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December 17, 1992
Honorable Robin L. Mays
Chancellor
Pulaski County Courthouse
Little Rock, AR 72201
RE: Advisory Opinion #92-06
Dear Judge Mays,
You advise us that your sister is employed by the
Attorney General of this State; that she is a licensed attorney and is assigned to the
Litigation Division of that office; that you propose to sit in judgment on all cases filed
in your court that involve the Office of the Attorney General except those in which your
sister will appear of record as attorney, or assists in any way in the preparation or
trial of the matter. You seek our opinion as to whether you will violate the Canons of the
Code of Judicial Conduct, particularly Canon 3C, in the execution of this proposed
conduct.
The problem of ethical judicial disqualification to
adjudge a case has caused a division of though in this Committee. On the one hand it is
concluded that the ethical considerations are one and the same as the legal question
associated, and because the Commission had enjoined us from comment on legal question we
must refrain from opinion in the area. On the other hand there is the concept among us
that the ethical and legal questions as to disqualification to try certain cases are
separate and distinct, each requiring separate solutions, and neither, necessarily, having
weight as to the solution of the other. This does not mean, however, that in some
instances the solution to one may be the same as the solution to the other. The purpose of
this writing is to express the view of the separated philosophy.
Your decision to not sit in judgment in those cases
in which your sister is acting as the lawyer is specifically prohibited by Canon 3C(1)(d),
and is best explained by Professor Howard Brill (a member of this Committee) in his
treatise, "Arkansas-Professional and Judicial Ethics, 2d Ed., 1991" as follows:
"If members of the judge's immediate family
appear as counsel in or a party to the proceeding, the judge is disqualified from hearing
the case. Canon 3C(1)(d), Ark.-Const. Art. 7,20, ACA Secs, 16-13-214 & 312, 16-14-103,
16-15-111, 16-19-206 (and citing Westbrook vs State, 265 Ark. 735, 580 S.W. 2d 702;
Edmonson v Farris, 265 Ark. 505, 565 S.W. 2d 617, 1978; Adams v State, 269
Ark. 548, 601 S.W. 2d 881, 1980; Braswell v. Gehl, 263 Ark. 706, 567 S.W. 2d 113,
1978; Morton v Benton Pub. Co., 291 Ark. 620, 727 S.W. 2d 824, 1987)."
At page 331 of this treatis, Professor Brill states:
"Para. 10 of the official commentary provides:
'The fact that a lawyer in a proceeding is affiliated with a law firm with which a
lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under
appropriate circumstances, the fact that his impartiality might reasonably be questioned
under Canon 3C(1), or that the lawyer-relative is known by the judge to have an interest
in the law firm that could be substantially affected by the outcome of the proceeding
under 3C(1)(d)(iii) may require his disqualification.'"
Canon 3C(1) provides that:
"A judge should disqualify himself in a
proceeding in which his impartiality might reasonably be questioned . . .";
and lists four instances to demonstrate the
generality of that statement:
"(a) personal bias or prejudice to a party, or
knowledge of disputed facts; (b) was a lawyer in the case, or a lawyer with whom he
practiced law served during such association, or the judge or lawyer was a material
witness in it; (c) knows that he, his spouse, minor child in the house, has a financial
interest in the suit, or other interest that could be substantially affected by the
outcome; and (d) he, spouse, or one in the 3rd degree of relationship to either, or the
spouse is a party, officer, director or trustee of a party, or acts as a lawyer in the
case, or the judge knows an interest could be substantially affected by the outcome, or is
likely to be a material witness."
The treatise "Judicial Conduct and
Ethics", by Shaman, Lubet and Alfini, on page 121, Section 5.12 speaks directly to
your question:
"Worthy of note are the court decisions
regarding government attorneys who are related to a judge, but who are not counsel of
record in a government case before the judge. One court held that disqualification was not
required . . . because prosecutors do not have financial interests in the outcome of their
cases, interests in good will with which to attract clients, or pecuniary interests in
reputation. State v Logan, 689 P 2d 778, Kan., 1984. The court also noted that a
reasonable person would not consider the judge to favor the prosecution merely because the
judge's relative worked as a prosecutor. Another court, however, required disqualification
of a judge because his spouse worked in the prosecutor's office, even though the spouse
had been careful not to involve herself with the case before the judge. Smith v Beckman,
683 P 2d 1214, Colo., App., 1984. The court based its reasoning on the public's perception
of the close nature of marital relationships; it held that the appearance of impropriety
was established "even though no other facts called into question the judge's
impartiality.'"
Because of the division of judicial thought on this
problem, the ethical solution perforce must agree with one of the two views. The reasoning
expressed in State v Logan, supra, is the more appealing as we do not conclude that
this sister relationship, standing alone, is sufficient to cause a reasonable person to
consider you biased in favor of the Attorney General case.
At very best, your problem is on the delicate and
factually narrow side of the spectrum, and its result could change in ethical solution
should other facts be added to those upon which this opinion is founded. Consequently, it
may be wise course always to announce on the record to the parties and attorneys that his
relationship exists, and invite them to offer any additional facts, if any that could
possibly result in a violation of this Canon.
Yours very truly,
James A. Badami
on behalf of Judicial Ethics Advisory Committee
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