Is a judge disqualified when his lawyer-son tries a case, on contingency, in his court, and can the judge set his son's fee?

Plain-English summary

The inquiry posed three questions: whether it violates the Canons for a lawyer to try a civil case on a contingent fee in a court where his father is the judge; whether a judge may fix the attorney fee of his son, a lawyer in the case; and whether a judge may try a criminal case in which his son is one of the attorneys.

The Committee answered that the questions are not exclusively ethical, as the courts have addressed them without uniformity. Under Article 5, Section 11 of the Texas Constitution, a judge is disqualified only where he is connected with the parties; the Texas Supreme Court held in Winston v. Masterson, 87 Tex. 768, that a judge is not disqualified because his brother, attorney for a party, has a contingent interest, so the answer to the first question is "No," the attorney not being a "party." However, in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, the Court held an attorney is a "party" where the judge must fix his fee, so the answer to the second question is "Yes." The courts likewise hold a judge is not disqualified in a criminal case because his son is an attorney, so the third answer is "No."

While the courts pre-empted the Committee from opining on the judicial-ethics questions, the members were of the opinion that a judge should disqualify himself where close relatives with an unusual interest in the result are attorneys, referencing ABA Judicial Canons 4 and 13, ABA Opinion 200, and the Committee's Opinion 35. A majority was very definite that a judge should not try a case in which his son is an attorney and his fee is contingent on the result.

Currency note

This opinion was issued in 1956, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The judicial-conduct standards it references have likewise been superseded by the Texas Code of Judicial Conduct. Subsequent rule amendments or later opinions 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 Treat this page as historical context, not current guidance.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: Is a judge disqualified because his son is one of the attorneys?

A: Not on that basis alone. The Committee, following the Texas courts, said the attorney is not a "party," so the judge is not disqualified in either a civil contingent-fee case or a criminal case.

Q: Can a judge set his son's attorney fee in the case?

A: No. The Committee concluded a judge may not fix his son's fee, because for that purpose the attorney is a "party" (citing Postal Mutual Indemnity Co. v. Ellis).

Q: Did the Committee think the judge should sit at all?

A: A majority was very definite that a judge should not try a case in which his son is an attorney with a fee contingent on the result, and the members urged disqualification where close relatives have an unusual interest.

Background and rules framework

The opinion interprets former Texas Canons 6 and 12 and references ABA Judicial Canons 4 and 13, against the backdrop of Article 5, Section 11 of the Texas Constitution and Texas disqualification case law. The modern analog for the lawyer-side personal-interest concern is ABA Model Rule 1.7(a)(2); the judicial-disqualification questions are now governed by the Texas Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (personal-interest conflict), as a modern analog
• Texas Canons 6 and 12
• ABA Judicial Canons 4 and 13

Constitution and cases:

• Texas Constitution, Article 5, Section 11 (grounds for judicial disqualification)
• Winston v. Masterson, 87 Tex. 768, a judge is not disqualified because his brother-attorney has a contingent interest
• Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, an attorney is a "party" where the judge fixes his fee

Other opinions cited:

• ABA Opinion 200 and Texas Ethics Opinion 35

See also

• TX Ethics Op. 151: Judge Defending a Suit He Ordered
• TX Ethics Op. 173: County Judge Practicing Law

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-135/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_135.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Canons of Ethics for a lawyer to try a civil case on a contingent fee basis in a court in which his father is the judge?
Is it a violation of the Canons of Ethics for a judge to fix the attorney's fee of his son, a lawyer in the case?
Is it a violation of the Canons of Ethics for a judge to try a criminal case in which his son is one of the attorneys?

18 Baylor L. Rev. 250 (1966)

AVOIDANCE OF IMPROPRIETY - KINSHIP OR INFLUENCE
Since a judge is disqualified only where he is connected with one or more of the parties to a suit, it is not a violation of the Canons for a son of the judge to try a criminal case or a civil suit on a contingent fee basis, in his father's court. The committee is pre-empted from resolving questions involving judicial ethics, but feels that judges should avoid every situation which might give the impression that his decisions were influenced by favoritism or bias.

CONTINGENT FEES
It is improper for a judge to fix the attorney fees of his son, a lawyer in the case, since the attorney is a party for that purpose.

Canons 6, 12. A.B.A. Judicial Canons 4, 13.

The questions submitted are not exclusively questions of ethics inasmuch as they have been before many courts and there is not unanimity among the decisions of the various states.
Under Article 5, Sec. 11 of the Texas Constitution, a judge is disqualified only where he is connected with the parties to the suit; and the Supreme Court of Texas has held (Winston v. Masterson, 87 Tex. 768) that a judge is not disqualified from hearing a case because his brother, who is attorney for one of the parties, has a contingent interest in the result. The answer to the first question, therefore, is "No." The attorney is not a "party."
However, in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S. W. 2d 482, the Supreme Court held that an attorney is a "party" where the judge is called upon to fix his attorney fee. Therefore, the answer to the second inquiry is "Yes."
The decisions of the courts relating to criminal matters also appear to hold that a judge is not disqualified in a criminal case because his son is an attorney therein, so the categorical answer to the third inquiry is "No."
While the courts have pre-empted this committee from rendering an opinion on the ethical questions involved in these inquiries, the members of the committee are of the opinion that a judge should disqualify himself in cases where close relatives, with an unusual interest in the result, are attorneys in the case. Reference is made to Canon 4 of the Canons of Judicial Ethics of the American Bar Association, which provides in pertinent part that "a judge's official conduct should be free from impropriety and the appearance of impropriety; . . . " and also Canon 13 thereof, which provides that the judge "should not act in a 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."

In Opinion No. 200, the American Bar Association committee expressed the opinion that a judge should studiously avoid every situation that might give rise to the impression that his decisions were influenced by favoritism.

Again following Opinion No. 35 of the Texas Committee on Interpretation of the Canons of Ethics, this committee feels that it is the responsibility of a judge not to sit in any case unless he is both free from bias and the appearance thereof.

Finally, the majority of the committee is of the very definite opinion that a judge should not try a case in which his son is an attorney and his fee contingent on the result of the litigation.

Tex. Comm. On Professional Ethics, Op. 135 (1956)