2012-19 (Emergency Staff Opinion issued July 2, 2012)
Disqualification; Family; Canon 1;
Rule 2.11
 
Issue: A civil action was filed against a nonprofit corporation and its wholly owned subsidiary, which is a separate limited liability corporation. The Judicial Official’s spouse is an executive level employee of the parent corporation and reports to its Board of Directors, and also serves on the board of the subsidiary. The Judicial Official’s spouse is not personally named as a defendant in the lawsuit. The nonprofit corporation and the subsidiary have different insurance carriers and are represented by different law firms. The Judicial Official has inquired whether he/she is disqualified from presiding over cases in which the law firms representing either the corporation or the subsidiary appear before the Judicial Official (other than the case involving the business where the Judicial Official is employed).

A review of the appearances in the pending lawsuit reveals law firm, as opposed to individual attorney, appearances.

Applicable Rules: Rule 2.11 sets forth the rules requiring disqualification and states, in relevant part, that a Judicial Official shall disqualify himself or herself in any proceeding in which the Judicial Official’s impartiality might reasonably be questioned, including but not limited to the following circumstance: (1) the Judicial Official has a personal bias or prejudice concerning a party or a party’s lawyer, (2) the Judicial Official knows that the Judicial Official, the Judicial Official’s spouse or domestic partner, or a person within the third degree of relationship to either of them or the spouse or domestic partner of such a person is: (A) a party to the proceeding or an officer, director, general partner, managing member or trustee of a party ... (C) a person who has more than a de minimis interest that could be substantially affected by the proceeding, or (D) likely to be a material witness in the proceeding.

Emergency Staff Opinion: After consulting with several members of the Committee, including the Chair, staff counsel advised the Judicial Official as follows.

On the facts presented, if the Judicial Official believes that the pending matter involving the Judicial Official’s spouse’s employer and the subsidiary corporation could substantially affect either the spouse’s employer, the subsidiary corporation or the Judicial Official’s spouse, the Judicial Official should recuse himself or herself from all cases involving the law firms representing either the Judicial Official’s spouse’s employer or the subsidiary corporation until the lawsuit against the employer and subsidiary corporation is disposed or the Judicial Official may follow the procedure in Rule 2.11(c) to request the parties to consider whether to waive the Judicial Official’s disqualification. If the Judicial Official does not believe that the employer, its subsidiary corporation or the Judicial Official’s spouse could be substantially affected by the lawsuit, the Judicial Official should disclose the facts of the lawsuit and representation and inquire whether the attorney appearing before the Judicial Official has had any involvement in the lawsuit involving the Judicial Official’s spouse’s employer. If the appearing attorney has had any involvement in that case, the Judicial Official should recuse himself or herself or may follow the procedure in Rule 2.11(c) to request the parties to consider whether to waive the Judicial Official’s disqualification. If the appearing attorney has had no involvement in the case involving the Judicial Official’s spouse’s employer, the Judicial Official may preside over the unrelated matter unless a motion to disqualify the Judicial Official is filed and, based upon the information provided in connection with said motion, the Judicial Official determines that he or she should recuse himself or herself.

In rendering this opinion, staff also considered U.S. Committee on Codes of Conduct Advisory Opinion No. 107 (June 22, 2007), Emergency Staff Opinion JE 2009-30 and JE 2012-03.