Can a county judge, in private practice, defend a company in a wrongful-death suit he had ordered the guardian to file as probate judge?

Plain-English summary

A man was killed in a collision with a motor transportation company's truck. On the widow's application, the county judge, sitting as probate judge, appointed her guardian of their two minor children and directed her to file suit against the company for the children's damages. After suit was filed, the same county judge, acting as a practicing attorney, accepted employment to defend the transportation company. The inquiry asked whether defending the company was unethical.

All members agreed the judge would not be legally barred from taking the defense, citing Article 319 of the Texas Statutes and Texas Ethics Opinion 13, though one member said flatly that "a county judge has no business practicing law" (8-0). All members nevertheless agreed he should not accept the employment, because doing so would be calculated to lessen public confidence in the integrity of the courts (8-0).

All members except one further concluded the conduct is unethical and violates Texas Canon 6 as a representation of conflicting interests (7-1). They reasoned that the judge could not reconcile his duty to see the wards receive every benefit the law allows with a duty to the transportation company to make an all-out effort to defeat the guardian's recovery. The Committee cited Texas Ethics Opinions 48 and 143 and American Bar Association Judicial Canons 24 and 31.

Currency note

This opinion was issued in 1957, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Was the judge legally barred from defending the company?

A: No. The Committee agreed Texas law did not bar him, citing Article 319 and Opinion 13, but said the conduct was still improper (8-0 on the legal point).

Q: Why did the Committee say he should not take the defense?

A: Because it would lessen public confidence in the integrity of the courts, and a majority found it a conflict of interest under Canon 6: he could not both protect the wards as probate judge and try to defeat their recovery as defense counsel (7-1).

Q: Which authorities did the Committee rely on?

A: Texas Canon 6, Texas Ethics Opinions 48 and 143, and ABA Judicial Canons 24 and 31.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) against the backdrop of a county judge who also maintained a private law practice, and references ABA Judicial Canons 24 and 31. The modern analog for the conflict analysis is ABA Model Rule 1.7 (conflict of interest, current clients); the judicial-role concerns now fall under the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients), as the modern analog
• Texas Canon 6 (former canon on conflicting interests)
• ABA Judicial Canons 24 and 31

Statutes:

• Article 319, Texas Statutes (cited for the proposition that the judge was not legally barred)

Other opinions cited:

• Texas Ethics Opinions 13, 48, and 143

See also

• TX Ethics Op. 173: County Judge Practicing Law
• TX Ethics Op. 195: County Judge and County Attorney Partners

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-151/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_151.pdf

Original opinion text

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

QUESTION PRESENTED

Upon the application of the widow of a man who was killed in a collision between the vehicle in which he was riding and the truck of a motor transportation company, she was appointed guardian of the persons and estates of her two minor children by the county judge, as probate judge, and directed to file suit against the transportation company for damages accruing to the children as a result of the death of their father and her husband. After such suit was filed, the county judge, in his capacity as a practicing attorney accepted employment to defend the transportation company. Is it unethical for such attorney to defend such transportation company in that suit since he, as probate judge, had appointed deceased's widow guardian of their two minor children and directed her to file such suit?

18 Baylor L. Rev. 259 (1966)

CONFLICTS OF INTEREST - PRIVATE PRACTICE BY JUDGES
Although there may be no legal sanction, it would be improper for a county judge, who appointed as guardian the widow of a man killed in a collision, to represent the defendant in a suit brought by the widow in her name and as guardian, for her husband's wrongful death.

Canon 6. A.B.A. Judicial Canons 24, 31.

All members of the committee are of the opinion that the county judge would not be legally barred from accepting employment to defend said transportation company under the facts stated, citing Article 319, Texas Statutes, and Texas Ethics Committee Opinion No. 13, although one member says categorically that "a county judge has no business practicing law." (8-0)

On the other hand, all members of the committee are definitely of the opinion that under such circumstances the county judge should not accept such employment and that for him to do so would be calculated to lessen public confidence in the integrity of the courts. (8-0)

In addition, all members except one are of the opinion that such conduct is unethical and violates Texas Canon of Ethics 6 in being a representation of conflicting interests. They feel that a county judge could not reconcile his duty on the one hand to see that the wards receive every benefit the law allows with a duty on the other hand to the transportation company to exert an all- out effort to defeat recovery of the guardian in the damage suit. Opinions 48 and 143 of the Texas Ethics Committee and Judicial Canons 24 and 31 of the American Bar Association are cited in support of this view. (7-1)

Tex. Comm. On Professional Ethics, Op. 151 (1957)