If a lawyer also serves as a court clerk, what legal work can he do, and can he split fees with another lawyer on court matters?

Plain-English summary

The inquiry came from a member of the State Bar who was also a district clerk and asked whether he could represent a few clients in minor matters such as probate work, drafting wills and deeds, and even divorce proceedings, in which he would call on a friendly attorney to assist with prosecution while he himself avoided active trial practice.

The committee answered that while serving as the clerk of any court of record, the lawyer can do only office practice that has no connection, either directly or indirectly, with court proceedings; he cannot have anything to do with court proceedings, citing Article 319 of the Revised Civil Statutes. The committee added that dividing fees for court proceedings between such a clerk and another member of the State Bar would violate the spirit of Canon 31 and of Section 4 of Article 430a of the Penal Code. The vote was 7-0.

Currency note

This is Opinion 1, among the earliest issued by the Committee (Opinion 2 is dated 1946), under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The statutes it cites have since been recodified. Subsequent rule amendments or later opinions may have changed the analysis; conflicts for a lawyer holding public office are now addressed by ABA Model Rules 1.7 and 1.11, and division of fees between lawyers by Model Rule 1.5(e). Treat this page as historical context, not current guidance.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: Could a lawyer who serves as a court clerk handle any legal matters?

A: Only office practice with no connection, direct or indirect, to court proceedings. The committee said such a clerk cannot have anything to do with court proceedings.

Q: Could the clerk hand off the courtroom work to another lawyer and share the fee?

A: No. The committee held that dividing fees for court proceedings between the clerk and another lawyer would violate the spirit of Canon 31 and Section 4 of Article 430a of the Penal Code.

Q: What was the source of the restriction on the clerk's practice?

A: The committee tied the office-practice-only limit to Article 319 of the Revised Civil Statutes and the conflicts principle of Canon 6, and the fee-division limit to Canon 31.

Background and rules framework

The opinion interprets former Texas Canons 6 (conflicting interests) and 31 (division of fees), together with Article 319 of the Revised Civil Statutes and Section 4 of Article 430a of the Penal Code, applied to a lawyer who simultaneously holds the office of court clerk. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.5(e) (division of fees between lawyers not in the same firm).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• MR 1.5(e) (division of fees between lawyers), as the modern analog
• Texas Canons 6 and 31

Statutes:

• Article 319, Revised Civil Statutes (Texas)
• Section 4, Article 430a, Penal Code (Texas)

See also

• TX Ethics Op. 13: A County Judge's Private Law Practice
• TX Ethics Op. 16: A Justice of the Peace in Private Criminal Practice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-1/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_1.pdf

Original opinion text

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

QUESTION PRESENTED

A member of the State Bar of Texas, who is also a district clerk, inquires whether he can "represent a few clients in minor legal matters such as probate work, drafting a will, deeds, etc., and in the event a friend wishes me to represent him or her in such matters as divorce proceedings. I would like to take the case and call upon some friendly attorney to assist me in prosecution of such causes. I am sure I would not wish to practice law on the District Courts of this county if I could but in some cases I would like to go ahead and call upon some friendly attorney to assist me. I would not wish to do active trial practice."

18 Baylor L. Rev. 195 (1966)

CONFLICTING INTERESTS - COURT CLERKS
An attorney serving as the clerk of any court of record who wishes to perform legal services in addition to his official duties is limited to office practice which has no connection with court proceedings.
DIVISION OF FEES - COURT CLERKS
A division of fees for court proceedings between an attorney while serving as the clerk of any court of record and another attorney, is improper.
Canons 6, 31.

A member of the State Bar while serving as the clerk of any court of record can only do office practice, which has no connection, either directly or indirectly, with court proceedings. He cannot have anything to do with court proceedings. Art. 319, Revised Civil Statutes. It is also the opinion of the committee that a division of fees for court proceedings between such a clerk and another member of the State Bar would violate the spirit of Canon 31 and of Sec. 4, Art. 430a of the Penal Code. (7-0)

Tex. Comm. On Professional Ethics, Op. 1