OBA Ethics Counsel
Ethics Opinion No. 302
Adopted September 13, 1985
May a lawyer who serves as a judge of a court not of record act as defense counsel in criminal cases filed in other courts?
A lawyer who serves as a judge of a court not of record may act as defense counsel in criminal cases in other courts. OBA Opinion No. 253, 39 Okla. Bar J. 530, 523-526 P.2d West's Okla. Decisions Adv. Op. at 30 (March 14, 1968), overruled.
The basis for this inquiry is the situation existing in a number of less-populated counties where lawyers serve as part-time municipal judges in communities whose municipal courts are established pursuant to 11 O.S. 1981, §§ 27-101-27-132, and are not courts of record. (5 O.S. 1981, § 1 forbids judges of courts of record to practice law in any event.) Some such lawyers are called upon to accept appointments to defend indigent defendants in the district court; others wish to accept employment to represent defendants in criminal cases.
The problem arises from OBA Opinion No. 253, 39 Okla. Bar J. 530, 523-526 P.2d West's Okla. Decisions Adv. Op. at 30 (March 14, 1968), which appears to hold that where adequate representation of indigents is available, even judges of courts not of record should not be appointed to defend such indigents. By necessary implication, this would preclude such lawyers from voluntarily accepting employment in criminal cases in any event. However, a review of opinion No. 253 and the authorities discussed therein reveals that they do not constitute authority for the conclusion reached.
The code of Judicial Conduct in Canon 5(F) and in Section A of the "Compliance" Section contemplates that a lawyer serving as a municipal judge on a part-time basis is permited [sic] to practice in courts other than the one in which the lawyer serves as a judge, with no restriction on the type of cases which may be accepted. This is also specifically approved by 11 O.S. 1984 Supp. § 27-104 so long as the municipal court in question is not in a city of more than 200,000 population. (For cities of more than 200,000 population, the municipal criminal court is a "court of record," 11 O.S. 1981, § 28-101, and 5 O.S. 1981, § 1 would forbid a judge of such a court to engage in the practice of law.)
The OBA and ABA opinions discussed in OBA Opinion No. 253 generally stand for the proposition that a part-time judge who is permitted by statute to engage in private practice may do so in other courts. The only exception was ABA Opinion 242 (1942), where it was held that a "police judge" who conducted misdemeanor trials and held preliminary hearings in felony cases which then proceeded into the regular court system should not act as defense counsel in other criminal matters in that court system. That does not constitute a precedent for the factual situation presented by this inquiry.
It is therefore held that subject to the lawyer's compliance with the applicable portions of the Code of Judical [sic] Conduct with the applicable portions of the Code of Judical [sic] Conduct (i.e., those relating to part-time judges), and the relevant statutory provisions (11 O.S. 1984 Supp., § 27-104 and 5 O.S. 1981 § 1), municipal judges of courts not of record may defend persons accused of criminal conduct in proceedings pending in courts in which the lawyer does not serve as a judge.