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A LAWYER SHOULD NOT LEASE FROM THE COUNTY JUDGE BEFORE WHOM HE ACTIVELY
PRACTICES A BUILDING OWNED BY THE JUDGE AND WHICH THE JUDGE FORMERLY USED
AS A LAW OFFICE IN AN ADJOINING COUNTY, FOR THE PURPOSE OF ESTABLISHMENT
BY THE LAWYER OF A BRANCH OFFICE FOR THE PRACTICE OF LAW.
CODE PROVISIONS
INTERPRETED:
CANON 9. A
Lawyer Should Avoid Even the Appearance of Professional Impropriety.
EC 9-2 ".
. . On occasion, ethical conduct of a lawyer may appear to laymen to be
unethical . . . . When explicit ethical guidance does not exist, a lawyer
should determine his conduct by acting in a manner that promotes public
confidence in the integrity and efficiency of the legal system and the
legal profession."
EC 9-6 "Every
lawyer owes a solemn duty . . . to strive to avoid not only professional
impropriety but also the appearance of impropriety."
JUDICIAL ETHICS,
CANONS:
CANON 26.
". . . . It is desirable that he should,
so far as reasonably possible, refrain from all relations which would
normally tend to arouse the suspicion that such relations warp or bias
his judgment, or prevent his impartial attitude of mind in the administration
of his judicial duties."
FACTUAL SITUATION
A law firm
desires to establish a branch office in an adjoining county for regular
service to a local client and for such additional business as may develop.
The County Judge in the home county before whom the law firm practices
regularly formerly resided in the adjacent county and owns the building
which he formerly used for the practice of law. The building has been
temporarily occupied by a business firm but is now available for use as
a law office.
QUESTION
Is it ethically
proper for the law firm to lease the building above described from the
County Judge?
DISCUSSION
The new Code
of Professional Responsibility in the area under consideration does not
appear to greatly differ from the requirements of the earlier Canons.
Formal Opinion No. 89, applying the latter, held that a lawyer may not
enter into a contract with a judge before whom he practices, which in
effect constitutes a loan.
"On the
basis of the opinion of the real estate men, and assuming that their valuation
is correct, the second mortgage is simply a loan from a lawyer to the
judge and is contrary to Judicial Canons Nos. 24 and 32 relating to a
judge accepting favors from lawyers practicing before him. It is also
subject to criticism under the Judicial Canon 4 requiring careful
conduct on the part of judges. The lawyer making the loan to the judge
also would seem to be violating Canons 3 and 20 of the Professional Ethics.
The lawyer is subject to criticism for making the loan and the judge for
accepting it."
In this connection
the new Code in Note 5 quotes a decision of our Supreme Court as follows:
"As said
in Opinion 39, of the Committee on Professional Ethics and Grievances
of the American Bar Association, page 134: 'An attorney should not only
avoid impropriety but should avoid the appearance of impropriety.' State
ex rel. Nebraska State Bar Ass'n v. Richards, 165 Neb. 80, 93, 84 N.W.2d
136, 145 (1957)."
The Supreme
Court in the case just cited continues in its opinion as follows:
"See,
also, Opinion 77, of the Committee on Professional Ethics and Grievances
of the American Bar Association, page 182. And, as stated in Opinion 34,
of the Committee on Professional Ethics and Grievances of the American
Bar Association, page 118: ' . . . ploy to be and remain above all suspicion,
even at personal financial sacrifice."
While this
committee may have no authority or duty to administer the Canons of Judicial
Ethics, their consideration may be pertinent as affecting the duties and
obligations of a lawyer to his County Judge. Canon 4 of the Judicial Ethics
states that a judge's conduct "should be free from impropriety and
the appearance of impropriety." Canon 24 provides that a judge should
not "incur obligations, pecuniary or otherwise, which will in any
way interfere or appear to interfere" with his official function.
Canon 26 states
as to judges:
"It is
desirable that he should, so far as reasonably possible, refrain from
all relations which would normally tend to arouse the suspicion that such
relations warp or bias his judgment, or prevent his impartial attitude
of mind in the administration of his judicial duties."
There is nothing
whatever on the face of the proposed lease that suggests anything improper
in any way on the part of the judge or the law firm. Furthermore, it cannot
be said that the proposed lease directly and clearly violates any provision
of the Code of Professional Ethics. There does, however, appear to exist
in the proposed
While the
Code does not absolutely prohibit all business transactions between a
lawyer and a judge before whom he practices, it would seem that the letter
and spirit of the Code as well as the Judicial Code, does not lack with
favor on such business transactions, at least where they relate to or
are connected in any way with the practice of law.
CONCLUSION
The Committee
believes that the law firm should not enter into a lease with the County
Judge for use of a building owned by him for the practice of law as described
in this opinion.
71-4
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