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April 7, 1994



The Honorable Knox Kinney, Esq.
City Attorney of Forrest City
P. O. Box 1655
Forrest City, AR 72335

RE: Advisory Opinion No. 94-05 

Dear Mr. Kinney:

On February 16, 1994 we issued Advisory Opinion No. 94-02 which stated in part as follows:

ACanon 3 E(1) of the new Arkansas Code of Judicial Conduct provides, AA judge

shall disqualify himself or herself in a proceeding in which the judge=s impartiality might reasonably be questioned . . .@ Judicial ethics advisory opinions on this subject vary, however we find the weight of the opinions and the preferable viewto be that when an attorney is opposing a presiding judge for reelection, the judgeshould disqualify himself or herself in all cases in which the attorney appears before that judge. This is better for the Judge, the opponent and the judicial system.@

In your request for an advisory opinion you asked that we interpret Canon 3 E(1) to the effect that in a situation where an attorney (in this case the Deputy City Attorney) is an announced candidate for the position of the sitting judge need not recuse unless someone before the Court (in this case defendants being prosecuted by the office of the City Attorney) objects and moves that the judge recuse. This would in effect transfer the responsibility of monitoring compliance with Canon 3 E(1) from the Judge to those appearing before the court.

It is of interest to note that the former Arkansas Code contained the precatory language Ashould@ in its similar provision and that the Code contains the mandatory word Ashall@. This mandatory provision is not qualified. Certainly we would not want Canon 3 E(1) to read, AA judge shall disqualify himself or herself in a proceeding in which the judge=s impartiality might reasonably be questioned, provided however if no ne objects the judge may hear the case even if his or her impartiality might reasonably be questioned.@

Responsibility for compliance with Canon 3 E(1) lies squarely with the judge. Recusal is a decision for the judge and is not decision to be made by the person before the bench. We affirm our Advisory Opinion No. 94-02.

We appreciate your concern for compliance with the Code. Please feel free to contact us at any time.

Very truly yours,


Edwin Alderson

for the Committee

Bruce T. Bullion and Howard Brill concur.

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