Can a justice of the peace who is also a lawyer practice criminal law in higher courts or in another county?

Plain-English summary

The inquiry asked whether a justice of the peace who is a lawyer may practice criminal law in the superior courts or in any county outside his own.

The committee answered yes. A majority qualified that answer: the practice is permissible only where the matter has not been before him in any manner in his capacity as justice of the peace. The same majority added that it would be highly preferable for the justice of the peace to refrain from such practice even though no statute or Canon expressly prohibits it. The committee placed the question under Canon 6. The vote was 6-1.

Currency note

This opinion was issued in 1948, 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; conflicts of this kind are now addressed by ABA Model Rule 1.7, and the practice of law by a part-time judge by Rule 3.10 of the Model Code of Judicial Conduct. Treat this page as historical context, not current guidance.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 who serves as a justice of the peace take criminal cases in other courts?

A: Under this opinion, yes, but only where the matter had not been before him in any way in his capacity as justice of the peace.

Q: Did the committee say the practice was fully proper?

A: Not without reservation. A majority said it would be highly preferable for the justice of the peace to refrain from the practice, even though no statute or Canon expressly prohibited it.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests), applied to a lawyer who also holds the judicial office of justice of the peace and wishes to maintain a criminal practice elsewhere. The modern analogs are ABA Model Rule 1.7 (concurrent conflicts of interest) and, on the judicial side, Rule 3.10 of the Model Code of Judicial Conduct, which restricts the practice of law by a sitting judge.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest), as the modern analog
• Model Code of Judicial Conduct Rule 3.10 (practice of law by a judge), as the modern analog
• Texas Canon 6

See also

• TX Ethics Op. 45: A County Judge Representing Clients in Justice Court
• TX Ethics Op. 35: A Judge Whose Son Appears as Counsel

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-16/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_16.pdf

Original opinion text

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

QUESTION PRESENTED

Can a justice of the peace, who is a lawyer, practice criminal law in superior courts, or in any county outside his own county?

18 Baylor L. Rev. 200 (1966)

JUDGE ACTING AS A LAWYER - EMPLOYMENT
Although a justice of the peace, who is a lawyer, may practice criminal law in superior courts, or in any county outside his own, where the matter has not been before him in his capacity of J.P., it would be preferable for him to refrain from that practice even though no statute or Canon expressly prohibits it.

Canon 6.

The committee is of the opinion that the foregoing question should be answered "Yes". A majority of the committee members are of the opinion that such question should be answered "Yes" only where the matter has not been before him in any manner in his capacity of justice of the peace, and are of the further opinion that it would be highly preferable for said justice of the peace to refrain from such practice even though there is no statute or Canon which expressly prohibits him from doing so. (6-1)

Tex. Comm. On Professional Ethics, Op. 16 (1948)