Can a justice of the peace who is also a lawyer draw pleadings and run a collection business in his own court?

Plain-English summary

An attorney described a justice of the peace ("A") who was also a lawyer and who generally let litigants file suits, especially collections, in his court, drawing up the pleadings and papers needed to procure service. A also let suits be filed without a deposit for costs, with the constable working unpaid until the case ended favorably to the plaintiff. The effect, the inquirer said, was that A ran a collection agency in competition with the local bar, with a public impression that one needed no lawyer in A's court because he would take care of the plaintiff's interests. The inquirer asked whether A's conduct was the practice of law.

The Board concluded A's activities were indefensible because they constituted the practice of law. It cited Canon 31 of the ABA Canons of Judicial Ethics, that a judge should not practice in the court in which he is a judge, and that where a judge of an inferior court is permitted to practice he must be scrupulously careful not to use his position to further his professional success. The Board quoted Section 1885 of the Oklahoma Statutes 1931 (21 Okl. St. Ann. § 560), which makes it a crime for a justice of the peace to office with an attorney, act as attorney or agent for a party before his court, be interested in the result of an action in his court, or take debts for collection and sue on them in his own court. The Board added that the justice of the peace would be disqualified by his pecuniary interest in the decisions to be rendered, citing its Advisory Opinion No. 8.

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. The statute cited (Section 1885, Oklahoma Statutes 1931) reflects 1931 law that may since have been amended or recodified. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific principle mentioned here.

Common questions

Q: Was the justice of the peace practicing law by drafting litigants' pleadings?

A: Yes. The Board concluded his activities constituted the practice of law and were indefensible.

Q: What judicial-ethics rule did the conduct violate?

A: Canon 31 of the ABA Canons of Judicial Ethics, that a judge should not practice in the court in which he sits and must not use his position to further his professional success.

Q: Was the justice of the peace disqualified from the cases he handled?

A: Yes. The Board said he would be disqualified by his pecuniary interest in the decisions to be rendered, and noted a statute barring a justice of the peace from collecting debts through his own court.

Background and rules framework

The opinion relied on Canon 31 of the ABA Canons of Judicial Ethics and on Section 1885 of the Oklahoma Statutes 1931 (21 Okl. St. Ann. § 560), which criminalized a justice of the peace officing with an attorney, acting as attorney or agent before his court, holding a pecuniary interest in cases before him, or using his court to collect debts. It treated the conduct as both the unauthorized mixing of judicial office with law practice and a disqualifying pecuniary interest.

Citations and references

Statutes:

• Section 1885, Oklahoma Statutes 1931 (21 Okl. St. Ann. § 560): penalties for a justice of the peace acting as attorney, holding a pecuniary interest in cases before his court, or collecting debts through his own court.

Other authorities cited:

• ABA Canons of Judicial Ethics, Canon 31: a judge should not practice in the court in which he is a judge.
• Oklahoma State Bar Advisory Opinion No. 8 (1931 Annual Reports, p. 173): costs deposits and pecuniary interest.

See also

• Okla. Bar Ethics Op. 47: Firm's Standing Arrangement With a Justice of the Peace
• Okla. Bar Ethics Op. 34: Incoming County Judge Continuing a Collection Business
• Okla. Bar Ethics Op. 51: Lawyer Appearing Before a Judge Who Is a Close Relative

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-58/

Original opinion text

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

Adopted October 27, 1933

The Board is in receipt of the following inquiry:

"There are some questions presenting themselves to my mind which may not come directly under your jurisdiction, but am confident that the same, or similar questions have arisen in other parts of the State and that you can give some help on the subject.

There is in ………. a Justice of the Peace who is also a lawyer. For convenience I will refer to him as "A". It is his general practice to permit litigants to come into his court and file suit for various forms of relief, and especially collections. He draws up the pleadings and all papers necessary to procure service:

1. In your opinion does such conduct on the part of A come within the definition of practicing law?

2. A permits the above mentioned suits to be filed without the deposit of costs, and the Constable does his work without receiving any remuneration until the end of the litigation has been brought to a conclusion favorable to the plaintiff.

To make a long story short. A runs a collection agency in competition with the lawyers of …………. It is quite generally considered in certain circles that one needs no lawyer in A's court and that he will take care of the plaintiff's interests. The other Justice of the Peace conducts his office in a businesslike manner, requires a deposit on the suits filed, and according to my way of thinking, operates his office as it should be.

The path of a practicing attorney is certainly narrow and steep, and the Board of Governors requires much of us. It certainly should require no less of Judges. I am taking this step upon my shoulders and will appreciate any information you can give me on the subject."

In response:

The activities of the Justice of the Peace as outlined are indefensible, as they constitute practice of the law. Canon 31 of the Canons of Judicial Ethics of the American Bar Association provides "that a judge should not practice in the court in which he is a judge even when presided over by another judge." The same canon provides that in those states in which a judge of an inferior court is permitted to practice "he occupies a position of great delicacy and must be scrupulously careful to avoid conduct whereby he utilizes, or seems to utilize, his position to further his professional success."

The public policy of this state so far as the office of justice of the peace is concerned is adequately expressed by Section 1885, Oklahoma Statutes 1931, 21 Okl.St.Ann. § 560, which provides:

"Any justice of the peace who shall office with an attorney-at-law; or act as attorney or agent for any party in any action before his court; or receive any fee or compensation other than the fees allowed by law, in any action or proceeding in his court; or be in any manner interested in the result of any such action or proceeding; or take for collection any debt or claim and bring, or allow to be brought, suit on same in his own court, or attempt the collection of same by any notice, letter or process bearing his official seal, signature, or title; or purchase any docket in his possession, shall be punished by a fine of not less than five dollars nor more than two hundred dollars, or imprisonment in the county jail for not more than sixty days, or both such fine and imprisonment."

With reference to the practice of permitting suits to be filed without a deposit for costs, the costs to be collected at the end of the litigation favorable to the plaintiff, see Advisory Opinion No. 8, appearing on page 173 of the Annual Reports of the State Bar of Oklahoma for 1931. The justice of the peace would be disqualified by reason of his pecuniary interest in the decision to be rendered.