COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 38
Disqualification of a Judge Whose Child Is an Assistant United States
Attorney.
A judge in a large, multi-judge district has requested an advisory
opinion as to whether the judge would be disqualified from hearing all
cases in which the United States was represented by any member of the United
States attorney's office if the judge's child accepts a position as an
assistant United States attorney. The child, of course, intends neither
to appear before the judge nor to perform any services in cases assigned
to the judge. Further, the court operates under an individual calendar
system.
Canon 3C(1)(d), Code of Conduct for United States Judges, provides
in part:
C. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned, including,
but not limited to instances in which:
* * *
(d) the judge or the judge's spouse, or a person related to
either within the third degree of relationship, or the spouse of such a
person:
* * *
(iii) is acting as a lawyer in the proceeding; . . . .
The Commentary under subsection (d) provides:
The fact that a lawyer in a proceeding is affiliated with a
law firm with which a lawyer-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 Canon
3C(1), or that the lawyer-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 Canon 3C(l)(d)(iii) may require the judge's disqualification.
The latter part of this Commentary would not operate to disqualify
the judge in question. First, the judge's child would not have an "interest"
in the United States attorney's office as that word is used in the Commentary.
Second, the United States attorney's office is not a law firm. And, third,
that office is ordinarily not "substantially affected by the outcome of
the proceeding."
The official notes to the 1973 ABA Code of Judicial Conduct explain
on Page 63:
The Commentary clarifies the status of a judge who was formerly
a lawyer in a governmental agency. An agency -- for example, the Justice
Department -- is not fully equated with a private law firm, in that a former
agency lawyer is not considered to have been associated with all other
lawyers in the agency. If the former agency lawyer, now a judge, served
as a lawyer in the matter in controversy, he is disqualified. The judge
is disqualified also if his association with an agency lawyer now before
the court or his association with the matter in controversy leads to the
conclusion that, under the general standard of Canon 3C(1), his impartiality
might reasonably be questioned. The general standard should be considered
also when a former associate or partner in a private law firm is a lawyer
in the proceeding before a judge. Can the judge's impartiality reasonably
be questioned because of the former association?
See Thode, Reporter's Notes to Code of Judicial Conduct 63
(ABA 1973).
The last question is raised here, specifically, "Can the judge's
impartiality reasonably be questioned because the judge's child
is an assistant United States attorney?" It does not seem
reasonable
to do so in view of the unique nature and obligations of the United States
attorney's office, which does not represent clients, as do private law
firms, but rather, the public interest.
The distinction between the United States attorney's office and
a private law firm was recognized in Berger v. United States, 295
U.S. 78, 88 (1934), where the United States Supreme Court said:
The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer.
In view of this basic distinction, it would seem unreasonable to question
the judge's impartiality merely because the judge's child happened to be
an assistant United States attorney.
The gravest problem is presented by the need to avoid the appearance
of partiality. In view of the court's individual assignment calendar, it
will be possible to avoid the appearance that the judge's child may have
inadvertently worked on briefs or investigations in cases heard before
the judge.
If the judge has been on the bench for a number of years or if he
or she is a close friend of one or more members of the bench, an additional
problem may arise relating to the child's appearance before the judges
of the court. This problem, however, is no different from that encountered
when a judge's son or daughter is with a private law firm and must appear
before other members of a court. Just as in those other instances, the
problem of avoiding the appearance of partiality in this instance must
be dealt with depending upon the individual relationships between the child
and the judge's colleagues.
August 1, 1974
Revised July 10, 1998