Opinion 87-03

Topic:          Disqualification; family relationship; judge’s brother is a member of law firm and Public Defender’s Office. The lawyer-brother law firm consists of the brother and at least four other attorneys who practice in that city court. Three of those other attorneys are employed as part-time members of a staff of eleven attorneys known as the County Public Defender’s Office, in addition to their private practice.

Digest:         The Acting Judge of a City Court, where 2 full-time judges also preside, should disqualify himself from cases in which his lawyer-brother’s partners or associates appear, whether in their capacities as private practitioners and as part-time members of the Public Defender’s staff, but as to the latter, disclosure on the record and written consent of all parties to permit judge to preside would suffice.

Rules:          Canon 2; Canon 3(C)(d)(ii); Rule 100.2; Rule 100.3(c)(1); Canon 3(1)(d)(iii); Rule 100.3(c)(iv)(b); Canon 3(D); Rule 100.3(d).

Opinion:

         While Canon 3(C)(d)(ii) of the Code of Judicial Conduct mandates that the judge disqualify himself or herself in a case in which the judge’s brother is acting as the attorney, the Commentary to that provision indicates that it does not require a per se disqualification in all cases in which a lawyer affiliated with the lawyer-brother’s firm appears. However, both Canon 3 and §100.3(c)(1) of the Rules of the Chief Administrator of the Courts require that a judge disqualify himself or herself in a proceeding in which the judge’s “impartiality might reasonably be questioned,” including but not limited to instances where the judge’s lawyer-relative has an interest in the law firm “that could be substantially affected by the outcome of the proceeding” [Canon 3(1)(d)(iii); Rule 100.3(c)(iv)(b)].

         Relating these precepts to the particular questions posed here, the Committee believes that because of the brother-lawyer’s partnership interest in the firm, the judge should, as a matter of course, disqualify himself in all cases in which any partner or associate of his brother’s firm appears in his or her capacity as a private practitioner. Since there are two other full time judges available in the court involved, no prejudice to litigants or disruption of orderly court procedures would ensue by reason of the Acting Judge’s recusal in those cases.

         With respect to whether the judge’s recusal is similarly indicated where the brother’s partners or associates appear in their capacities as members of the Public Defender’s staff, reference is directed to Canon 2 and §100.2 of the Rules of the Chief Administrator which require a judge at all times to conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary, that is, not only to avoid impropriety but also the appearance of impropriety, and specifically prohibits a judge from allowing his or her family relationships to influence his or her judicial conduct or judgment, or conveying or permitting others to convey the impression that they are in a special position to influence the judge.

         While these considerations would not automatically mandate disqualification in cases where the lawyer-brother’s partners or associates appear as members of the Public Defender’s office, under the circumstances here prevailing – i.e., availability of other judges, the comparatively small size of the community, the limited size of the firm and the potential for the appearance of impropriety – it is recommended that the judge disqualify himself in these cases as well.

         It is noted that §100.3(d) of the Chief Administrator’s Rules and Canon 3(D) provide an alternative to disqualification in situations such as these. Instead of withdrawing from the proceeding, the judge may disclose on the record the basis of the disqualification and if, based on such disclosure, all parties and lawyers agree in writing that the judge’s relationship is immaterial, then the judge may participate in the proceeding. It is suggested that this procedure may be particularly appropriate and recommended in those cases where the brother’s associates appear in their public defender roles, but less desirable and not recommended in instances where they appear in their private practice capacities.

         This Opinion is advisory only and does not bind either the Office of Court Administration or the Commission of Judicial Conduct.