REMOVAL OF RETAINED ATTORNEY

Opinion No. 78 (1985)


QUESTION: Under the Code of Judicial Conduct, does a judge have the authority, in a criminal case, to remove a retained attorney for ineffective assistance of counsel?

ANSWER: No. The Committee is of the opinion that the action or removal of an attorney by a judge is a matter of law, not a question of ethics. Although the Code of Judicial Conduct, Canon 3B(3) provides that "a judge should take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge may become aware," it does not authorize a judge to remove or take disciplinary action. The intent of Canon 3B(3) is to advise a judge that it is unethical for a judge not to fulfill the responsibilities that the law places upon him; in this instance, to initiate appropriate action when he becomes aware of unprofessional conduct by a lawyer. See Guillory v. State, 557 S.W.2d 118, 121 (Tex. Crim. App. 1977) for types of appropriate action a judge may initiate.