Can a lawyer who serves as a justice of the peace or police judge be a law partner, and can the partner file cases in that judge's court?

Plain-English summary

This opinion withdrew the committee's earlier Advisory Opinion 162, which had been adopted by the Central Committee and published in the Journal. After publication, the committee's attention was called to a statute it had completely overlooked and that it now treated as controlling of the question.

The underlying facts were that A and B were partners in the general practice of law, and A held two offices: justice of the peace and police judge. Opinion 162 had considered two questions: whether A and B could remain partners in all courts other than the justice of the peace court and police court, and whether B could file his own separate cases (not partnership cases) in A's justice of the peace court.

The overlooked statute was 21 Okla. Stat. Ann. §§ 560 and 561. The first section provided that any justice of the peace who offices with any attorney at law would be punished by a fine or imprisonment in the county jail; the next section provided that if he offices with another lawyer he forfeits his office. The committee reasoned that because an attorney at law cannot office with a justice of the peace, he certainly cannot be a partner, so both questions had to be answered in the negative. Opinion 162 was withdrawn.

Currency note

This opinion was issued in 1953, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions, and before the modern Code of Judicial Conduct. The statutes the opinion cited belong to that earlier framework. Subsequent rule and statutory amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Why did the committee withdraw Opinion 162?

A: After Opinion 162 was published, the committee's attention was called to a statute it had completely overlooked, 21 Okla. Stat. Ann. §§ 560 and 561, which it concluded was controlling of the question.

Q: Can a justice of the peace be a law partner under this opinion?

A: No. The committee reasoned that because the statute bars a justice of the peace from officing with any attorney at law, he certainly cannot be a law partner.

Q: What happened to the two questions Opinion 162 had answered?

A: The committee concluded both questions, about remaining partners in other courts and about the partner filing his own cases in the justice's court, must be answered in the negative.

Background and rules framework

The opinion turned on a statute rather than a Canon: 21 Okla. Stat. Ann. §§ 560 and 561, barring a justice of the peace from officing with an attorney at law on pain of fine, imprisonment, or forfeiture of office. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Statutes:

• 21 Okla. Stat. Ann. § 560 (a justice of the peace who offices with an attorney at law is punishable by fine or imprisonment)
• 21 Okla. Stat. Ann. § 561 (a justice of the peace who offices with another lawyer forfeits his office)

Other opinions cited:

• Oklahoma Bar Association Advisory Opinion 162 (withdrawn by this opinion)

See also

• Okla. Bar Ethics Op. 172: Municipal judge practicing law and the firm name
• Okla. Bar Ethics Op. 168: A new judge completing pending cases
• Okla. Bar Ethics Op. 166: County judge preparing income tax returns

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-175/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted December 9, 1953

The Ethics Committee submitted Advisory Opinion No. 162, which was adopted by the Central Committee and published in the Journal. Since publication of the opinion, our attention has been called to the fact that we completely overlooked a Statute which is controlling of the question, therefore, Opinion No. 162 must be withdrawn.

The facts in that case were as follows:

A and B were partners in the general practice of law. A held two offices, one as a Justice of Peace, and the other as Police Judge. Two questions were considered:

1. Can A and B remain partners in all courts other than the justice of the peace court and police court, and

2. Can B file cases in A’s Justice of the Peace Court when such cases are B’s separate cases and not those of the partnership.

The Statute which was overlooked is 21 Okl. St. Ann. ss 560 and 561.

The first section reads in part:

“Any justice of the peace who shall office with any attorney at law … shall be punished by a fine … or imprisonment in the county jail ….”

The next Section provides that if he offices with another lawyer he “forfeits his office”.

By virtue of the above Statute, since an attorney at law cannot office with a justice of the peace, he certainly cannot be a partner, and therefore both the above questions must be answered in the negative.