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OBA Ethics Counsel

Ethics Opinion No. 279

Adopted June 22, 1974

INQUIRY

May a part-time municipal judge in a court not of record who also conducts a private law practice represent a client seeking to have a platted street in such municipality vacated?

OPINION

The inquiry is answered in the negative.

The lawyer submitting the inquiry holds an appointment as municipal judge in a municipality to which 11 O.S.1971, § 958.7(a) is applicable, providing in part that "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." His client seeks to have a platted but unopened street vacated, which he states may involve appearances before the planning commission having jurisdiction, the city council and the district court.

Section 31 of the Canons of Judicial Ethics provides in pertinent part, as follows:

"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 practises 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."

Section 24 of such Canons provides:

"A judge should not accept inconsistent duties; nor incur obligations, pecuniary or otherwise, which will in any way interfere or appear to interfere with his devotion to the expeditious and proper administration of his official functions."

Of necessity, in any proposal to vacate a street, the interest of the public at large is involved, and the designated representatives of the public, such as planning commissions and the city council, have the responsibility of making a determination as to the course of action which would best serve the interests of the residents of that area. A municipality may well determine to oppose the vacation of a street in judicial proceedings. See 11 O.S.1973 Supp. §§ 523(B), 524.

A municipal judge is entrusted with the responsibility of administering and interpreting the body of municipal ordinances of his jurisdiction and other relevant and pertinent laws and regulations. He acts in this capacity as the representative of the citizens of the municipality. The public at large resident in the municipality should be regarded as occupying a position at least equivalent to that of a client of a municipal judge, and he is bound not to accept employment inconsistent with this relationship. As stated in Ethical Consideration 5-14:

"Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."

And a lawyer should avoid even the appearance of professional impropriety. Canon 9. Even if the judge's employment on behalf of the city is limited to relatively minor criminal matters, as the American Bar Association Ethics Committee said in Formal Opinion No. 186 (1938), holding that a county attorney who represents the county only in civil matters cannot represent criminal defendants:

"(F)or the county attorney charged with public duties to accept employment adverse to this public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer and bring reproach to his profession."

In Legal Ethics Opinion No. 253, 39 Okla. Bar J. 536 (1968), it was held that it was unethical for a judge of any court to accept employment in criminal cases, with the limited exception that a judge of a court not of record could accept appointment by a higher court as defense counsel for an indigent when adequate representation is not otherwise readily available. This prohibition was deemed to flow from the conflict inherent in discharging judicial duties in the enforcement of the criminal laws on the one hand, and defending private clients against criminal charges on the other, as discussed in American Bar Association Formal Opinion No. 242 (1942), quoted at length in Opinion No. 253.

The possible conflicts of interest encountered by a lawyer engaged in both public and private practice have been the subject of a number of ethics opinions. To cite only a few, it has been held by this Committee that a partner or associate of an attorney representing a board or commission of a city may not appear before other boards or commissions of the city, Opinion No. 257, 40 Okla. Bar J. 1252 (1969); that an associate of an assistant district attorney may not represent criminal defendants or accept any other employment adverse to the state, Opinion No. 254, 39 Okla.Bar J. 539 (1968); and that an attorney who is a member of the Pardon and Parole Board may not represent clients in criminal proceedings, Opinion No. 245, 38 Okla.Bar J. 636 (1967). Further, where public employment is involved, a conflict cannot be cured by consent of the client. Opinion No. 257, 40 Okla.Bar J. 1252, 1254 (1969).

Since the interests of a private client who seeks the vacation of a street could conflict with those of the public at large of a municipality, a municipal judge of that municipality should not undertake the representation of such a private client at any stage of the proceedings.