December 4, 1998
Honorable Phillip T. Whiteaker
Circuit/Chancery Judge Division II
Lonoke County Courthouse
301 North Center
Lonoke, AR 72086
RE: Advisory Opinion # 98-05
Dear Judge Whiteaker:
You have asked this committee whether there is an ethical
impropriety in your presiding over cases in which one of the litigants is represented by
an attorney for whom your spouse, who is self-employed, performs accounting services. You
state that Mrs. Whiteaker works outside the home rendering accounting/bookkeeping services
to her clients, which may include attorneys who regularly appear before you. You state
that Mrs. Whiteaker is engaged as an independent contractor, has no involvement with firm
clients or particular cases, and has only limited contact with the particular firm in
general. She has no specific hours of work ( averaging less than ten hours a month in the
client's office) and that neither taxes, insurance nor social security are withheld.
Canon 3(E) of the Arkansas Code of Judicial Conduct governs the
disqualification by judges. Four (4) specific provisions are covered by the canon, none of
which is applicable to the situation you pose. Thus, the applicable language is "A
judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned . . . ." Canon 2 provides that "A
Judge Shall Avoid Impropriety and the Appearance of Impropriety in all the Judge's
Activities".
Summarizing the assumed facts, a self-employed spouse of a judge
performs part-time accounting services for an attorney who practices before such judge,
and might have unauthorized access to the files of clients involved in litigation before
that judge. With these facts in mind, we do not believe that a reasonable person would
conclude that the appearance of a conflict arises.
Sincerely,
Steele Hays
For the Committee |
