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June 5, 1992

 

Honorable John M. Graves
Circuit Judge
Ouachita County Courthouse
Camden, AR 71701

RE: Advisory Opinion No. 92-03

Majority Opinion


Dear Judge Graves,

Your letter dated May 13, 1992 seeks our opinion concerning the following: you are the named defendant in a case filed in the 13th District, and have employed a lawyer living and practicing there to defend your interests; this lawyer practices with four other lawyers living and practicing in the district as a partnership, a professional corporation, or other form of association of mutual benefit; you propose to disqualify in other litigation in which your hired lawyer participates, but propose to sit in judgment on cases in which the other four lawyers participate if the waiver process detailed in Canon 3D is accomplished. You ask if this conduct will violate any of the seven canons of the Arkansas Code of Judicial Conduct (Code), specifically numbers 2 and 3C(1).

These questions delve into a jurisdictional issue which has caused this Committee to divide itself in a prior opinion on a recusal question, which I try to explain along with the answers to your questions, all for and on behalf of this Committee.

The Judicial Discipline and Disability Commission prescribed our duties and jurisdictional limitations in the form of Procedural Rules, the first of which contains the following language:

" . . . to give advisory opinions to a judicial officer seeking opinions concerning the compliance of an intended future course of conduct with the Code . . . ."

This mandate was followed by language in Rule 4 as follows:

 

" . . . Advisory opinions shall address only whether an intended future course of conduct violates the Code, and shall provide an interpretation of this Code with regard to the factual situation presented. The opinion shall not address ISSUES OF LAW (emph. suppl.) nor shall it address the ethical propriety of past or present conduct . . . ."

In January of this year we struggled with a similar disqualification problem of another trial judge and after much research, argument and soul-searching, reached the following majority conclusion:

 

"The matter of future disqualification is an issue of law and falls outside our guidelines. Disqualification issues belong in an adversary setting, not in an advisory committee. Sua Sponte actions by the trial court, motions by litigants and appellate review are the appropriate ways to raise and to resolve questions of disqualifications."

As an experienced jurist, you will have little difficulty in recognizing the logic of this literal interpretation of the language of Rule 4.

 

However, in the light of your request we have re-thought this difficult question and conclude that we should not hold to a strict legal interpretation of that language; and that the ethical problem that runs concurrent with the legal problem should be answered. In doing so, however, you are advised that the legal problem of your disqualification is not hereby solved, and that this ethical opinion should not be considered evidence that may bear upon the resolution of the legal issues that may arise. The two problems are separate and distinct. This Committee has not the standing of a court, and its concern has nothing to do with the legal issues that concern the courts.

 

There are few relationships that are thought to be closer and more compelling than that of lawyer-client. A judge is thought to have particular insight as to who appears before him, and the probability is that this will spill over to the other four lawyers; i.e., if they did not possess similar abilities and skills the leading lawyer of the firm would not be associated with them. It may be that you are fully capable of separating this group, one from the other, but this problem extends to the appearance of impropriety, and that relates to an objective test: whether a disinterested observer, fully informed of the facts, would entertain significant doubts that justice would be done if the judge participates, or fails to do so, in the litigation.

We conclude that Canon 3C(1) requires that you recuse from all cases in which any one of these five attorneys participate at least for so long as the litigation involving you pends, and for a reasonable time thereafter. This canon is headed "Disqualification" and sets out eleven relationships and interests that require the judge to recuse. The situation which you detail is not specifically covered by the examples given, but it does provide that disqualification circumstances are not limited to the examples given: it says "including but not limited to." As to how long after your litigation terminates should you disqualify is a question that only time can answer; and undoubtedly you will be in the better position to judge this period. As I remember, almost 100% of the lawyers in Arkansas thought that Judge G.R. Smith recused from Rose Law Firm cases for much too long a period.

The scope of Canon 3D "Remittal of Disqualification" is quite narrow, being limited to 3C(1)(c) or (d) situations; either having a substantial interest affected by the outcome, or the judge or his family, etc., is a party or attorney in the proceeding. There is no language that permits broadening its confines and it appears to be a text book example of the application of the doctrine of ejusdem generis. For your information, Canon 3F of the new code now being considered by the Arkansas Supreme Court significantly broadens remittal of disqualification and it, in effect, would have covered this situation. Fortunately, the 13th is a multi-division district and for this reason your awkward problem should cause little delay or other difficulty in the due course of disposing of litigation. The clerk's offices in the various counties in your district can easily adjust to the assignment of cases so as to level them out to the several divisions of the court. We do not feel that your disqualification can be waived.

I have been asked to advise you that Professor Brill does not agree with the result of this opinion.

Yours very truly,

Bruce T. Bullion

For the Majority

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