COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 60

Appointment of the Spouse of an Assistant United States Attorney as Part-time Magistrate Judge.

The Committee has been asked whether a district court may appoint the spouse of an assistant United States attorney as a magistrate judge assuming, of course, that the magistrate judge's spouse will not appear in any case over which the magistrate judge presides. In fact, the two will perform their duties in different divisions of the district.

In Advisory Opinion No. 38, the Committee expressed the opinion that a judge in a large multi-judge district court would not be disqualified per se 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 accepted a position as an assistant United States attorney. As the Committee said:

The last question is raised here, specifically, "Can the judge's impartiality reasonably be questioned because his son 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 Committee did caution that additional problems might be faced where the members of the bench would be personally acquainted with the judge's child and felt those relationships should be dealt with on an individual basis.

Does the relationship of husband and wife differ so significantly from that of parent and child that a different rule is required when a judge is married to a prosecutor? The question deserves careful consideration because the likelihood that a judge's spouse will be employed in the legal system is greater now than it has been in prior decades.

The usual relationship of husband and wife differs in three respects from the usual relationship of parent and child: (1) the spouses reside in the same household; (2) each presumably directly shares in the other's income; and (3) their communications to one another are privileged.

None of these three aspects of the spousal relationship justifies a special ethical rule that generally prohibits a wife and husband from doing what a child and parent may do.

What spouses say to each other is, to a greater or lesser extent, privileged in all states. And, if a lawyer spouse spoke to a judge spouse with an intent to influence the judge's conduct, both could at least in some jurisdictions legally conceal the contents of these conversations from any investigation. This theoretical possibility has little real world significance. If illicit influence is to be exercised, it is not privilege that causes its concealment, it is the very illicit nature of the influence. The existence of spousal privilege does not, in our view, require judicial disqualification to any greater extent than is required when judge and lawyer are parent and child.

Spouses usually share each other's income and a threat to the income of one is a threat to the income of both. In theory, a judge might fear his or her spouse will be discharged or demoted if the judge rules too often against the government, or a judge may be perceived as favoring the government in order to advance the interests of a spouse. In fact, professional employment practices in government offices make this possibility very remote. Even if this possibility were not so remote, the Committee believes that the chance that a child would lose a job or promotion is likely to be just as wrenching to a judge as the same chance with respect to a spouse.

Spouses do live together far more often than do parents and adult children. This would permit a spouse more opportunity to influence a judge than anyone else would ordinarily have. Yet a lawyer child or parent intending to influence a child or parent who is a judge is surely able to spend enough time with the judge to try to do so. The mere fact that a spouse customarily spends more time with the judge than does the judge's parent or child fails to justify imposing greater career restrictions upon parents or children. Moreover, it is wrong to adopt the principle that spouses necessarily exercise unacceptable influence on the judge to whom they are married. Many judges' spouses today are employed and few would doubt the propriety of these judges hearing cases on which their lawyer-spouse, doctor-spouse, accountant-spouse, minister-spouse, teacher-spouse or business-executive-spouse might have a particular point of view arising from their employment.

We have followed these views in our unpublished opinions. We have advised that a magistrate judge could hear state habeas corpus cases when the magistrate judge's spouse was employed by the state attorney general to handle habeas corpus cases as long as a reliable procedure is established to insure neither the spouse nor anyone the spouse supervised would be assigned to or have any involvement with the cases before the magistrate judge. We have advised that the canons do not preclude a part-time magistrate judge from hearing criminal cases when the judge's spouse was in the civil division of the United States attorney's office.

We find then no basis in the canons to apply different rules to the spousal relationship than to the parent-child relationship and find no barrier to the appointment of a spouse of an assistant United States attorney to the position of magistrate judge.⁽¹⁾

There are rules other than the canons which we must consider here because the appointment in question is to the position of part-time magistrate judge. The Judicial Conference has adopted a specific rule for part-time appointees. The Judicial Conference Conflict-of-Interest Rules for Part-Time Magistrate Judges provide that:

1. A part-time magistrate judge, his or her partners and associates, may appear as counsel in any civil action in any court or governmental agency, including matters in which the United States is a party or has a direct and substantial interest, but they may not appear in cases in which the part-time magistrate judge has been involved in connection with his or her official duties.
* * *
4. A part-time magistrate judge's partners and associates may appear as counsel in any criminal action in any state court and in any federal court other than in the district in which the part-time magistrate judge serves, provided that the part-time magistrate judge has not been involved in such criminal proceeding in connection with his or her official duties.

Guide to Judiciary Policies and Procedures, Volume II, Chapter III, p. III-1.

If the spousal relationship is analogous to the partner judge relationship, then a part-time magistrate judge would have difficulty presiding in a district where the spouse was an assistant United States attorney except where the prosecutor appeared only in civil cases. But we do not find that the relationship of spouses and current law partners is analogous. The sharing of income among spouses on annual fixed salaries is very different from the sharing of a law firm's income among partners whose draw depends on the firm's income. The income varies from year to year and so may the partners' percentages. Moreover, reputation and standing are more important to the annual economic success of a law firm than they are to a married couple each holding a government job. While, under other circumstances, the analogy between partner and spouse may be close enough to require application to spouses of the law partner conflict rules, the situation of spouses both employed in government service does not.

For the foregoing reasons, the Committee has determined to rescind its earlier advice on this issue and to render this opinion advising that there is no impropriety in the appointment of a magistrate judge whose spouse is employed by the United States attorney's office in a division of the district different from the magistrate judge. We believe this is a reliable procedure to insure that neither the spouse nor anyone supervised by the spouse would be assigned to or have any involvement with the cases before the magistrate judge.

April 16, 1979
Revised May 27, 1994
Reviewed January 16, 1998

1. ¹ We express no opinion on the propriety of simultaneous service of one spouse as judge and another as prosecutor in a very small district where such service would cause significant distortion in the allocation of caseloads.