Opinion 135

18 Baylor L. Rev. 250 (1966)

AVOIDANCE OF IMPROPRIETY - KINSHIP OR INFLUENCE
Since a judge is disqualified only where he is connected with one or more of the parties to a suit, it is not a violation of the Canons for a son of the judge to try a criminal case or a civil suit on a contingent fee basis, in his father's court. The committee is pre-empted from resolving questions involving judicial ethics, but feels that judges should avoid every situation which might give the impression that his decisions were influenced by favoritism or bias.

CONTINGENT FEES
It is improper for a judge to fix the attorney fees of his son, a lawyer in the case, since the attorney is a party for that purpose.

Canons 6, 12. A.B.A. Judicial Canons 4, 13.

The questions submitted are not exclusively questions of ethics inasmuch as they have been before many courts and there is not unanimity among the decisions of the various states.

1. Under Article 5, Sec. 11 of the Texas Constitution, a judge is disqualified only where he is connected with the parties to the suit; and the Supreme Court of Texas has held (Winston v. Masterson, 87 Tex. 768) that a judge is not disqualified from hearing a case because his brother, who is attorney for one of the parties, has a contingent interest in the result. The answer to the first question, therefore, is "No." The attorney is not a "party."
2. However, in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S. W. 2d 482, the Supreme Court held that an attorney is a "party" where the judge is called upon to fix his attorney fee. Therefore, the answer to the second inquiry is "Yes."
3. The decisions of the courts relating to criminal matters also appear to hold that a judge is not disqualified in a criminal case because his son is an attorney therein, so the categorical answer to the third inquiry is "No."

While the courts have pre-empted this committee from rendering an opinion on the ethical questions involved in these inquiries, the members of the committee are of the opinion that a judge should disqualify himself in cases where close relatives, with an unusual interest in the result, are attorneys in the case. Reference is made to Canon 4 of the Canons of Judicial Ethics of the American Bar Association, which provides in pertinent part that "a judge's official conduct should be free from impropriety and the appearance of impropriety; . . . " and also Canon 13 thereof, which provides that the judge "should not act in a controversy where a near relative is a party; he should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by the kinship, rank, position, or influence of any party or other person."

In Opinion No. 200, the American Bar Association committee expressed the opinion that a judge should studiously avoid every situation that might give rise to the impression that his decisions were influenced by favoritism.

Again following Opinion No. 35 of the Texas Committee on Interpretation of the Canons of Ethics, this committee feels that it is the responsibility of a judge not to sit in any case unless he is both free from bias and the appearance thereof.

Finally, the majority of the committee is of the very definite opinion that a judge should not try a case in which his son is an attorney and his fee contingent on the result of the litigation.