COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 58
Disqualification in a Case in Which a Relative is Employed by a Participating
Law Firm.
Often questions arise regarding recusal of a judge resulting from
employment or offers of employment by a lawyer or law firm to a relative
of the judge. In most instances, the relative is the child of the judge.
This opinion, however, applies more broadly to all relatives within the
third degree of relationship to both the judge and the judge's spouse as
defined in Canon 3C(3)(a) of the Code of Conduct for United States Judges
(the Code).
The Committee has reached the following conclusions. If the relative
participates in the representation of a party in a case before the judge
or is an equity partner in a law firm which represents a party, the judge
must recuse. Canon 3C(1)(d)(ii) and (iii) of the Code provide:
(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
person:
* * *
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding.
The Committee concludes that an equity partner in a law firm generally
has "an interest that could be substantially affected by the outcome of
the proceeding" in all cases where the law firm represents a party before
the court.
The typical and more difficult situation arises when the relative
is employed by the firm as either an associate or non-equity partner. For
the purposes of this opinion, a non-equity partner is understood as one
who receives a fixed salary, is not entitled to share in the firm's profits,
and has no interest in the firm's client list or goodwill. If the relative
is an associate or non-equity partner and has not participated in the preparation
or presentation of the case before the judge, and the relative's compensation
is in no manner dependent upon the result of the particular case before
the judge, recusal is not mandated. The judge, however, always must be
mindful of Canon 2A which directs that a judge should act at all times
in a manner that "promotes public confidence in the integrity and impartiality
of the judiciary," as well as the general command of Canon 3C(1) that a
judge should recuse in a proceeding in which the "judge's impartiality
might reasonably be questioned." Accordingly, although recusal may not
be prescribed under the facts articulated above, other circumstances may
arise which in combination with the relative's status as an associate or
non-equity partner could raise a question about the judge's impartiality
and thereby warrant recusal.
As a cautionary note, the Committee further observes that the remittal
procedures of Canon 3D are not available if the judge's relative is acting
as a lawyer in the case or is a partner in the law firm representing a
party before the court. Recusal is absolute. As discussed herein, recusal
is not mandated if the firm representing a party before the court employs
a judge's relative as an associate or non-equity partner and the relative
has no involvement in the case. If a judge is concerned, nonetheless, that
his or her impartiality might reasonably be questioned in these circumstances,
the judge may invoke the remittal procedures of Canon 3D.
August 9, 1978
Revised July 10, 1998