OBA Ethics Counsel
Ethics Opinion No. 162
Adopted November 12, 1952; Withdrawn by Opinion No. 175 Adopted December 9, 1953
A and B are partners in the general practice of law. A holds two offices. one as a Justice of Peace, and one as Police Judge.
The questions are twofold:
1. Can A and B remain partners in all courts other than the Justice of Peace Court and Police Court, and
2. Can B file cases in A's Justice of Peace Court when such cases are B's separate cases and not cases of the partnership.
1. Since A, as Justice of the Peace and Police Judge, is not prohibited from practicing law in other courts, there is nothing unethical in A and B remaining partners.
2. Canon 13 of the Judicial Canons of Ethics of the American Bar Association provides in part, "... he (Judge) 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."
Canon 31 of said Judicial Canons provides in part,
"In many states the practice of law by one holding judicial position is forbidden. In superior courts of general jurisdiction, it should never be permitted. In inferior courts in some states, it is permitted because the county or municipality is not able to pay adequate living compensation for a competent judge. In such cases one who practices law is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.
He should not practice in the court in which he is a judge, even when presided over by another judge, or appear therein for himself in any controversy."
Canon 29 of the Canons of Professional Ethics provides in part, "... He (lawyer) should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice."
The Canons are based upon the necessity for the maintenance of professional integrity so that the public will have the utmost confidence in that integrity. A lawyer cannot practice in courts presided over by his partner and have the confidence of the public to which the profession is entitled. As said in many opinions of the American Bar Association,
"If the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil."
See American Bar Association's Opinions 49, 50, 103.
Since A cannot practice law in his own court, B likewise cannot practice therein for the relations of partners are such that no member thereof may properly accept employment which other members of the firm cannot properly accept. See American Bar Association's Opinions 33, 49 and 103.
In Opinion 104 of the American Bar Association, A and B were not co-partners; A was Police Judge. In holding that B could not practice in A's Court the opinion says,
"The public, knowing of their intimate relation as office associates, may infer that there is some influence operating in their establishment by reason of which a person arraigned before A is induced to employ B, and against such inference, however unfounded, both A and B should guard themselves. Lawyers should not conduct themselves in such as way as to impair the confidence which the community have in the administration of justice."