OPINION 256
February 1963

JUDGE BORROWING MONEY FROM A LAWYERA ruling on 332 the conduct of a judge of a court of record who borrows money from individual attorneys who practice in his court would require an opinion outside the scope of the present Canons and, consequently, the functions of this committee.

LAWYERS LENDING MONEY TO JUDGESWhether or not a lawyer's lending money to a judge violates the Canons of Ethics is an open question depending upon the lawyer's intent, determined by the size of the loan and other surrounding circumstances.

Canon 3.

Question

1. Is it improper for an attorney who is also the judge of a court of record to borrow money from individual attorneys who practice in his court? The loans are sometimes evidenced by a promissory note but are otherwise unsecured.

2. Is it improper for an attorney to lend money to a judge under the above conditions?

3. Is it improper for an attorney who is a judge of a court of record to pass his personal check in exchange for cash when he knows at the time that he does not have sufficient funds on deposit to cover the check? The person cashing the check is not misled or deceived but knows that in all probability that he will have to hold the check for a period of time.

Opinion

The first and third of the above questions relate to the conduct of a lawyer who is a judge, and the second to a lawyer lending money to a judge.

The Texas Canons apply to all lawyers, including judges. The Canons generally relate to the professional conduct expected of a lawyer in the light of the work and the functions of a lawyer. Accordingly, they are not well designed to apply to the conduct of a lawyer while performing the functions of a judge, and for this reason the A.B.A. in 1924 adopted Canons of Judicial Ethics. The Canons of Judicial Ethics (while now being considered) have not been adopted in Texas, and the Rules of the State Bar of Texas do not list a violation of the A.B.A. Canons of Judicial Ethics as a ground for disciplinary action. See Art. XII, Sec. 8, Rules of the State Bar. Therefore, a violation of the A.B.A. Judicial Canons is not a ground for disciplinary action, unless otherwise it is professional misconduct within the definition of Art. XII, Sec. 8. Texas Opinion 47 (1952); but cf. Opinions 116 (1955), 135 (1956) and 151 (1957).

For a judge of a court of record to borrow money from individual lawyers who practice in his court gives the appearance of impropriety, and this is particularly true where the debt is not well secured and is more than merely nominal in size and if the borrowing occurs with any degree of regularity.

Under Judicial Canon 4, the conduct is unethical; see A.B.A. Opinion No. 89. The conduct also does not conform to Judicial Canon 32, prohibiting the acceptance of favors by a judge from lawyers practicing before him. Also, see Judicial Canon 24. But, unfortunately, those Canons have not been adopted in Texas; and the committee finds no Texas Canon which is violated.

Texas Opinions 116, 135 and 151, listed above, which declared conduct to be unethical when A.B.A. Judicial Canons were violated surely meant that such conduct was unethical as not complying with the general standards of propriety to which one should conform even though he will not be subject to disciplinary action for failing to do so. These opinions cannot be interpreted as meaning that one may be disciplined in Texas for failure to conform to A.B.A. Judicial Canons which have not been adopted here (and which may in some particulars be at cross-purposes with normal Texas procedures). In recent years this committee has not relied upon the A.B.A. Judicial Canons, and this is as it should be for the reason that Canons and rules forming the basis for disciplinary action against lawyers are penal in nature (even though the action is a civil action) and may interfere with the lawyer's duty to his client unless such Canons and rules are clear and specific. See Thode, "The Ethical Standards for the Advocate," 39 Texas Law Rev. 575 (1961).

Conceivably in some situations the conduct referred to in Question 1 might violate Art. 159, P.C. If so, the conduct should be considered unethical under Art. XIII, Sec. 2, and under the "fraudulent or dishonorable" clause of Art. XII, Sec. 8. See opinion 207 (1960). It would seem that any misconduct falling within Art. XII, Sec. 8 is "unethical." However, the committee does not have sufficient facts to determine whether Art. 159 is violated, and even if such facts were available, the committee probably should refrain from making that interpretation of a statute. See opinion 220 (1959). Assuming that there is no violation of Art. 159 or other statute controlling his professional activities, the judge's conduct in question, however deplorable, does not in Texas violate the minimum requirements of professional ethics.

Consideration has been given to the question of whether or not the action described in Question 1 could be considered "fraudulent or dishonorable conduct." The committee's conclusion, however, is that the term "fraudulent or dishonorable conduct" must not be applied too broadly and should be limited to (in addition to the professional regulatory laws referred to in Sec. 2) conduct which constitutes actionable fraud and conduct which constitutes the commission of an infamous crime or a crime of moral turpitude. The remainder of Sec. 8(a) seems to indicate that this was the intention of those framing the rule, leaving Sec. 9 to deal with the effect of a criminal conviction. Following this line of reason, the committee believes that, though the judge's action may well not come up to the standards which should be set for a lawyer acting in that position, it is not unethical in the sense that disciplinary action can follow.

With reference to the second question, the committee does not think that a lawyer who lends money to a judge necessarily violates the Canons of Ethics. Canon 3 does not condemn all hospitality and attention to a judge. Only "Marked attention and unusual hospitality . . . should be avoided" where such acts constitute "attempts to exert personal influence on the court." The committee feels that, in the matter of a lawyer's lending money to a judge, the basic problem is one of the intent of the lawyer and, as it has in this instance no knowledge of the size of the loans in question or other surrounding circumstances, it must conclude that the question is an open one as to whether or not Canon 3 was violated.

From the wording of Question 3, it is to be assumed that the passing of the check in question does not constitute theft by false pretenses, passing hot checks, or the like. Therefore it would seem to the committee that this is just another device for borrowing money. This makes Question 3 substantially the same as Question 1. Canons 3 and 29 are not applicable because they are directed toward the lawyer dealing with the judge and not toward the judge. As stated in answering Question 1, the minimum requirements of the Texas professional ethics have not been violated even though one may feel that an ethical judge should not conduct himself in this way and one may also feel that the laws should provide for removal of a judge who so conducts himself.

Whether the judge's conduct mentioned in Question 1 and 3 constitutes "official misconduct" within the meaning of Art. XI, Sec. 6, Texas Constitution, is not before this committee. (9-0.)