A battle between County Court-at-Law No. 3 Judge Christopher Dupuy and part-time 306th District Court Associate Family Law Judge Suzanne Schwab-Radcliffe over whether she also can practice as a family lawyer in his court is bringing attention to one of the most unusual judicial arrangements in Texas.
The background to the dispute, according to a Dec. 21, 2012, decision by Houston’s 1st Court of Appeals in In Re Cecelia Marie Ryan and Suzanne Schwab-Radcliffe, is as follows.
Cecelia Ryan retained attorney Suzanne Schwab-Radcliffe to represent her in a divorce action filed in Galveston County Court-at-Law No. 3, the court over which Dupuy presides. Schwab-Radcliffe also is employed as a part-time associate family law judge in the 306th District Court in Galveston, the opinion states.
In Galveston County, the 306th District Court hears half of the county’s family law cases, while the remaining half are distributed among its three county court-at-law judges. This arrangement was established in 2001, when an order signed by the then-presiding judges of the 306th District Court and the county courts-at-law provided that cases in which Schwab-Radcliff was attorney of record “shall automatically be transferred to one of the three county courts at law on a rotating basis,” according to the opinion.
Without a request from a party, notice or hearing, Dupuy signed an Oct. 3, 2012, order disqualifying Schwab-Radcliffe “as attorney of record in this matter.” In that order, Dupuy indicated that he found there “to be a clear conflict of interest between [Schwab-Radcliffe's] role as an advocate for her client, and [her] judicial obligations and responsibilities” as an associate judge. Dupuy continued that he found that “the Associate Judge must be disqualified from this matter and should be disqualified from representing family law clients in this County.” As authority for the disqualification order, Dupuy cited the Texas Code of Judicial Conduct, Canons 1-4, according to the opinion.
That same day, Radcliffe-Schwab filed a motion to recuse Dupuy on Ryan’s behalf. The motion asserted that Dupuy’s impartiality “might be reasonably questioned” because an email sent by Dupuy to the Galveston County district clerk and the Galveston County attorney “shows an inherent bias against [Radcliffe-Schwab],” according to the opinion.
On Oct. 10, 2012, Dupuy issued an order holding Schwab-Radcliffe in contempt for filing “pleadings” on behalf of Ryan after the Oct. 3, 2012 disqualification was signed, according to the opinion.
Then, on Oct. 15, 2012, Dupuy signed a “Standing Order of Disqualification,” which notes that “allowing the County’s Associate Family Law judge to also represent family law clients in the Court would cast doubt on an impartial judiciary” and that his decision was “based on a laundry-list of factual examples that would convince any reasonable person that the Associate Family Law Judge’s representation of family law clients in this courthouse would run afoul of the permissible Canons,” according to the opinion.
Schwab-Radcliffe and Ryan filed a petition for writ of mandamus in the 1st Court, arguingthat Dupuy abused his discretion by disqualifying Schwab-Radcliffe from representing Ryan, in his blanket disqualification order and by signing the order of contempt.
In its opinion, the 1st Court concluded that Dupuy abused his discretion by disqualifying Schwab-Radcliffe without providing notice or a hearing.
“Thus, we hold that the trial court abused its discretion when it disqualified Schwab-Radcliff from representing Ryan in the underlying divorce action and from representing clients in family law cases in the County Court at Law No. 3 while she servesas an associate judge in the district court,” wrote Justice Laura Carter Higley in an opinion joined by Chief Justice Sherry Radack and Justice Michael Massengale.
A footnote in the opinion notes that, “Our holding should not be interpreted to suggest that Schwab-Radcliffe should or should not be disqualified, only that the trial court has no discretion to disqualify Schwab-Radcliffe without notice and a proper hearing.”
The opinion also found that Dupuy abused his discretion for finding Schwab-Radcliffe in contempt and directed him to vacate the disqualification and contempt orders.
On Jan. 18, Dupuy held a hearing in In the Matter of the Marriage of Peter James Ryan and Cecelia Marie Ryan to determine if Schwab-Radcliffe should be disqualified from representing family law clients, including Cecelia Ryan, while also employed as associate family law judge in Galveston County. Dupuy recessed the hearing after none of the parties showed up.
In an interview, Dupuy says he became concerned about Schwab-Radcliffe practicing in his court after he was elected and took the bench in 2010.
“My understanding is that it doesn’t happen in any other county. But it was a policy that was put into effect that allowed it to happen,” Dupuy says of the practice of letting a part-time family law judge practice family law in a county where that judgesits.
“And in the canons and the opinions interpreting the canons, there is not an opinion directly on point,” Dupuy says. “It seems to me to be a clear violation. It is very difficult for a party to think they are going to get a fair trial if the opposing counsel is an associate judge for the county.”
Texas Code of Judicial Conduct Canon 4G states that full-time judges in Texas “shall not” practice law. Canon 6D exempts part-time judges from that requirement. However, Canon 6D(2) states that part-time judges “should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves . . .”
Schwab-Radcliffe, of Houston’s The Law Offices of Suzanne Schwab Radcliffe, could not be reached for comment. Janis Yarbrough, judge of the 306th District Court, did not return a telephone call for comment.
Marcia Zimmerman, a Webster lawyer who has practiced family law in Galveston County for nearly 30 years, says she’s troubled by the 2001 order that allows Schwab-Radcliffe to practice family law in the county courts-at-law.
“It allows for forum shopping because [Schwab-Radcliffe is] only appointed in cases not involving the 306th” says Zimmerman of The Zimmerman Law Firm. “If you don’t want your case to be in the 306th, you’re going to hire Judge Radcliffe. . . .”
Greg Hughes, a Friendswood solo who is president of the Galveston County Family Law Association, says he does not have a problem with the 2001 order — an agreement he believes the judges made out of necessity.
“The bottom line is: The county has asked someone to help [and filled that position] with someone who is good at it. And she’s allowed to practice. Who is going to take the job if they’re not allowed to practice law?” Hughes says. “You need to make it a full-time job, or you need to let them be able to work.”
However, making Schwab-Radcliffe’s judicial position full time is not a practical solution, says Barbara Roberts, judge of Galveston County Court-at-Law No. 2, because the part-time judge handles a limited docket of cases filed by the Texas Department of Family and Protective Services involving children.
“We don’t need that position to be full time,” says Roberts, who acknowledges that the 2001 order allowing Schwab-Radcliffe to practice family law brings up “very serious issues” that the county’s judges should address. “One solution may be to hire someone who doesn’t practice in front of Galveston courts at all. Maybe a retired judge would want to do something like that?”
John Grady, judge of Galveston County Court-at-Law No. 1, declines comment on the issue but points out that, when Galveston County hired a new part-time juvenile judge a year ago, “part of her contract is that she shall not practice juvenile or family law” in the county.
Marilea Lewis, a partner in Dallas’ Godwin Lewis who has served as a family law state district judge and a family law associate judge in Dallas County, says allowing part-time associate judges to practice law is “somewhat a grey area” of judicial ethics.
“It’s one of those unfortunate unresolved issues that needs to be addressed by the Legislature,” she says.