2015-17 (September 17, 2015)
Disclosure/Disqualification; Family
Rules 1.2, 2.4 & 2.11
 
Issue: A Judicial Official’s adult child, who lives in the Judicial Official’s home, has been hired by a law firm as a paralegal.  The paralegal is paid a salary and receives no other economic benefit from the law firm for any cases that he or she is assigned to work on.
 
The Judicial Official intends to announce in court the facts of the relationship and will recuse himself or herself if there is an objection.  The Judicial Official will continue to hear cases where the law firm has an appearance only if the adult child has not had any connection to the case before the Judicial Official. 
 
Based upon the above, the Judicial Official inquires whether he or she can preside over cases in which the law firm has an appearance and:
 
1.    The family member’s law firm or its client appears in court but the other party, or counsel for the other party, has failed to appear in the case;
2.    The other party, or counsel for the other party, appears in court but the family member’s law firm or its client is not present in court; or
3.    A nonarguable motion is submitted.
 
Applicable Rules of Judicial Conduct: 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 2.4 states, in relevant part, that “(b) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.  (c) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge’s judicial conduct or judgment.”

Rule 2.11(a) states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned ….”  One of the specifically identified circumstances requiring disqualification are when the judge knows that the judge’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 person who has more than a de minimis interest that could be substantially affected by the proceeding.”   Rule 2.11 (a) (2) (C).  An additional circumstance requiring disqualification occurs when the judge knows that the judge, “individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.”  Rule 2.11 (a) (3).  Comment (4) to Rule 2.11 states as follows: “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 itself disqualify the judge.  If, however, the judge’s impartiality might reasonably be questioned under subsection (a) or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under subsection (a) (2) (C), the judge’s disqualification is required.” 

Rule 2.11 (c) states that a judge subject to disqualification under this Rule, except for bias or prejudice under subsection (a)(1), “may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification, provided that the judge shall disclose on the record the basis of such disqualification. If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding.”

Response: Based on the facts presented, the Committee unanimously determined that the Judicial Official is not disqualified from presiding over cases involving the family member’s law firm, but agrees with the Judicial Official that disclosure of the relationship is recommended based on Rule 1.2’s proscription with respect to avoiding the appearance of impropriety. At issue in the present inquiry is whether disclosure is called for when one or more of the parties do not appear in court.  The Judicial Official describes three different scenarios and asks whether he or she may preside over cases in each situation. Based on Rule 2.11(c), the Committee concluded that disclosure must be made to the parties and their lawyers “on the record” (i.e., in open court).  The scenarios, and the responses to each, are as follows:
 
1.    The family member's law firm or its client appears in court but the other party, or counsel for the other party, has failed to appear in the case.
 
Response:  The judge should not preside in this situation unless disclosure has been made on the record to the parties or their counsel.
 
2.    The other party, or counsel for the other party, appears in court but the family member's law firm or its client is not present in court.
 
Response:  The judge should not preside in this situation unless disclosure has been made on the record to the parties or their counsel.  
 
3.    A nonarguable motion is submitted.
 
Response:  The judge should not rule on any nonarguable motion until disclosure is made on the record to the parties or their counsel.
 
In reaching its decision, the Committee reviewed the following opinions in which it considered the issue of disqualification when a family member is affiliated with a law firm: JE 2012-03 (judge should disclose marital relationship and inquire whether spouse had any involvement in case), JE 2013-48 (non-appellate level judge is not disqualified from presiding over case involving relative’s law firm, subject to disclosure and other conditions) and JE 2014-12 (appellate level judge is not disqualified from presiding over case in which relative’s law firm appears, subject to conditions).