Can a county judge disqualify himself and then appear as a lawyer in his own court, and can he keep his name in a law firm whose partner practices before him?

Plain-English summary

The inquiry described a county judge who on several occasions disqualified himself as judge and then accepted employment as counsel for the applicant in will-probate cases filed in his court, handled before a special judge. In one case the judge had earlier drafted the deceased's will; in another he was distantly related to the deceased; in most there was no prior connection. The judge was also named as a partner in a law firm whose other lawyer often served as counsel for applicants in probate matters in the judge's court, though the judge took no fee from matters his partner handled in that court.

On the first question, the Committee concluded a county judge may not disqualify himself and then accept employment as an attorney in a probate matter handled in his court before a special judge, and that the answer is the same whether or not he had earlier represented one or more of the parties (6-2). It pointed to Article 319 of the Revised Civil Statutes, which bars a county judge from practicing as an attorney in any county or justice court except where his court has neither original nor appellate jurisdiction, and to Articles 402 and 403 of the Penal Code and the Committee's Opinion 13. The Committee reasoned that a judge disqualifying himself from time to time and then appearing in his own court, even before a special judge, would tend to arouse public suspicion that some influence operates on the court.

On the second question, the Committee concluded a county judge should not maintain a law partnership using his name and that of another attorney while acting judicially in cases his partner files in his court, and that the answer does not change because the judge takes no fee from those particular cases while sharing in the firm's other fees (5-3). Under Canon 30, if a member of a firm becomes a judge his name shall not be continued in the firm name, because retaining it tends to create the impression the firm has influence with the judge. The Committee added that, because the relations of partners are so close, the firm and all its members should be barred from any employment that any one member is prohibited from taking, so the judge's partner should not accept employment in cases the judge himself would be disqualified to accept, citing the Committee's Opinion 23 and ABA Opinion 142.

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The statutes cited and the standards governing judges have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or requirement mentioned here.

Common questions

Q: Can a county judge step aside on a case and then appear as a lawyer in it before a special judge?

A: The Committee concluded he may not, pointing to Article 319 of the Revised Civil Statutes and reasoning that doing so would tend to arouse public suspicion that influence operates on the court (6-2).

Q: Does it matter that he had represented a party before becoming judge?

A: No. The Committee concluded the answer is the same whether or not the judge had earlier represented one or more of the parties; even after disqualifying himself for that reason, he could not then represent those parties in the matter.

Q: Can a lawyer who becomes a county judge keep his name in the firm?

A: The Committee concluded he should not. Under Canon 30, once a member of a firm becomes a judge his name shall not be continued in the firm name, because retaining it tends to suggest the firm has influence with the judge.

Q: Can the judge's law partner appear before him?

A: The Committee concluded the partner should not accept employment in cases the judge himself would be disqualified to accept, because the firm and all its members should be barred from employment any one member is prohibited from taking (5-3).

Background and rules framework

The opinion interprets former Texas Canon 30 (a firm member who becomes a judge must drop his name from the firm name) and Canon 33 (partnerships and firm names), alongside Article 319 of the Revised Civil Statutes and Articles 402 and 403 of the Penal Code. The modern analogs include ABA Model Rule 7.5 (firm names and letterheads) on the firm-name question and Model Rule 1.10 (imputation of conflicts) on the partner's disqualification; the judge's own conduct is now governed by codes of judicial conduct and by statute.

Citations and references

Rules of Professional Conduct:

• MR 7.5 (firm names and letterheads), as the modern analog
• MR 1.10 (imputation of conflicts of interest), as the modern analog
• Texas Canons 30 and 33 (former canons on firm names and partnerships)

Statutes:

• Article 319, Revised Civil Statutes of Texas (county judge barred from practicing as an attorney in his court)
• Articles 402 and 403, Penal Code

Other opinions cited:

• Texas Opinion 13
• Texas Opinion 23
• ABA Committee on Professional Ethics, Opinion 142

See also

• TX Ethics Op. 195: County Judge and County Attorney as Law Partners
• TX Ethics Op. 220: County Judge in Private Practice (Statutory)
• TX Ethics Op. 207: District Judge Signing Pleadings and Soliciting

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-173/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_173.pdf

Original opinion text

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

QUESTION PRESENTED

A county judge on several occasions disqualified himself from serving as judge and accepted employment as counsel for the applicant in will probate cases filed in his court. In one case the judge had previously acted as the attorney of the deceased in preparing the will. In another the judge was distantly related to the deceased. But in most of the cases there was no prior connection between the judge and the deceased or the legatees and devisees of the deceased. The county judge is named as one of the partners in a partnership with another lawyer in the community. His partner is often counsel for applicants in probate matters handled in the judge's court. The county judge does not participate in fees derived from any matters handled in his court by his partner.
May a county judge properly disqualify himself and then ethically accept employment as an attorney in a probate matter handled in his court before a special judge? Is the conclusion any different in the event that the judge, prior to his becoming county judge, or prior to the inception of the case, had represented one or more of the parties involved?
May an attorney who is county judge maintain a partnership for the practice of law with another attorney in the community, using his name and that of the other attorney, and act in his judicial capacity in cases filed in his court by his partner in his partner's name only? Is the conclusion any different if it appears that the county judge does not participate in the fee derived from the case filed in his court, but does participate in the general fees collected by the partnership in other matters?

18 Baylor L. Rev. 271 (1966)

DISQUALIFICATION - PRIVATE PRACTICE BY JUDGES
It is improper for a judge to disqualify himself to accept employment as an attorney in a probate matter handled in his court before a special judge.

FIRM NAMES - PARTNER AS ADVOCATE BEFORE JUDGE
If a member of a firm becomes a judge, his name should be deleted from the firm name. He cannot maintain a partnership and act in his judicial capacity upon cases filed in his court by his partner even though filed in his partner's name only.

Canons 30, 33.

A county judge may not disqualify himself and then accept employment as an attorney in a probate matter handled in his court before a special judge. This conclusion would not be any different in the event that the county judge, prior to becoming county judge, or prior to the inception of the case, had represented one or more of the parties involved. Article 319 of the Revised Civil Statutes of Texas provides that no county judge shall be allowed to appear and practice as an attorney at law in any county or justice court, except in cases where the court over which he presides has neither original nor appellate jurisdiction. See also Articles 402 and 403 of the Penal Code and Opinion 13 of this committee. Even though the county judge would have to disqualify himself from acting as judge in the matter because of his prior representation of one or more of the parties involved, he could not then represent such parties in the matter being handled in his court by the special judge after his disqualification. Public officials should act with the utmost caution at all times to avoid any suspicion on the part of the public that there is some influence operating on the court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice. For a judge to disqualify himself from time to time and then appear in his own court, even though it be before a special judge appointed in each instance, would tend to arouse suspicion on the part of the public that there could be some influence operating on the court in handling the matters in his court. (6- 2)
An attorney who is county judge should not maintain a partnership for the practice of law with another attorney in the community, using his name and that of the other attorney, and act in his judicial capacity in cases filed in his court by his partner in his partner's name only. This conclusion would not be any different if it appears that the county judge does not participate in the fee derived from the case filed in his court, but does participate in the general fees collected by the partnership in other matters. Canon No. 30 provides that if a member of a firm becomes a judge his name shall not be continued in the firm name. The retention of the judge's name in the firm name would tend to create the impression that the firm possesses influence with the judge, and, in consequence, tend to impel those in need of legal services in connection with matters before the judge to employ the firm. The relations of partners in a law firm are so close that the firm, and all the members thereof, should be barred from accepting any employment that any one member of the firm is prohibited from taking, therefore, the partner of the county judge should not accept employment in cases which the county judge himself would be disqualified to accept. See Opinion No. 23 of this committee and Opinion No. 142 of the Committee on Professional Ethics of the American Bar Association. (5-3)

Tex. Comm. On Professional Ethics, Op. 173 (1958)