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OBA Ethics Counsel

Ethics Opinion No. 58

Adopted October 27, 1933

The Board is in receipt of the following inquiry:

"There are some questions presenting themselves to my mind which may not come directly under your jurisdiction, but am confident that the same, or similar questions have arisen in other parts of the State and that you can give some help on the subject.

There is in .......... a Justice of the Peace who is also a lawyer. For convenience I will refer to him as "A". It is his general practice to permit litigants to come into his court and file suit for various forms of relief, and especially collections. He draws up the pleadings and all papers necessary to procure service:

1. In your opinion does such conduct on the part of A come within the definition of practicing law?

2. A permits the above mentioned suits to be filed without the deposit of costs, and the Constable does his work without receiving any remuneration until the end of the litigation has been brought to a conclusion favorable to the plaintiff.

To make a long story short. A runs a collection agency in competition with the lawyers of ............. It is quite generally considered in certain circles that one needs no lawyer in A's court and that he will take care of the plaintiff's interests. The other Justice of the Peace conducts his office in a businesslike manner, requires a deposit on the suits filed, and according to my way of thinking, operates his office as it should be.

The path of a practicing attorney is certainly narrow and steep, and the Board of Governors requires much of us. It certainly should require no less of Judges. I am taking this step upon my shoulders and will appreciate any information you can give me on the subject."

In response:

The activities of the Justice of the Peace as outlined are indefensible, as they constitute practice of the law. Canon 31 of the Canons of Judicial Ethics of the American Bar Association provides "that a judge should not practice in the court in which he is a judge even when presided over by another judge." The same canon provides that in those states in which a judge of an inferior court is permitted to practice "he occupies a position of great delicacy and must be scrupulously careful to avoid conduct whereby he utilizes, or seems to utilize, his position to further his professional success."

The public policy of this state so far as the office of justice of the peace is concerned is adequately expressed by Section 1885, Oklahoma Statutes 1931, 21 Okl.St.Ann. § 560, which provides:

"Any justice of the peace who shall office with an attorney-at-law; or act as attorney or agent for any party in any action before his court; or receive any fee or compensation other than the fees allowed by law, in any action or proceeding in his court; or be in any manner interested in the result of any such action or proceeding; or take for collection any debt or claim and bring, or allow to be brought, suit on same in his own court, or attempt the collection of same by any notice, letter or process bearing his official seal, signature, or title; or purchase any docket in his possession, shall be punished by a fine of not less than five dollars nor more than two hundred dollars, or imprisonment in the county jail for not more than sixty days, or both such fine and imprisonment."

With reference to the practice of permitting suits to be filed without a deposit for costs, the costs to be collected at the end of the litigation favorable to the plaintiff, see Advisory Opinion No. 8, appearing on page 173 of the Annual Reports of the State Bar of Oklahoma for 1931. The justice of the peace would be disqualified by reason of his pecuniary interest in the decision to be rendered.