Opinion 22-27

April 1, 2022

Dear :

This responds to your inquiry (22-27) in which you have stated that your spouse represented a particular individual on a criminal matter, which has now been resolved. Your spouse’s former client now faces new criminal charges and has retained a different attorney. You have asked if it is ethically permissible to preside in this new criminal case where your spouse’s former client is represented by other counsel.

You have also stated that in addition to being a town justice, you are a full-time principal court attorney to a superior court judge. You have asked if your superior court judge must recuse on cases where a party who appears before you in town court “also has matters (pending or resolved) before” the superior court judge.

Question 1: Spouse’s Former Client

The Committee has previously advised that where the judge’s spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees, the judge is not disqualified merely because the judge is aware that one of the litigants is also a current or former client of the judge’s spouse’s law firm in other, unrelated matters (see Opinion 21-14). The judge may, in their discretion, disclose the relationship without incurring any obligation to disqualify (see id.).

Thus, you are advised that it is ethically permissible for you to preside in the new criminal case where your spouse’s former client is represented by other counsel.

Question 2:  Disqualification/Insulation Obligations

 The Committee has advised that a town justice who also serves as a superior court law clerk must be insulated as a law clerk from all matters originating in the town court, and the insulation is not subject to waiver or remittal (see Opinion 19-12). The Committee has further advised that a town justice who serves as a court attorney to a multi bench county court judge: (1) must be insulated in the superior court from (a) all matters originating in the town court in which he/she presides and (b) every matter that touches on an incident over which the court attorney presided as a town justice, even if it was a completely separate case; (2) may preside in a town court criminal case involving a defendant who is also appearing before the superior court judge, even if the town court case may be resolved by a guilty plea in the superior court, provided the justice is insulated from the superior court criminal case; and (3) may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter (see Opinion 19-05).

Therefore, your superior court judge may not be required to recuse on cases where a party who appears before you in town court also has matters before the judge. However, the judge may be required to insulate you in the superior court from certain matters, as discussed in Opinion 19-05. You may also be disqualified from presiding in the circumstances described in section 3 of Opinion 19-05.

Enclosed for your convenience are Opinions 21-14; 19-12; 19-05 which address this issue.

        Very truly yours,

                                       Margaret Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

                                       Lillian Wan

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.