When a lawyer becomes a judge of a court of record, what happens to his bar membership and may he still handle cases like uncontested divorces?

Plain-English summary

A lawyer who became a county judge on January 14, 1935, asked (a) his status as a State Bar member, (b) whether he must pay annual fees as an active or inactive member, and (c) whether, if he paid as an active member, he could engage in practice such as filing divorce actions and obtaining uncontested decrees.

On (a), the Board explained that under the State Bar Act (effective June 29, 1929), all persons entitled to practice when it took effect, and all later admitted, became members of the State Bar. The judge remained a member; his election to a court of record merely suspended his right to practice during his term under Section 4199, and he could resume practice when his commission ended. His membership was not otherwise affected.

On (b), the Board noted that the Act divided members into active and inactive classes, and that every licensed lawyer was deemed an active member until enrolled as inactive at his request. The judge therefore had to pay active-member fees unless he requested inactive enrollment.

On (c), the Board answered no, quoting Section 4199, Okl. Statutes 1931 (5 Okl. St. Ann. § 1): "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."

Currency note

This opinion was issued in 1935, 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. It rested on the State Bar Act and statutes as they stood in 1935, since recodified and amended. Subsequent rule and statutory changes 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 Treat this page as historical context, not current guidance.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: Does a lawyer lose bar membership on becoming a judge?

A: No. The opinion held that election to a court of record only suspended the right to practice during the term; the lawyer remained a State Bar member and could resume practice when his commission ended.

Q: Could a sitting judge file divorce actions or obtain uncontested decrees?

A: No. The opinion answered that question in the negative, quoting Section 4199, which barred anyone holding a commission as judge of a court of record from practicing law.

Q: Did the judge still owe bar dues?

A: Yes, as an active member, unless he requested enrollment as an inactive member, in which case the inactive-member fees applied.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct; it construed the Oklahoma State Bar Act and Section 4199, Okl. Statutes 1931 (5 Okl. St. Ann. § 1), which barred a sitting judge of a court of record from practicing law. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Statutes:

• Oklahoma State Bar Act (eff. June 29, 1929), Secs. 3, 4, 6, 7: membership in and classes of the State Bar.
• Section 4199, Okl. Statutes 1931 (5 Okl. St. Ann. § 1): no person holding a commission as judge of a court of record may practice law.

See also

• Okla. Bar Ethics Op. 77: Firm name after a partner takes public office
• Okla. Bar Ethics Op. 84: Former county attorney defending a case he prosecuted

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-86/

Original opinion text

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

Adopted February 22, 1935

A member of the bar, who on January 14th, 1935, became a county judge, inquires:

"(a) What is my status as a member of the State Bar?

(b) Am I to pay the annual fee, either as an active or inactive member?

(c) If I pay the annual fees as an active member, may I engage in the practice, such as filing divorce actions and obtaining uncontested decrees therein?"

In response:

(a) The State Bar Act, which became effective June 29, 1929, provides (Sec. 3) the members of the State Bar shall be all persons now entitled to practice law in this State, and (Sec. 7) that after the organization of the State Bar, all persons who are admitted to practice shall become by that fact, members of the State Bar.

In the opinion of the Board of Governors, the member of the bar in question, if admitted prior to June 22, 1929, was "entitled to practice law" within the meaning of the State Bar Act and is therefore a member of the State Bar. If the member of the bar in question was admitted to the bar subsequent to June 22, 1929, by the express terms of the State Bar Act he became a member of the State Bar without limitation or qualification. The fact that he has been elected the judge of a court of record in this State merely suspends his right to engage in the practice of law under the provisions of Section 4199 hereinafter quoted during his term of office, that is, so long as he holds such commission. Upon the relinquishment of his commission as such judge by expiration of his term or otherwise, he may resume the practice of law. His status as a member of the State Bar is not otherwise affected.

(b) The State Bar Act (Sec. 4) provides that the members of the State Bar shall be divided into two classes, active and inactive, and (Sec. 6) that every person licensed to practice law in this State shall be deemed an active member until, at his request, he shall have been enrolled as an inactive member. So far as the payment of fees is concerned, the member of the bar in question is required to pay fees as an active member, unless, at his request, he shall have been enrolled as an inactive member, in which event, of course, the fees applicable to inactive members should be paid.

(c) No. Section 4199, Okl.Statutes 1931, 5 Okl.St.Ann. § 1 provides:

"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."