the amount of a fee, is involved between the attorney or the firm, of which the father is a member, and the administrator, executor or guardian, then, in such a case, it is our opinion that the Judge should disqualify.