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OBA Ethics Counsel

Ethics Opinion No. 168

Adopted June 10, 1953

QUERY

A Judge wrote the undersigned Committee stating that he had recently been appointed judge of a Superior Court. That at the time of appointment he had a number of cases pending in the State, District, County and Superior Courts. He asks whether or not it is proper to complete these cases.

ANSWER

As we said in Advisory Opinion No. 166, the judge "in good faith and with the apparent desire to observe the proprieties, requests an opinion which we feel warranted in giving, realizing that we are faced with the question of whether or not this is a question for the Committee on Ethics or the Committee on Unauthorized Practices. If a lawyer Judge is engaging in unprofessional conduct we feel that a question of ethics is involved and should be answered.

We are not unmindful of the holding in Chambers v. Central Committee of Oklahoma Bar Ass'n, 203 Okl. 583, 224 P.2d 583, where the Supreme Court said, "... any such judge is not presently an attorney at law. In Soda v. Marriott, 130 Cal. App. 589, 20 P.2d 758, 759, at page 761, it was expressly pointed out that 'one elevated to the bench is no longer an attorney at law.' A judge is precluded from being an attorney at law so long as he holds the judicial position. * * *

He is not practicing law. He has already been stopped from practicing law by going on the bench. * * *"

The law that "stopped him" "from practicing law by going on the bench" is found in the Statutes of Oklahoma. 5 Okl. St. Ann. § 1 reads in part,

"No person shall practice as an attorney and counselor at law in any court of this State * * * who holds a commission as a judge of any court of record, * * *; but nothing herein contained shall prevent any judge of any of the courts of this State from finishing any business by him undertaken in the district, circuit, or supreme court of the United States, prior to his election or appointment as judge; * * *."

The general and special statutes creating Superior Courts make them courts of record. See 20 Okl. St. Ann. ss 151, 161, 201, 241.

In view of the above statutes it is clear that a newly elected or appointed judge of the Superior Court cannot complete cases filed in any District, County, or Superior Court in the State of Oklahoma. He may of course finish "any business by him undertaken in the district, circuit, or supreme court of the United States, prior to his election or appointment."

The reason for the rule is stated in Dickson v. State, 67 Okl. Cr. 365, 94 P.2d 258, as follows:

"... It is apparent that one of the objects of the adoption of the statute was to separate the judge personally, as well as officially, from all that manner of life so calculated to destroy impartiality of judgment and balance of temper which may and does sometimes, influence the lawyer. ....

...........

There can scarcely be any doubt that public policy forbids a judge to practice law, ....."

The first case in Oklahoma to pass on this question was Lilly v. State, 7 Okl. Cr. 284, 123 P. 575, where the court said:

"This statute expressly prohibits judges of the courts of record in this state from practicing in any of the courts of this state during the term for which they hold such offices, and only permits such judges to finish any business undertaken by them in the various United States Courts."

In Roddie v. State, 19 Okl. Cr. 63, 198 P. 342, the court said:

"Under the statutes of this state an attorney at law who holds a commission as a judge of any court of record of this state is prohibited from practicing law as an attorney, counselor, or advocate in any of the state courts so long as he occupies such official position. Section 240, Rev. Laws."

In Knight v. State, 49 Okl. Cr. 123, 295 P. 409, at page 412 the court said:

"There can scarcely be any doubt that public policy forbids a judge to practice law, or to assist, or counsel, to appear, or take part in any way in the trial of the case."

The general rule is found in 48 C.J.S. Judges § 9, p. 959, where it is said:

"The rights, duties, privileges, and functions of the office of an attorney- at-law, counsellor [sic], or advocate are inherently incompatible with the official functions, duties, powers, discretions, and privileges of a judge. Hence, even in the absence of a statute so providing, a judge cannot act as attorney or counsel in a case pending before him or before the court of which he is a member; and it has been held that a circuit judge cannot act as counsel in any court within the state."

Judicial Canon 31 reads 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 such case 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. * * *"