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November 14, 1995

The Honorable John N. Fogleman
Circuit Judge, Second Judicial District
116 Military Road
Marion, AR 72364

RE: Advisory Opinion No. 95-06

Dear Judge Fogleman:

In your letter dated October 31, 1995 you requested our opinion as to whether you should disqualify yourself in cases wherein a Deputy Prosecuting Attorney appears, who is the uncle of your part-time secretary. You asked, "Would a judge whose employee is related (by blood or marriage) to a lawyer (within the third degree of relationship) appearing before the judge be required to disqualify from the proceeding?" The answer to this broader question depends upon other factors and we cannot answer it as framed. We can address your particular situation.

The Canon 3 B(1) of the Arkansas Code of Judicial Conduct provides, "A judge shall hear and decide matters assigned to the judge except those in which disqualification is required." There are no specific provisions in the Code that apply directly to this situation and the only issue is whether your failing to disqualify would violate Canon 2 which requires that a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

In our Advisory Opinion No. 94-08 we stated, "Judges need to consider seriously the issues concerning disqualification but they also have an obligation to be available to handle the caseload before them." Based on the information provided in your letter, and absent other qualifying factors, we are of the opinion that you should not be required to disqualify. A contrary interpretation of the Code under these circumstances would in our opinion be strained and impractical.

Very Truly Yours,

Edwin B. Alderson, Jr

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