Ethics Opinion Number 290 (2004)

Ethics Opinion Number 291 (2005)

Legal Representation of Judge or Court Staff by County Attorney

QUESTION: Would it be a violation of the Code of Judicial Conduct for a judge or the Judge's staff to be represented by the County Attorney in court proceedings wherein the judge and/or the court staff have been sued in their official capacity, even though the judge presides over cases in which the County Attorney, or an Assistant County Attorney, represents the State in mental health and indigent guardianship matters, and the County in various areas of civil litigation involving its various departments, agencies, and programs?

ANSWER: No. The Committee expresses no opinion concerning the legality of any given type of legal representation. Legal representation by the County Attorney is established by the Constitution and laws of the State of Texas. Assuming that a given type of representation is authorized by law, and further that there are no other facts present which would otherwise require recusal or disqualification under Canon 3(B)(1), the Committee is of the opinion that the judge can be represented by the County Attorney and continue to preside over other matters in which the County Attorney is appearing as legal counsel.

Ethics Opinion Number 292 ( July 2006 )

Solicitation of Wedding Business

QUESTION: May a judge directly contact couples as they leave a county clerk’s office with their marriage license for the purpose of soliciting a marriage ceremony for pay?

ANSWER: No.

Canon 2A states in part “ A judge….. should act at all times in a manner that promotes public confidence in the integrity …of the Judiciary.” It is the belief of the Committee that a judge’s active solicitation of wedding business in this manner does not promote public confidence in the judiciary.

The judge should also be mindful of the restrictions of Canons 2B and 4D. Canon 2B prohibits using the “prestige of judicial office to advance the private interests of the judge or others.” Canon 4D requires judges to “refrain from financial and business dealings that tend to …exploit his or her judicial position.” Solicitation of wedding business in this manner is a use of the prestige of judicial office to advance the judge’s private interests and constitutes financial and business dealings that exploit the judge’s judicial position.

Canon 4I (1) provides, “A judge may receive compensation…for the extra-judicial activities permitted by this Code, if the source of such payment does not…give the appearance of impropriety.” The committee believes that the acts described above give the appearance
of impropriety.

Ethics Opinion Number 293 ( 2007 )

Judge Winding Down Legal Practice

A practicing attorney has been appointed (or elected) as a judge, and has taken the constitutional Oath of Office.

QUESTION 1: May the judge appear on behalf of a client in a federal district court in another state for the limited purpose of representing the defendant in a sentencing hearing to be concluded shortly after the judge takes office?

ANSWER 1: No, Canon 4(G) provides as follows: “A judge shall not practice law except as permitted by statute or this Code.” No statute or provision of the Texas Code of Judicial Conduct would permit such a practice.

QUESTION 2: Can the judge continue to represent a client through mediation in a state court lawsuit in which liability is not contested and the only remaining issue is the dollar amount of settlement necessary to conclude the case?

ANSWER: No, for the same reason as set out above. Although mediation does not involve appearance before a court, representation of clients as described would involve the practice of law and would be prohibited by Canon 4(G).

QUESTION 3: Regarding the judge’s remaining civil and criminal cases, may the judge refer the cases to other attorneys and with the consent of clients, and if permissible under the law generally relating to referrals, collect referral fees?

ANSWER: Yes, so long as the referrals and agreements are otherwise permitted by law, the judge may receive referral fees after taking office for work performed and referrals made prior to taking office. Section 33.051 of the Government Code provides criminal penalties for referral of cases for a gift or fee after taking office.

The judge should be mindful, however, that the pendency of referred cases could lead to violations of other provisions of the Code. The judge should at all times be careful to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2(A)). The judge should be most careful not to lend the prestige of judicial office to advance the private interests of others, including the attorneys and parties involved (Canon 2(B)). Finally Canon 4(D) requires that the judge refrain from financial and business dealings that would involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. The judge should either recuse or make full disclosure in all cases involving attorneys with which the judge has pending referral transactions.

Ethics Opinion Number 294 ( 2009 )

LOCAL ASSOCIATION JUDICIAL LIAISON PROGRAM

FACTS: A local trial lawyers association has established a judicial liaison program. Under the program, the association will have one of its members assigned to each civil court in the county to act as the association’s liaison for that court. The duties of the liaison include:

Introducing himself or herself to the judge and court coordinator and providing personal contact information;
Learning the court’s unique rules and procedures and acting as a resource for other association members;
Investigation of any complaint by the judge, court coordinator or court staff about any member of the association and investigation of any concern or issue that the association has about the court;
Endeavor to meet personally with the judge at least every 60 days;
Attend all association functions that the judge attends and personally invite the judge to the appropriate association functions; and
Update the Board of the association regarding the court.

The program specifically requires liaisons to act within the bounds of judicial ethics as prescribed by the Code of Judicial Conduct and to comply with all ethical guidelines regarding communications with the court.

QUESTION: May a judge participate in this program?

ANSWER: No. A judge’s participation in the program as described is not permitted by the Code of Judicial Conduct.

Canon 2 A. provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality (emphasis added) of the judiciary.” Canon 2 B. provides that a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.”

A judge’s participation in the program would join the judge and a faction of the bar in such a close relationship that the judge could not avoid the public appearance that Canon 2 A. and Canon 2 B. expressly prohibit.

Ethics Opinion Number 295 ( 2009 )

JUDGE’S SPOUSE AS CANDIDATE FOR JUDICIAL OFFICE

FACTS: A judge’s spouse is running for a judicial office.

QUESTIONS:

Can the judge appear in a family photo or image in the political advertising of the spouse and be identified in the photo caption by name, but not title, as the spouse of the candidate for office?
Can the judge be identified as the spouse of the candidate by name, but not title, in the biographical political advertising of the candidate?
If an inquiry is made to the candidate at a political event or interview as to who their spouse is, can the spouse be identified by name, but not title?
If an inquiry is made to the candidate at a political event or interview as to what their spouse's occupation is, can the occupation of the spouse who is a current judge be stated?

ANSWER:

The committee answers all of the questions in the affirmative.

DISCUSSION: In Opinion No. 180, the committee determined that a judge could not allow his name and title to be used in campaign materials and could not be introduced by name and title as the candidate’s spouse without violating Canon 2 B. That Canon provides in part that “A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others….”

Canon 5 (2) further provides in part that “A judge … shall not authorize the public use of his or her name endorsing another candidate for any public office….”

It is the committee’s opinion that the conduct that is the subject of this opinion is distinguishable from the conduct addressed in Opinion No. 180. By avoiding the use of the title of the judge, the judge avoids lending the prestige of office to his spouse and the conduct does not amount to an endorsement of the spouse.

This opinion is strictly limited to the questions stated. A judge who is the spouse of a candidate and who attends campaign events with the spouse should be ever vigilant to avoid placing himself in situations where his conduct could be construed as a public endorsement of his spouse.

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

in that county?
in surrounding counties?

ANSWER:

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) , 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(1) 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.

Judicial Ethics Opinions