ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 8 - 2012
RE: Propriety of a circuit court judge presiding in cases where judge’s niece and nephew are attorneys in a firm appearing before the judge.
A circuit court judge has a nephew and a niece who have both recently become attorneys and employed at local law firms. The judge inquires into the propriety of presiding in matters where the niece or nephew’s law firms appear.
The judge may not preside over cases in which a niece or nephew appear as an attorney. However, the judge may be able to preside when other members of the niece or nephew’s firm appear, as long as the judge observes the requirements of Canon 3E.
Canon 3E(1)(d) states that an judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned, including where “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person” is an attorney in a proceeding. The terminology section of the Code of Judicial Conduct includes “nephew or niece” in the definition of “third degree of relationship.” Thus, the judge must not hear cases in which his nephew or niece appear as an attorney.
However, the judge is not automatically disqualified from hearing cases in which other members of the niece or nephew’s firms appear. The Commentary to Canon 3E states that:
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 that “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 judge’s disqualification.Thus, the judge must consider whether his or impartiality might reasonably be questioned by presiding over a matter in which other members of the niece or nephew’s firm appear. The judge must also consider whether his or her ruling would have a substantial effect on the niece or nephew’s interest in the law firm.
Furthermore, disqualification can be waived. “[A] judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties to consider, out of the presence of the judge, whether to waive disqualification.” Canon 3F. If the parties all agree that the judge should not be disqualified, the judge may preside. Id.