ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 10- 2011
RE: Propriety of a circuit court judge presiding over matters in which the judge’s law clerk’s uncle appears as the solicitor.
A circuit court judge has hired a law clerk for the upcoming year. The clerk is the nephew of the senior prosecuting solicitor in the judge’s judicial circuit. The judge inquires as to whether the judge can preside over trials in which the solicitor/uncle appears; whether the judge can accept pleas in cases in which the solicitor/uncle appears; and for any other guidance the Committee can provide.
A circuit court judge need not automatically disqualify himself or herself from a proceeding in which the solicitor appears where the solicitor’s nephew is the judge’s law clerk; the judge can prevent the law clerk from working on this cases, which eliminates any potential conflict, or the judge can allow the law clerk to participate and disclose for the record the law clerk’s relationship with the solicitor and disqualify himself or herself if any party objects.
Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned, including where “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person” is an attorney in the proceeding or is a material witness in the proceeding.” In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.
In Opinion 6-2004, this Committee considered that Canon in determining the propriety of a Master-In-Equity presiding over matters in which a party was represented by a law firm where the Master’s son was a law clerk or a practicing attorney, even though the son would not actually appear before the Master. We found that “having a son working for a law firm and then having that law firm appear in his court may create the appearance of impropriety even though the situation does not fall into the specific categories listed in Cannon 3E. However, this appearance of impropriety does not exist for uncontested and default matters. Therefore, the possibility of disqualification is only required in contested cases.” Op. No. 6-2004. However, in that Opinion, we also found that disqualification was not automatically required in all contested cases and found that the Master could utilize the remittal procedure to avoid the appearance of impropriety.
The Committee finds that the logic of that opinion should apply here; however, the judge has several options. The judge could prevent the law clerk from participating in or working on any proceedings in which the solicitor/uncle appears, which would eliminate any potential conflict. Furthermore, because it is only the uncle of the judge’s law clerk who will appear as an attorney in a proceeding before the judge and not “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person,”
Canon 3.E.(1)(d) does not require disqualification even if the judge’s law clerk is not prevented from working on the case. However, the judge must still avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary as required by Canons 1 and 2. Thus, in matters such as contested motions or trials in which the solicitor/uncle appears (and assuming the judge has not required his law clerk to abstain from involvement), the judge must full disclose the relationship of the judge’s clerk and the solicitor. Because pleas are agreements reached between the solicitor and the defense, and are therefore “uncontested,” neither disqualification nor disclosure is required (and the judge’s law clerk can participate).
In conclusion, the possibility of disqualification only arises in contested cases, but the judge may either require his law clerk to abstain from involvement, thereby eliminating the need for disqualification, or remit disqualification with full disclosure and consent of the parties.
August 9, 2011.