A brand new ethics opinion from the Texas Center for the Judiciary makes clear what I have argued for years: it is not ethical to allow a part-time Associate Judge to also practice law. The opinion states:
Ethics Opinion Number 296 ( 2013 )
PRACTICE OF LAW BY PART-TIME JUDGE
FACTS: An attorney has been appointed as a part-time family law associate judge by the district judge. The associate judge continues to represent family law clients before other district courts of that county and before courts in other surrounding counties.
QUESTIONS: May a part-time family law associate judge, appointed by a court, represent family law clients before any of the other courts
1. in that county?
2. in surrounding counties?
The committee answers Question 1 “No.”
The committee answers Question 2 with a qualified “No.”
DISCUSSION: A part-time associate judge appointed by a court is governed by the Code of Judicial Conduct. Canon 6D. As stated in Canon 6D(1)1, certain portions of the Code of Judicial Conduct do not apply to part-time judges, including the prohibition set out in Canon 4G that a judge may not practice law.
However, the following provisions of the Code do apply to a part-time judge, and are relevant to the stated inquiry:
Canon 6D(2) states that a part-time judge “should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto.”
Canon 2A provides that “a judge . . . should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 2B provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge….”
Canon 4A provides that “a judge shall conduct all of the judge’s extra-judicial activities so that they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge….”
Canon 4D provides, “A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or person likely to come before the court on which the judge serves….”
The committee believes that it is inconsistent with Canons 6D(2), 2A, 2B, 4A and 4D(1) for a part-time family law associate judge, appointed by a court, to represent clients before any court of the county in which he or she is appointed and before courts in the counties surrounding the county in which he or she is appointed, provided that those courts are “subject to the appellate jurisdiction of the court which he or she serves”. If a part-time judge chooses to practice before any other court, the judge must be aware of the obligations under the Code of Judicial Conduct, and practice consistent with these obligations, especially Canons 2A, 2B, 4A and 4D(1).
The roles of advocate and impartial judge are in opposition to each other, and a judge may not use the authority of judicial position to advance one’s private interests as an advocate. As stated in Opinion 288 (2003),
A built-in dilemma exists in our justice system when a part-time judge also maintains a law practice. Under the Texas Disciplinary Rules of Professional Responsibility a lawyer has an obligation to zealously represent his client within the bounds of the law. When that lawyer also serves as a judge, however, his [or her] duty as a judge is to be impartial and to promote public confidence in the integrity and impartiality of the judiciary. The Committee stresses to all part-time judges to keep this conflict in mind when choosing to accept representation.