A part-time Galveston County family law associate judge resigned from the bench on Feb. 8. The move came after an advisory judicial ethics opinion indicated that part-time judges can’t represent family law clients in district courts in the county where they sit.
Suzanne Schwab Radcliffe says she resigned from her position as a part-time judge for the 306th District Court after the Judicial Ethics Committee of the Judicial Section of the State Bar of Texas issued its opinion.
Opinion No. 296, the committee’s first and only of 2013, doesn’t state who asked the question seeking the opinion or name Radcliffe.
Judge Christopher Dupuy of Galveston County Court-at-Law No. 3 says he sent the question to the committee back in October.
Last year, Dupuy disqualified Schwab Radcliffe from practicing in his court. Schwab Radcliffe challenged the recusal order on a client’s behalf, and the 14th Court of Appeals found that Dupuy had abused his discretion by disqualifying her without notice or a hearing. [See "Family Feud: Order Allowing Associate Judge to Practice Law at Issue," Texas Lawyer, Jan. 28, 2013, page 1.]
Dupuy says he feels "vindicated" by the ethics opinion.
"It didn’t say we did anything wrong," says Schwab Radcliffe, of Houston’s The Law Offices of Suzanne Schwab Radcliffe, of the opinion. "But we said, if there was an opinion saying it couldn’t be done, we’d stop doing it," Schwab Radcliffe says of her reasons for resigning from the bench.
Specifically, the committee was asked if an attorney appointed as a part-time family law associate judge can continue to represent family law clients in: 1. district courts of that county; and 2. in courts in surrounding counties. The answers from the Judicial Ethics Committee of the Judicial Section of the State Bar of Texas are "no" to first question and a "qualified no" to the second question.
Texas Code of Judicial Conduct Canon 4G states that fulltime 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."
In Opinion No. 296, the committee found that the practice of allowing a part-time family law associate judge to represent family clients in the county and surrounding counties was inconsistent with those canons.
"The roles of advocate and impartial judge are in opposition to each other, and a judge may not use the authority of judicial position to advance one’s private interests as an advocate," Opinion No. 296 states. "A built-in dilemma exists in our justice system when a part-time judge also maintains a law practice. Under the Texas Disciplinary Rules of Professional Responsibility a lawyer has an obligation to zealously represent his client within the bounds of the law. When that lawyer also serves as a judge, however, his [or her] duty as a judge is to be impartial and to promote public confidence in the integrity and impartiality of the judiciary. The Committee stresses to all part-time judges to keep this conflict in mind when choosing to accept representation."
Senior District Judge Paul Davis has chaired the Judicial Ethics Committee for the past two years. Speaking in general about the process, he stresses that the judicial ethics opinions are "advisory only. These are not binding on anybody."
Opinion No. 296 was the first opinion the committee has released in four years.
Davis notes that the nine-member committee is comprised of Texas jurists and serves to answer ethics questions of their fellow judges. And over the past two years, they’ve only answered about 10 questions — most of which were answered informally, Davis says.
"Most of the questions we get have already been answered. And so somebody says ‘Can I fire my bailiff?’ And so we’ll say, ‘Look at Opinion No. 27.’ " Only judges can ask questions of the committee; it doesn’t answer questions from the public, Davis says.