Issues: A Judicial Official’s adult child was injured approximately two years ago while visiting someone in the hospital. The Judicial Official knows the risk manager for the hospital from his/her work as a judge. The statute of limitations will run in a few weeks and, therefore, the matter either needs to be settled or a lawsuit commenced. The Judicial Official has inquired as to the following:

• 1) May the Judicial Official, in his or her personal capacity, attempt to settle the case with the hospital on behalf of his or her child? If the case settles, the Judicial Official would not take any fee.
• 2) If the Judicial Official cannot negotiate on behalf of his or her child or, if the Judicial Official negotiates, and the case does not settle, may the Judicial Official assist his or her child in hiring an attorney?
• 3) May the Judicial Official preside over trials involving the hospital that is liable for the injuries to his or her child?
• 4) May the Judicial Official conduct mediations involving the hospital that is liable for the injuries to his or her child?

Relevant Code and Statutory Provisions: Rule 1.2 of the Code of Judicial Conduct states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”

Rule 1.3 of the Code states that a judge “shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.”

Rule 2.11 of the Code 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 ... (C) a person who has more than a de minimis interest that could be substantially affected by the proceeding, …. Comment (1) to Rule 2.11 notes that “a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of subsection (a)(1) through (5) apply.”

Rule 3.10 states that “[e]xcept as provided herein, a judge shall not practice law. A judge may act as a self-represented party and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family but is prohibited from serving as the family member’s lawyer in any forum.”

Conn. Gen. Stat. § 51-47 (4)(c) prohibits a judge from practicing law: “Each judge shall be an elector and a resident of this state, … and shall not engage in private practice….”

Responses: The issues submitted by the inquiring Judicial Official were circulated to the Committee members and their input solicited.

Question (1): May the Judicial Official, in his or her personal capacity, attempt to settle the case with the hospital on behalf of his or her child? If the case settles, the Judicial Official would not take any fee.

In JE 2009-12, this Committee considered whether a judge may act as a legal advisor to a close family member. This 2009 advisory opinion was based on an older version of the Code. The newer Code, which took effect on January 1, 2011, created the following exception to the practice of law ban: a judge is now permitted to “act as a self-represented party and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family but is prohibited from serving as the family member’s lawyer in any forum.” In JE 2009-12, this Committee unanimously determined that the Code prohibits judges from engaging in the “practice of law,” as that term is defined in Practice Book 2-44A and agreed that a judge should not act as a legal advisor to a family member or engage in any potential settlement discussions. The Committee also determined that the Code does not prohibit a judge from providing family members with emotional or moral support, or personal advice based on common sense and good judgment. The Committee indicated that a judge may attend meetings with the family member’s attorney for those purposes alone.

In interpreting a similar provision concerning the practice of law, the New York advisory committee concluded that a full-time judge may serve as the executor of a parent’s estate, and may give uncompensated legal advice to his/her parent, but may not serve as the attorney for the estate. See NY Opinion 14-03. The New York Committee also cited prior opinions where it determined that a judge may not serve as his or her parent’s attorney during an eviction proceeding, may not prepare wills and may not serve as an additional signatory on a sibling’s law office escrow account.

While Rule 3.10 allows a judge to give legal advice to and draft or review documents for his/her family member, a judge is prohibited from serving as the family member’s lawyer in any forum. The term “any forum” was interpreted to include any proceeding which involves a formal dispute resolution process such as settlement negotiations. The Judicial Official was advised that he/she should not attempt to settle the case with the hospital on behalf of his or her adult child.

Question (2): If the Judicial Official cannot negotiate on behalf of his or her child or, if the Judicial Official negotiates, and the case does not settle, may the Judicial Official assist his or her child in hiring an attorney?

Under Rule 3.10, a judge may, without compensation, give legal advice to a member of the judge’s family. The Judicial Official was advised that assisting a child in hiring an attorney and reviewing any contractual documents related to hiring of that attorney falls within this exception.

Question (3): May the Judicial Official preside over trials involving the hospital that is liable for the injuries to his or her child?

Consistent with this Committee’s opinion in JE 2009-12 and Rule 1.2’s obligation to perform the duties of the judicial office impartially, the Judicial Official was advised that he/she should disqualify himself or herself from presiding over trials involving the hospital for at least the duration of the family member’s case. (Rule 2.11(a)).

Question (4): May the Judicial Official conduct mediations involving the hospital that is liable for the injuries to his or her child?

For the reasons noted in Question (3) above, the Judicial Official was advised that he/she should not conduct mediations involving the hospital for at least the duration of the family member’s case.

It should be noted that in Emergency Staff Opinion JE 2012-08, this Committee agreed that a Judicial Official should recuse himself or herself from participating in a pretrial conference involving a law firm that represents the Judicial Official in a pending arbitration matter when the law firm was retained by the Judicial Official’s insurer.