December 20, 1999
Honorable Paul E. Danielson
Circuit Judge, Fifteenth Judicial District
P.O. Drawer 80
Booneville, AR 72927
RE: Opinion #95-2
Dear Judge Danielson:
In your letter dated February 15, 1995 and your subsequent telephone call of February 28, 1995 you stated that your brother-in-law, John R. Williams, shares office space with another attorney, Wendy Johnson. You stated that they have separate practices and that they are not partners in a firm. You stated that both attorneys have been hired individually to do legal work for the City of Booneville; that they are each paid separately,and that they have different responsibilities. You have inquired as to whether you should recuse in any cases before your court in which Wendy Johnson appears as an attorney.
Canon 3E. Disqualification provides:
"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
... (d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them or the spouse of such a person ... (ii) is acting as a lawyer in the proceeding ... The Code defines the third degree of relationship as follows: "The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece." The Commentary to this section states, "The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact 'the judge's impartiality might reasonably be questioned' under Section 3E(1), or that the 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 Section 3E(1)(d)(iii) may require the judge's disqualification."
The Commentary, while addressing the issue of a law firm, is persuasive in supporting your position of not being required to recuse since you state that your brother-in-law and the other attorney are not members of a law firm. In Alabama, Advisory Opinion 83-171 (1983) held that if a judge's son-in-law serves as an assistant district attorney the judge is disqualified from hearing only those criminal cases in which his/her son-in-law is directly involved or participates as an assistant district attorney. In Florida it was ruled, with two dissents, that recusal was required for the judge's brother-in-law but not for other members of the brother-in-law's firm. (79-7 issue 1, 1979). In New Mexico the opinion was that a judge's son-in-law, a deputy district attorney, may not appear before the judge but that other deputies may appear if the judge discloses the relationship to defendants before him. (NM 87-6, 1987).
We consider, under the strict circumstances that you have outlined to us, that your recusal in cases wherein Wendy Johnson appears should not be required under Canon 3E(1)(d)(ii) unless there are other circumstances under the broad purview of this section where your impartiality might reasonably be questioned.
Very truly yours,
Edwin Alderson
For the Committee