OPINION 173
March 1958

DISQUALIFICATION - PRIVATE PRACTICE BY JUDGES - It is improper for a judge to disqualify himself to accept employment as an attorney in a probate matter handled in his court before a special judge.

FIRM NAMES - PARTNER AS ADVOCATE BEFORE JUDGE - If a member of a firm becomes a judge, his name should be deleted from the firm name. He cannot maintain a partnership and act in his judicial capacity upon cases filed in his court by his partner even though filed in his partner’s name only.

Canons 3033.

Question

A county judge on several occasions disqualified himself from serving as judge and accepted employment as counsel for the applicant in will probate cases filed in his court. In one case the judge had previously acted as the attorney of the deceased in preparing the will. In another the judge was distantly related to the deceased. But in most of the cases there was no prior connection between the judge and the deceased or the legatees and devisees of the deceased. The county judge is named as one of the partners in a partnership with another lawyer in the community. His partner is often counsel for applicants in probate matters handled in the judge’s court. The county judge does not participate in fees derived from any matters handled in his court by his partner.

 1. May a county judge properly disqualify himself and then ethically accept employment as an attorney in a probate matter handled in his court before a special judge? Is the conclusion any different in the event that the judge, prior to his becoming county judge, or prior to the inception of the case, had represented one or more of the parties involved?

2. May an attorney who is county judge maintain a partnership for the practice of law with another attorney in the community, using his name and that of the other attorney, and act in his judicial capacity in cases filed in his court by his partner in his partner’s name only? Is the conclusion any different if it appears that the county judge does not participate in the fee derived from the case filed in his court, but does participate in the general fees collected by the partnership in other matters?

Opinions

1. A county judge may not disqualify himself and then accept employment as an attorney in a probate matter handled in his court before a special judge. This conclusion would not be any different in the event that the county judge, prior to becoming county judge, or prior to the inception of the case, had represented one or more of the parties involved. Article 319 of the Revised Civil Statutes of Texas provides that no county judge shall be allowed to appear and practice as an attorney at law in any county or justice court, except in cases where the court over which he presides has neither original nor appellate jurisdiction. See also Articles 402 and 402 of the Penal Code and Opinion 13 of this committee. Even though the county judge would have to disqualify himself from acting as judge in the matter because of his prior representation of one or more of the parties involved, he could not then represent such parties in the matter being handled in his court by the special judge after his disqualification. Public officials should act with the utmost caution at all time to avoid any suspicion on the part of the public that there is some influence operating on the court in the handling of matters before it and they should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice. For a judge to disqualify himself from time to time and then appear in his own court, even though it be before a special judge appointed in each instance, would tend to arouse suspicion on the part of the public that there could be some influence operating on the court in handling the matters in his court. (6-2)

2. An attorney who is county judge should not maintain a partnership for the practice of law with another attorney in the community, using his name and that of the other attorney, and act in his judicial capacity in cases filed in his court by this partner in his partner’s name only. This conclusion would not be any different if it appears that the county judge does not participate in the fee derived from the case filed in his court, but does participate in the general fees collected by the partnership in other matters. Canon No.30 provides that if a member of a firm becomes a judge his name shall not be continued in the firm name. The retention of the judge’s name in the firm name would tend to create the impression that the firm possesses influence with the judge, and, in consequence, tend to impel those in need of legal services in connection with matters before the judge to employ the firm. The relations of parties in a law firm are so close that the firm, and all the members thereof, should be barred from accepting any employment that any one member of the firm is prohibited from taking, therefore, the partner of the county judge should not accept employment in cases which the county judge himself would be disqualified to accept. See Opinion No.23 of this committee and Opinion No.142 of the Committee of Professional Ethics of the American Bar Association. (5-3)