Can a lawyer who also serves as a part-time city judge defend someone accused of a crime when the city's police may testify in the case?

Plain-English summary

The Committee considered whether a practicing attorney who is also a part-time associate city judge may represent a person accused of a crime where the city's police are or may be potential witnesses. It assumed the attorney had not acted in a judicial capacity on the matter; if he had, he would be clearly disqualified under DR 9-101(A), which bars accepting private employment in a matter on whose merits the lawyer acted as a judge. The harder question was whether he is disqualified when he has not acted judicially on the matter.

The Committee reviewed pre-code authority answering similar questions in the negative, including Opinion 116 (a city judge's firm could not defend criminal cases where the arresting officers were city police) and opinions discouraging justices of the peace from defending criminal cases. It looked to Canons 5, 8, and 9 and to DR 5-105, which requires declining employment if the lawyer's independent professional judgment for a client will be or is likely to be adversely affected.

The Committee reasoned that a part-time city judge must maintain a neutral role when city police testify in municipal court, yet in defending a criminal case he is likely to be adverse to those same officers, so his independent professional judgment for his private client could be adversely affected. Drawing on EC 5-1, it found the possibility of compromising influences so great that a part-time city judge should refuse employment in cases involving city police as witnesses. It also noted the dual role of judge and criminal defense attorney leads to an appearance of impropriety that could erode public confidence. The Committee concluded such representation should not be undertaken, by a 9-0 vote.

Currency note

This opinion was issued in 1985, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The Texas Code's "appearance of impropriety" standard was not carried into the Model Rules; the closest current concepts are Texas Rule 1.06 and Model Rule 1.7 on conflicts, with the applicable code of judicial conduct and Model Rule 1.12 (former judge) also relevant. Subsequent rule changes 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 part-time city judge defend criminal cases involving city police?

A: Per the opinion, no, he should not. The Committee concluded the dual role could adversely affect his independent professional judgment under DR 5-105 and creates an appearance of impropriety.

Q: What if the judge had acted on the matter as a judge?

A: Then he would be clearly disqualified under DR 9-101(A), which bars accepting private employment in a matter on whose merits the lawyer has acted in a judicial capacity.

Q: Why does it matter that the witnesses are city police?

A: The Committee reasoned that the judge must stay neutral toward city police testifying in his court, but as defense counsel he is likely to be adverse to those same officers, compromising his judgment for the client.

Background and rules framework

The opinion interprets DR 9-101(A) of the former Texas Code of Professional Responsibility (no private employment in a matter on whose merits the lawyer acted as a judge) and DR 5-105 (declining employment that may adversely affect the lawyer's independent professional judgment), informed by Canons 5, 8, and 9 and EC 5-1. The closest current concepts are Texas Rule 1.06 and Model Rule 1.7 on conflicts, Model Rule 1.12 on former judges, and the applicable code of judicial conduct. The analysis turns on the conflict between a city judge's neutral role toward police and his adverse role as defense counsel.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest)
• MR 1.12 (former judge or other third-party neutral)
• DR 9-101(A), DR 5-105, Texas Code of Professional Responsibility

Other opinions cited:

• Texas Professional Ethics Committee Opinions 116 (1955), 125 (1956), and 16 (1948)

See also

• TX Ethics Op. 451: Municipal Judge Using Law Firm Letterhead
• TX Ethics Op. 441: Government Office Conflict and Screening of Colleagues

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-429/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_429.pdf

Original opinion text

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

QUESTION PRESENTED

May a practicing attorney, who is also a part-time associate city judge, represent a person accused of a crime where the police in that city are or may be potential witnesses in the trial of the case?

DISCUSSION

In considering the question, it is assumed that the attorney who is also a part-time associate city judge, has not acted in a judicial capacity in connection with the matter. If he has acted on the matter in a judicial capacity, he is clearly disqualified under Disciplinary Rule (DR) 9-101(A) which provides that "A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."

The more difficult question is whether he is disqualified when he has not acted in a matter in his position as judge.

The question presented was the subject of pre-code Opinion 116 (September 1955), based on old Canon 33. That opinion held that it would violate the Canons of Ethics for a member of a law firm, of which a city judge was a member, to represent defendants in a criminal action in another court where the arresting officers are city policemen.

Similar results were reached in prior opinions as to whether it was improper for a justice of the peace to defend criminal cases. In one opinion, the committee found that it was improper or at least "unwise" for a justice of the peace to defend criminal cases in any court regardless of where the case originated. (Opinion 125, March 1956). In an earlier opinion, the committee concluded that a justice of the peace, who is a lawyer, could practice criminal law in Superior Courts, or in any county outside his own county, but said "It would be highly preferable for said justice of the peace to refrain from such practice even though there is no statute or canon which expressly prohibits him from doing so." (Opinion 16, December 1948).

Guidance for the answer to the question presented is found in Canon 5, which states that "A lawyer should exercise independent professional judgment on behalf of a client," Canon 8, which states that "A lawyer should assist in improving the legal system" and Canon 9, which states "A lawyer should avoid even the appearance of professional impropriety."

Disciplinary Rule 5-105 requires a lawyer to decline employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. The part-time city judge must maintain a neutral role as a city judge when city policemen testify in municipal court. In representing a criminal defendant, he is likely to be in an adversary role with these same policemen. His independent professional judgment in behalf of his private client could be adversely affected.

Although Ethical Considerations are not binding on a lawyer, EC 5-1 reminds us that the professional judgment of a lawyer should be exercised within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. EC 5-1 further states that neither the personal interest of the lawyer, the interests of other clients, nor the desires of third persons, should be permitted to dilute his loyalty to his client. The possibility of compromising influences is so great that a part-time city judge should refuse employment in cases in which policemen of his city are involved as witnesses.

As recognized in the prior opinions, the representation of criminal defendants by a lawyer who is also serving as a judge leads to an appearance of impropriety. Public confidence in law and lawyers could be eroded because the conduct of a lawyer in the dual role of judge and criminal defense attorney may appear to laymen to be unethical.

CONCLUSION

A practicing attorney who is also a part-time associate city judge should not represent a person accused of a crime where the police in that city are or may be potential witnesses. (9-0)

Tex. Comm. On Professional Ethics, Op. 429 (1985)