Can a lawyer act as advocate in a child custody case when his law partner earlier presided over the matter as a judge?

Plain-English summary

The inquiry asked whether a lawyer could accept employment as an advocate in a child custody case when his partner had previously acted in a judicial capacity in the matter.

The Committee concluded that the described situation would constitute a violation of Canon 33 (8-2). The headnote frames the issue as a partner's retirement from a judicial position followed by the firm taking an advocate's position in the same matter.

Currency note

This opinion was issued in 1954, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The disqualification of a former judge and its imputation to partners are now governed by ABA Model Rules 1.12 and 1.10 and the Texas Code of Judicial Conduct. Subsequent rule 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 Treat this page as historical context, not current guidance.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: Could a lawyer be the advocate in a custody case his partner had handled as a judge?

A: No. The Committee held that the described situation would violate Canon 33 (8-2).

Q: Did the partner's prior judicial role, rather than the lawyer's own, drive the result?

A: Yes. The conflict arose from the partner's previous service in a judicial capacity in the same matter.

Background and rules framework

The opinion interprets former Texas Canon 33, applied where one partner had previously acted as a judge in the matter the firm now wished to litigate. The modern analogs are ABA Model Rule 1.12 (former judge or other adjudicative officer) and Model Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral), as the modern analog
• MR 1.10 (imputation of conflicts of interest)
• Texas Canon 33

See also

• TX Ethics Op. 116: City Judge in a Law Firm
• TX Ethics Op. 125: Justice of the Peace as Advocate
• TX Ethics Op. 108: City Judge Appearing Before the City Council

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-100/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_100.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for an attorney to accept employment as an advocate in a child custody case when his partner has previously acted in a judicial capacity in the matter?

18 Baylor L. Rev. 236 (1966)

RETIREMENT FROM JUDICIAL POSITION BY PARTNER - ADVOCATE'S POSITION
An attorney should not become an advocate in a child custody case when his partner has previously acted in a judicial capacity in the matter.

Canon 33.

The committee is of the opinion that the situation described in the above question would constitute a violation of Canon 33. (8-2)

Tex. Comm. On Professional Ethics, Op. 100 (1954)