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OBA Ethics Counsel

Ethics Opinion No. 51

Adopted March 24, 1933

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

"We would like to submit to you the following proposition and have you give us an advisory opinion.

T is County Judge; his father is a member of the firm of XYZ. Is it proper for the father of T to appear in a court presided over by T in the trial of cases, and is it proper for any member of the firm of which T's father is a member to appear before him in the trial of a case?

Further, is it proper for the father of T, or a member of the firm to which he belongs, to appear before T in a probate case, where the fee is fixed by said County Judge, and what would be the consequence of a practice of this kind being continuously carried on?"

The Board is of the opinion that there is no established canon or rule of ethics by which the practice suggested in the first section of the inquiry is specifically condemned. However, it approaches so closely to the line of strict propriety as to call upon both the father and son for the most careful exercise of caution in order that no party to the litigation or proceeding may in the slightest degree feel that there is a blending of judicial discretion with family affection or interest.

As stated of the Judge in section 13 of the Code of Judicial Ethics adopted by the American Bar Association:

"He should not act in controversy where a near relative is a party; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position or influence of any party or other person."

While this rule primarily involves the parties to the proceeding, yet, by the use of the words "or other person," it is manifest that the lawyer might be included in this caution against the appearance of judicial impropriety.

As stated in Section 4 judicial code of ethics--American Bar Association:

"A judge's official conduct should be free from impropriety and the appearance of impropriety;__"

While not condemning, we feel that the practice should be discouraged and, in every event, exercised with extreme caution.

Concerning the second section of the inquiry, the Board is of the opinion that the same course of reasoning is applicable as to the first but with the additional suggestion that, if any form of controversy, as to the amount of a fee, is involved between the attorney or the firm, of which the father is a member, and the administrator, executor or guardian, then, in such a case, it is our opinion that the Judge should disqualify.