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OBA Ethics Counsel

Ethics Opinion No. 34

Adopted July 22, 1932

The Board of Governors is in receipt of the following request for an advisory opinion:

"The Oklahoma law provides that a County Judge may not practice law except in cases commenced before he is conducted into office.

"Please give me your opinion as to whether or not it would be a violation of the law to continue to handle the collections received prior to taking office on which suit has not been brought.

"My reason for asking this question is I came from Kentucky where the law is different along that line and on the face of the returns have received the nomination for County Judge of this county which if correct means election as there is no further opposition.

"Thanking you in advance for your opinion as I have around 15 or $20,000 of collections on my hands all of which I can not collect prior to taking office."

In response:

Section 4093, C.O.S.1921, 5 Okl. St. Ann. § 1, passed by the Territorial Legislature in 1903, provides that

"No person shall practice as an attorney and counselor at law in any court of this State ... who holds a commission as 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."

In Lilly v. State, 7 Okl. Cr. 284, 123 P. 575, it was held that the statute expressly prohibits judges of the courts of record of this state from practicing in any of the courts of this state during the term for which they hold such offices, and only permits such judges to finish any business undertaken by them in the various United States courts. Of course, the county court of the state is a court of record.

However, Section 3184, C.O.S.1921, 20 Okl. St. Ann. § 288, which was passed by the Territorial Legislature in 1890 and was carried over at Statehood, provides:

"A judge of the county court shall not be counsel or attorney in any civil action for or against any executor, administrator, guardian, trustee, minor or other person over whom or whose accounts he has or by law would have jurisdiction, whether such action relates to the business of the estate or not."

Were it not for Section 4093, C.O.S.1921, 5 Okl. St. Ann. § 1, it would seem that county judges would not be prohibited from practicing law in this state except in the instance specified in Section 3184, C.O.S.1921.

But it is apparent that Section 3184 was superseded by Section 4093, and that the law is that county judges are prohibited from practicing law in this state except in the instance referred to in Section 4093.

But, this holding does not answer the inquiry because it has been held that the mere collection of accounts does not constitute practice of law-practice of law commencing with the institution of proceedings. It is clear, however, that a county judge in this state cannot institute and prosecute suits upon accounts even though intrusted to the care of an attorney who subsequently became the county judge.

The Board is of the opinion that since the passage of Section 4093 it was the public policy of the Territory of Oklahoma and of the State of Oklahoma, that a county judge should give all of his time and attention to the duties of his office; and, in view of the fact that the office of county judge brings the encumbent [sic] into a close relationship with the people and the affairs of the people of the county, that it would tend to bring the county court into disrepute were the judge of that court to engage in the collection business. For that reason the Board is of the opinion that a county judge should not engage in that business, irrespective of whether or not the business was intrusted to him before or subsequent to his election to office.

In this conclusion we are supported by the provisions of Canons 4 and 31 of Judicial Ethics adopted by the American Bar Association. (Vol. 56, Reports A.B.A. page 808 et seq.) Canon 4 states that "a judge's official conduct shall be free from impropriety and the appearance of impropriety." Canon 31 states "In such cases (practice of law by a judge) 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."

The Board feels some delicacy in rendering an advisory opinion concerning the propriety of the proposed action of a judge of a court of record inasmuch as there is some doubt as to the Board's jurisdiction, so to speak, concerning the actions of such judges. Inasmuch, however, as the opinion is requested in good faith and with the apparent desire to observe the proprieties, by a member of the State Bar who is about to assume the duties of the office of county judge, it feels warranted in answering the inquiry.