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