Opinion 22-108

Short-Form Opinion

June 30, 2022

Question:          You ask if you may preside in matters in which a former assistant district attorney who prosecuted your first-degree relative in a criminal matter a decade ago appears on unrelated matters and, if so, whether disclosure is required. You indicated that on one prior occasion, you recused from a matter involving the former district attorney, in an abundance of caution.

Discussion:        We have previously advised that a judge whose first-degree relative has been arraigned on criminal charges is disqualified, subject to remittal, when a prosecutor who is personally involved in the criminal case appears before the judge. This obligation persists until entry of judgment. For two years after entry of judgment, disclosure is mandated in lieu of disqualification when a prosecutor who was personally involved in the trial phase appears before the judge on unrelated matters. If, after disclosure, a party objects to the judge presiding, the judge has discretion whether to recuse after considering all relevant factors. We noted that after the two-year period ends, the judge is not ethically required to disclose or recuse when these attorneys appear, provided he/she can be fair and impartial.

Since the criminal matter involving your first-degree relative occurred more than a decade ago, you may preside over matters in which the attorney appears, provided you have determined that you can be fair and impartial. Disclosure is not required under the circumstances. Your prior discretionary recusal does not change our conclusion.

Enclosed:          Opinions 14-60; 16-123.