Must a judge recuse from a civil case just because his son, a former law partner, represents one of the parties?

Plain-English summary

The inquiry asked whether a district judge should conduct the trial of a civil case in which his own son, and partner until the judge's election or appointment, represented one of the litigants, or whether the judge should recuse.

The committee was unanimous that the mere relationship of father and son does not disqualify the judge, and that trying the case would not violate the Texas Canons, Article 15 of the Revised Civil Statutes, or Article 5, Section 11, of the Texas Constitution. The committee added that if the case came into the office while the father was a partner, or if he had an interest in the case or had done any work in its preparation, he should recuse himself. The committee stated that it is a judge's responsibility not to sit in any case unless he is both free from bias and the appearance of bias. The vote was 10-0.

Currency note

This opinion was issued in 1951, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; judicial disqualification is now governed by the Texas Code of Judicial Conduct and the analogous ABA Model Code of Judicial Conduct Rule 2.11, and the statutory and constitutional provisions cited here may since have been amended or renumbered. Treat this page as historical context, not current guidance.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 judge have to step aside just because his child is the lawyer on a case?

A: Under this opinion, no. The committee held (10-0) that the father-son relationship by itself does not disqualify the judge.

Q: When should the judge recuse despite that?

A: The committee said the judge should recuse if the case came into the office while he was a partner, if he has an interest in it, or if he did any work in its preparation, and in all events if he is not free from bias and the appearance of bias.

Q: What authorities did the committee consider?

A: It looked to the Texas Canons of Ethics, Article 15 of the Revised Civil Statutes, and Article 5, Section 11, of the Texas Constitution, and found none of them disqualified the judge on the bare relationship.

Background and rules framework

The opinion addresses judicial disqualification under the Canon-era framework, with reference to Article 15 of the Revised Civil Statutes and Article 5, Section 11, of the Texas Constitution. The modern analog is the Texas Code of Judicial Conduct (and the corresponding ABA Model Code of Judicial Conduct Rule 2.11 on disqualification), which now governs when a judge must step aside.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 2.11 (disqualification), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

Statutes:

• Article 15 of the Revised Civil Statutes of Texas
• Texas Constitution, Article 5, Section 11

See also

• TX Ethics Op. 47: Conflicts of Interest in a Will-Interpretation Suit
• TX Ethics Op. 37: A County Attorney's Partner Practicing Criminal Law

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-35/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_35.pdf

Original opinion text

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

QUESTION PRESENTED

Should a duly elected or duly appointed district judge conduct the trial of a civil cause in which his own son and partner until such election and appointment, represents one of the litigants, or should such judge recuse himself under such circumstances?

18 Baylor L. Rev. 211 (1966)

JUDGES - BIAS
A judge is not disqualified from a civil suit merely because his son represents one of the litigants. He should not sit in any case unless he is free from bias and the appearance thereof.

Canon 6.

The committee is unanimously of the opinion that the mere relationship of father and son, as such, does not disqualify the judge, and it would not be a violation of any of the Texas Canons of Ethics, or of Article 15 of the Revised Civil Statutes, or Article 5, Section 11, of the Texas Constitution for the judge to try the case. Of course, if the case came into the office while the father was a partner, or if he had an interest in the case, or had done any work in its preparation, he should recuse himself. 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. (10-0)

Tex. Comm. On Professional Ethics, Op. 35 (1951)