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OBA Ethics Counsel

Ethics Opinion No. 246

Adopted February 23, 1967

The Board of Governors of the Oklahoma Bar Association has requested the Committee to write an Opinion answering the following question:

INQUIRY

1. A and B are full time partners and engaged in the general practice of law.

2. A has been elected County Judge.

3. B has been elected to be the District Attorney's Assistant.

4. B, as Assistant District Attorney, expects to continue in the general practice of the firm and occupy their joint offices in the afternoon down town and the office at the Courthouse in the morning, paying A a stipulated amount each for the use of their joint facilities comprised of office building, library, etc.

Can B, as Assistant District Attorney, legally engage under these circumstances in the general practice of Law?

Will A be disqualified to sit as judge in any contested matter where B represents one of the parties?

OPINION

1. An Assistant District Attorney in Oklahoma is not per se prohibited from engaging in the practice of law. Such right is governed by the provisions of 19 Okla. St. 215.15, which provides as follows: "* * * Assistant District Attorneys shall be paid not less than sixty per cent (60%) nor more than ninety per cent (90%) of the salary of the District Attorney, payable monthly. All Assistant District Attorneys who are paid in excess of sixty-five per cent (65%) of the salary of the District Attorney shall not engage in the private practice of law, but may complete pending cases of a civil nature, not in conflict with the interest of any county of the district in which he is appointed * * *."

In view of the above statute, it is the opinion of this Committee that if the Assistant District Attorney is paid in excess of sixty-five per cent (65%) of the salary of the District Attorney, it is unlawful for such Assistant District Attorney to engage in the general practice of law. In the event the Assistant District Attorney is paid sixty-five per cent (65%) or less of the salary of the District Attorney, he may engage in the private practice of law in any case of a civil nature, not in conflict with the interest of any county of the district in which he is appointed.

2. Oklahoma Constitution, Art. 2, § 6, provides as follows: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to persons, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Also, 22 Okla. St. 571 sets out specific grounds for disqualification of a judge and the concluding sentence of this section is as follows: "... Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law." Therefore, this Committee concludes that those things which would disqualify a judge at common law will disqualify him in Oklahoma today, even though not specifically enumerated in the above cited statute.

In the case of Young v. State, 74 Okl.  Cr. 64, 123 P.2d 294 (1942), the Court held, prejudice as used in this section, guaranteeing to every person charged with an offense a trial without prejudice, as applied to a judge, means personal prejudice or bias against the defendant, and not that the judge may not have an opinion as to the guilt or innocence of a defendant, or be prejudiced against the crime with which he is charged. This deals with a criminal proceeding, and appears to hold that unless the judge is prejudiced against or for the defendant, irrespective of any kindly feeling for or against the defendant's attorney, the judge is not disqualified to sit In both criminal and civil matters, decided cases hold that the judge is not disqualified to sit where in either a civil or criminal action, he can give the parties a fair trial.

In Informal Decision 594, the American Bar Association Standing Committee on Professional Ethics had the following to say with reference to a judge sitting in cases where his former firm is counsel: (We omit certain parts of the opinion and reproduce here that portion which we believe to be pertinent to the question before us) "... There is no Canon of Judicial Ethics which would preclude a judge from sitting in a case merely because his former firm is counsel in such case. However, the Committee feels that good taste and a desire to avoid any seeming impropriety might cause a judge to decline to sit in the following cases where his former firm is counsel:

(a) Where the case was in the firm at the time he was a member; or

(b) Where a regular client of the firm at the time he was a member is a party to the case; or

(c) Where a son or other near relative employed by the firm has actively participated in the case either in the trial court or on appeal.

Our Committee (Referring to the American Bar Association Committee) also feels that there would be no seeming impropriety or lack of good taste in the judge sitting in other cases, particularly after the lapse of several years. The former firm and its clients are entitled to the judgment of the Court on cases presented, just as in the case of other parties, unless there is disqualification of the character indicated above which would cause the judge to decline to sit. In the final analysis it must be left to the judgment and conscience of the individual judge."

Judicial Canons (Canons of Judicial Ethics) 4, 13, and 26 require that a judge at all times avoid any appearance of suspicion or impropriety.

It was indicated in the question that a stipulated amount would be paid to the judge by his former partner for the use of the partnership offices, building, and library. This Committee feels that the amount paid for these facilities should be reasonable in all respects under the circumstances, and if the amounts paid were greater than the value of the reasonable rental of the facilities, this Committee would feel that it would amount to a sharing of profits with the judge and his former law partner and this would be unethical. We leave this matter to the conscience of the participants until it is again brought to our attention.

Therefore, this Committee adopts as its opinion the opinion of the American Bar Association Standing Committee on Professional Ethics, as set forth above in Informal Opinion No. 594, and is of the opinion that except in the circumstances set forth in subparagraphs (a), (b) and (c) above and in cases where due to any circumstances whatever the judge cannot give the parties before him a fair trial, a judge may sit on cases before him where the parties are represented by his former law partner.