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OBA Ethics Counsel

Ethics Opinion No. 253

Adopted March 14, 1968; Overruled by Opinion No. 302 Adopted September 13, 1985.

INQUIRY

May a judge of a municipal court created pursuant to Title 11, Oklahoma Statutes 1961, Sections 958.1 through 958.25, ethically accept appointment or employment to defend persons charged with crime in a court other than the municipal court over which he presides?

OPINION

Title 5, Oklahoma Statutes 1961, Section 1, expressly prohibits one holding a commission as judge of any court of record from practicing law.

The following words appear concerning judges of the municipal courts authorized for cities having a population of 7,000 or more, authorized by the provisions of Oklahoma Statutes 1961, Title 11, Sections 958.1 through 958.25:

"... Nothing herein shall be construed to prevent the judge from engaging in the practice of law in any other court during his tenure of office."

The statute also provides in express words that the courts thereby authorized shall not be courts of record. As a result, the prohibition contained in Title 5, Section 1 does not apply.

Oklahoma Bar Association Legal Ethics Opinion No. 172 dated September 16, 1953, held that the judge of the Municipal Court of the City of Tulsa, is forbidden to practice, in either the civil or criminal field. The basis for this decision was the fact that the Municipal Court of Tulsa was expressly designated as a court of record. Hence, the prohibition outlined in Title 5, Section 1, Oklahoma Statutes would apply.

In paragraph 1 of the Answer in Legal Ethics Opinion No. 162 of the Oklahoma Bar Association (this opinion was withdrawn and replaced by Opinion No. 175), it is recognized that a Justice of the Peace or a Police Court Judge are not prohibited from practicing law in courts other than their own.

Canon No. 31, of the Canons of Judicial Ethics of the American Bar Association, 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 the 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."

Formal Opinion No. 138 of the Committee on Professional Ethics of the American Bar Association, dated May 9, 1935, states:

"It is not per se improper for a judge of an inferior court of a state, who is permitted by the laws of his state to engage in private practice, to accept employment from a person charged with a federal crime and to represent that person before a federal court even though the judge may have tried and sentenced the client in his own court for a different offense three years previously."

The opinion just cited takes the position that in most cases the answer to the question must be left to the sense of propriety of the judge himself.

Formal Opinion No. 55, of the Committee on Professional Ethics of the American Bar Association, dated December 14, 1931, recognizes the principle that a police judge and juvenile judge could defend persons charged with offenses in the District Court, if not forbidden to do so by state law. This opinion deals primarily with the propriety of the defense of indigent prisoners by a police court judge and a juvenile court judge acting under appointment by another court, on a showing that no adequate representation was otherwise available to the accused.

There are other opinions, both formal and informal of the Committee on Professional Ethics of the American Bar Association dealing with the subject of the question now under consideration. To discuss each in detail would tend to lengthen this opinion without accomplishing any useful purpose. Suffice it to say that each of these opinions emphasizes the statement contained in Canon of Judicial Ethics Number 31, with reference to a judge practicing law, as follows:

"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 where he utilizes or seems to utilize his judicial position to further his professional success."

In the opinion of this Committee, Formal Opinion No. 242, of the Committee on Professional Ethics of the American Bar Association, dated June 20, 1942, represents the best thought out opinion on the subject. This Opinion was in answer to the following question:

"In a city of 30,000, the police judge, whose jurisdiction is limited to trials of misdemeanors and examinations in felony cases, holds court for not exceeding an hour a day. His salary is $125.00 per month. May he, ethically, represent defendants in criminal cases in the Circuit Court (a) if employed before he became police judge, and (b) if employed thereafter and the examination was not before him?"

In its opinion the committee reproduces in full, the Preamble to the Canons of Professional Ethics, as follows:

"In America, where the stability of Courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing Justice be developed to a high point of efficiency and maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic, to a great extent, depends upon our maintenance of Justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.

No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of profesional [sic] life. The following canons of ethics are adopted by the American Bar Association as a general guide, yet the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned."

In commenting on the propriety of a judge engaging in the practice of law, the opinion has this to say:

... The amount of salary attached to the judicial office has no bearing on the ethical questions under consideration.

Nor does the fact that the compensation provided for the office is meagre furnish a justification. With every benefit, there is a corresponding burden. If one is not willing to undertake the burden, he should not accept the benefit of the office.

Nor will the decision turn on the relation of the time of the employment to the time of the election to office. The ethical question is the same whether the lawyer's employment preceded or followed his election as Judge.

The Canons voice recognition of the traditional duty of lawyers and judges to conduct themselves so as to preserve public confidence in the integrity of our courts. By acceptance of judicial office the lawyer becomes a direct medium for administering justice. The duty referred to is correspondingly increased."

Opinion No. 242 continues:

"... It is the duty of the judge to rule on questions of law and evidence in misdemeanor cases and examinations in felony cases. That duty calls for impartial and uninfluenced judgment, regardless of the effect on those immediately involved or others who may, directly or indirectly, be affected. Discharge of that duty might be greatly interfered with, if the judge, in another capacity, were permitted to hold himself out to employment by those who are to be, or who may be, brought to trial in felony cases, even though he did not conduct the examination. His private interests as a lawyer in building up his clientele, his duty as such zealously to espouse the cause of his private clients and to defend against charges of crime brought by law-enforcement agencies of which he is a part, might prevent, or even destroy, that unbiased judicial judgment which is so essential in the administration of justice.

In our opinion, acceptance of a judgeship with the duties of conducting misdemeanor trials, and examinations in felony cases to determine whether the accused should be bound over for trial in a higher court, ethically bars the judge from acting as attorney for the defendants upon such trial, whether they were examined by him or by some other judge. Such a practice would not only diminish public confidence in the administration of justice in both courts, but would produce serious conflict between the private interests of the judge as a lawyer, and of his clients, and his duties as a judge in adjudicating important phases of criminal processes in other cases. The public and private duties would be incompatible. The prestige of the judicial office would be diverted to private benefit, and the judicial office would be demeaned thereby. Such conduct would violate Judicial Canons 24 and 31 and Canons 6 and 29 of the Canons of Professional Ethics.

The Questions presented must be answered in the negative."

This Committee believes that rather than answer the narrow question propounded as the basis for this opinion, that it should adopt an even broader rule of ethics than such answer would permit. Therefore, it is the opinion of this committee that (a) It will not be unethical for judges of courts not of record in Oklahoma to accept appointment by higher courts to defend indigent defendants, where such defendants were not bound over to the higher court for trial by the judge being appointed, and where adequate representation would not otherwise be available to the accused. If adequate representation for such indigents is readily available within the jurisdiction of the appointing court, it is the opinion of this committee that judges should not be appointed as defense counsel in criminal cases. (b) It is the opinion of this committee that except as authorized in (a) above, Judges having jurisdiction to try misdemeanors and to bind defendants in felony cases over for trial in higher courts should scrupulously avoid accepting employment in criminal cases as defense counsel, whether or not the judge in question bound the defendant over to the higher court for trial.