May a Texas district judge sign pleadings or act as counsel in a case, or solicit and refer business to the lawyer who took over his practice?

Plain-English summary

The inquiry asked whether a district judge violated the Canons by (A) signing pleadings and participating as counsel in a district court case before trial, and (B) referring individuals to, and openly soliciting business for, a particular lawyer who took over the judge's practice when he qualified as district judge.

On (A), the Committee held the judge may not properly sign pleadings or act as counsel. Article 319 of Vernon's Annotated Civil Statutes prohibits a district judge from appearing and pleading as an attorney in any court of record in the state; because Section 2 of the Canons states the code of ethics is cumulative of the state laws, and the committee had held in Opinion 13 that it is unethical for a county judge to practice law in violation of law, a district judge's signing pleadings and participating as counsel after taking office appeared to violate Article 319 and to be unethical. The Committee added that Canon 29, under which no member shall render service or advice involving disrespect of the judicial office, is violated when a judge renders legal services in violation of Article 319.

On (B), the Committee held that merely referring individuals to the lawyer who took over the judge's practice is not necessarily a violation, absent something more such as fee splitting or solicitation; a judge may at times need to suggest that a layman consult a lawyer, and the public good may be served by allowing a judge to suggest competent counsel. But because the inquiry stated the judge was openly soliciting business for the young lawyer, that solicitation, if true, violates Canons 24 and 25 on the part of both the judge and the lawyer, regardless of whether the lawyer had assumed the judge's former practice. The vote was 9-0.

Currency note

This opinion was issued in 1960, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. 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 Treat this page as historical context, not current guidance.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: Can a sitting district judge sign pleadings or act as counsel in a case?

A: Under this opinion, no. The Committee held a district judge may not sign pleadings or act as counsel, because Article 319 bars a district judge from pleading as an attorney and doing so violates Canon 29.

Q: Can a judge refer someone to a particular lawyer?

A: Sometimes. The Committee held that merely referring an individual to a particular lawyer is not necessarily a violation, absent something more such as fee splitting or solicitation, since a judge may need to suggest competent counsel.

Q: What about openly soliciting business for a lawyer?

A: That is improper. The Committee held a judge's open solicitation of business for a lawyer violates Canons 24 and 25 on the part of both the judge and the lawyer, regardless of whether the lawyer took over the judge's practice.

Background and rules framework

The opinion interprets former Texas Canons 24 (solicitation), 25 (stirring up litigation), and 29 (duty not to render service involving disrespect of the judicial office), together with Article 319 of Vernon's Annotated Civil Statutes (which bars a district judge from pleading as an attorney) and Section 2 of the Canons. The Committee cited its earlier Opinion 13. The modern analog for the solicitation holding is ABA Model Rule 7.3 (solicitation of clients).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• Texas Canons 24, 25, and 29 (former canons)

Statutes:

• Article 319, Vernon's Annotated Civil Statutes (district judge barred from pleading as an attorney)

Other opinions cited:

• Texas Ethics Opinion 13: unethical for a county judge to practice law in violation of law

See also

• TX Ethics Op. 206: A Lawyer's Hospitality to a Judge
• TX Ethics Op. 210: Judges' Newspaper Christmas Greetings
• TX Ethics Op. 220: County Judge in Private Practice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-207/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_207.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 district judge to:

A. Sign pleadings and otherwise participate as counsel in a district court case prior to the trial?
B. Refer individuals to and openly solicit business for a particular lawyer who took over the judge's practice when he qualified as district judge?

18 Baylor L. Rev. 294 (1966)

PRACTICE OF LAW BY A DISTRICT JUDGE - SOLICITATION AND REFERRALS BY A DISTRICT JUDGE
A district judge may not properly sign pleadings or otherwise counsel in a district court case prior to a trial. A district judge may not properly solicit business for any member, though under some circumstances he may properly refer individuals to a particular attorney.

Canons 24, 25, 29.

Such action set out in subdivision violates Ethics.

Such action described in subdivision B hereof is improper and violates Canons 24 & 25 of the Texas Canons of Ethics. A hereof is improper and Canon 29, Texas Canons of

A. Article 319, VACS, prohibits a district judge from appearing and pleading as an attorney in any court of record in this state. Section 2 of the Canons of Ethics states that the code of ethics is cumulative of the state laws, and accordingly this committee in Opinion No. 13, held that it is unethical for a county judge to practice law in violation of law. The inquiry states that the district judge signed pleadings and participated as counsel in a case after becoming judge; it seems this is a violation of Article 319, VACS, and unethical conduct.
Canon 29, Texas Canons of Ethics, states that "No client . . . is entitled to receive, nor shall any member render any service or advice involving disloyalty to the law, or disrespect of the judicial office. . . ." For a judge to render legal services in violation of Article 319 violates Canon 29.

B. The Texas Canons above referred to are not necessarily violated by the conduct of a judge in referring individuals to a particular lawyer who took over the judge's practice when he went on the bench, assuming that there is nothing else involved, such as fee splitting or solicitations. A judge on many occasions may need to suggest to a layman that he consult a lawyer; and if the problem is viewed from the standpoint of enabling a layman to secure the most competent representation possible, the public good may well be served in many instances by permitting a judge to suggest a particular lawyer to the layman. In this instance, however, the inquiry also includes the statement that the judge, ". . . is openly soliciting business for this young lawyer. . . ." If this conclusion as to the judge's referral activities is true, it is a violation of Texas Canons 24 and 25, on the part of both judge and lawyer. Solicitation of business by a judge for a lawyer violates the canons regardless of whether the lawyer assumed the judge's former practice (9-0)

Tex. Comm. On Professional Ethics, Op. 207 (1960)