COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 11
Judge Acting in Controversy Where Friend of Long Standing or Friend's
Law Firm Is Counsel.
A judge inquires whether he should excuse himself in cases where
one of the attorneys is a friend of long standing and is also a godfather
of one of the judge's children. He also asks if he should sit in cases
where a party is represented by a member or associate of such attorney's
firm.
The first question is not capable of answer by crisp formulation.
Canon 33 of the Canons of Judicial Ethics of the American Bar Association,
adopted in 1924, made clear that judges should, so far as their work permits,
continue to have friends and participate in society. Canon 13 stated:
A judge should not act in a controversy where a near relative is
a party; he should not suffer his conduct to justify the impression that
any person can improperly influence him or unduly enjoy his favor, or that
he is affected by the kinship, rank, position or influence of any party
or other person.
See also Canon 26. Though these canons have been superseded,
their principles remain valid and are reflected in Canons 2B and 3C(1)
of the Code of Conduct for United States Judges.
Our analysis of this question under the old ABA Canons concluded
that the ABA Canons do not bar a judge from presiding under the described
circumstances. The twofold test is whether the judge feels capable of disregarding
the relationship and whether others can reasonably be expected to believe
that the relationship is disregarded. A godfather is not a "near relative"
referred to in ABA Canon 13. The relationship may have only historical
significance, the obligation having been perfunctorily assumed, the godfather
being merely within the wide circle of a judge's friendship. Or, the godfather
may in some cases become a very close friend and almost part of the family.
In the latter case the judge should, in the spirit of ABA Canon 13, excuse
himself. The decision must of necessity be that of the judge. Under the
Code of Conduct for United States Judges, which presently governs these
issues, we similarly conclude that a judge's child's godfather is not related
to the judge within the third degree of relationship so that a judge need
not recuse under Canon 3C(1)(d); the judge should recuse in this circumstance
only if "the judge's impartiality might reasonably be questioned" within
the meaning of Canon 3C(1).
The question regarding members or associates of the firm of the
friend and godfather poses no problem. It cannot be that judges must recuse
from all cases handled by a law firm simply because judges have firm members
for friends. Here again there may be special circumstances dictating disqualification,
but a friendly relationship is not sufficient reason in itself.
January 21, 1970
Revised January 16, 1998