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OBA Ethics Counsel

Ethics Opinion No. 172

Adopted September 16, 1953

QUERY

The President of the Tulsa County Bar has referred to the undersigned Committee the following inquiry, to-wit:

"Law Offices of

DOE AND ROE

______ Bldg.

Tulsa, Oklahoma

John Doe Phone 4_xxxx

Richord Roe 4_xxxx

July 30, 1953

Mr. Harry L. Dyer, Pres.

County Bar Asso.

Tri-State Ins. Bldg.

Tulsa, Oklahoma

Dear Sir:

After reading the letter to you sent by the committee of the County Bar Asso., I find that I am in some doubt as to the findings, or meaning of the findings, of the committee.

I would appreciate you requesting them to reflect in their letter their opinion on the following things:

1--Can the Judge of the Municipal Criminal Court practice law?

A--If not, can he keep his office and maintain the firm name as is with his name therein so long as he does not practice?

B--Can the said firm name continue being used on firm letterheads?

C--The Municipal Criminal Court was created and is operating under 11 Okl.St.Ann. § 781. Said statute was passed in 1919--when I was 3 yrs. old--ever since that date lawyers have practiced law while they were judge of said court. Am I guilty of unethical conduct for practicing law while I hold said job?

D--Does not conduct of all lawyers in this position accepted over a period of 34 years by * * * the Bar Association give me a right to finish the remaining 9 months of my appointment? Such practice has been considered proper for 34 years. Surely I had a right to lease offices and plan for this type practice since I am and was following a 34 year precedent.

2--Could the Judge of the Municipal Criminal Court practice law if he were appointed by the Mayor and Commissioners under the City Charter providing him with power to try only City Ordinance offences?

3--Can the Alternate Judge of the Municipal Criminal Court practice law while holding such position and does not he have a right to complete his appointment?

Very truly yours,

RR/p (Signed) Richard Roe"

ANSWER

As we said in Advisory Opinions Numbers 166 and 168, 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 O.S.A. § 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 special Statute creating the Municipal Court of the City of Tulsa is 11 Okl.St.Ann. 781 and makes it a court of record. The Criminal Court of Appeals of Oklahoma in Watson v. State, 58 Okl.Cr. 448, 54 P.2d 1097 said:

"... the act creating the Municipal Criminal Court of Tulsa ... makes such Municipal Court a court of record. ..."

Judicial Canon 31 reads in part:

"If forbidden to practice law, he (Judge) shall refrain from accepting any professional employment while in office." (Italics supplied)

In view of the above statutes and holding of the Watson case the answer to the first question is that the Municipal Judge cannot practice law during his term in office. See Opinion 168.

Questions 1A and B can be answered together. The judge may not maintain the firm name nor use it on the firm letterheads, for to do so would be a violation of Canon 33 which reads in part:

".... In the formation of partnerships ... no person should be admitted or held out as a practitioner or member who is not a member of the legal profession, duly authorized to practice, and amenable to professional discipline. In the selection and use of a firm name, no false, misleading, assumed or trade name should be used. .... When a member of the firm, on becoming a judge, is precluded from practicing law, his name should not be continued in the firm name." (Italics added)

While the Municipal Judge of the City of Tulsa is a member of the legal profession he is not "duly authorized to practice", being prohibited from practice by 5 Okl.St.Ann. 1.

The Board of Governors of The State Bar of Oklahoma in Advisory Opinion No. 77 published in the 1935 Year Book at page 64, passed upon a similar question and there said:

"The Board takes notice of the fact that the office now held by the former partner is quasi judicial in its nature, and that members of the bar, including the members of his former partnership have the privilege of appearing before the tribunal of which the former partner is a member. It therefore holds that Rule 35 (similar to Canon 33) interdicts the use of the name of the former partner in the firm name."

Opinion 77 of the Board of Governors of the State Bar of Oklahoma, supra, in commenting on the use of the judge's name on the stationery said:

"The use of the senior Mr. Smith's name on the firm stationery is too susceptible of misconstruction as to the motive therefor. The impression given to the public generally by the use of the name of the former partner in the firm name would not be one conducive to the honor and dignity of the profession. Rule 31 of the Rules of Professional Conduct enjoins upon a member of the State Bar the duty to 'strive at all times to uphold the honor and to maintain the dignity of the profession'; and, as we frequently have had occasion to observe, it is the duty of a member of The State Bar, not only to avoid all impropriety, but also to avoid all appearance of impropriety."

Questions 1C and D will likewise be answered together.

It is most regrettable that former appointees to the office of municipal judge and the lawyers generally have not informed themselves of the law and followed it to the letter. The fact that the incumbent was 3 years old at the time the law was passed and the further fact that it has been violated for 34 years by others is no waiver or justification for its continued violation.

The answer to question No. 2 must be in the negative.

Question No. 3. If the alternate judge is appointed to a full time position then he cannot practice law. However, if his appointment is not full time but is to serve only for a short designated interval such as one or two weeks then he would only be prohibited from practicing while serving for such period of his appointment.

The legislature in formulating legislative policy undoubtedly was of the opinion that the City of Tulsa needed a full time judge and in their wisdom prohibited him from practicing law.

It is hoped that the Mayor and City Commissioners of Tulsa, either have provided or will provide an adequate salary for the municipal judge so that competent lawyers can afford to hold said office.