COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 61
Appointment of a Law Partner of the Judge's Nephew as a Special Master.
A judge has asked for the views of the Committee concerning the
proposed appointment of an attorney as a special master, pursuant to Rule
53 of the Federal Rules of Civil Procedure, to supervise discovery in a
civil case pending before the judge. The judge has called attention to
three circumstances of possible pertinence to the appropriateness of the
proposed appointment. First, the proposed special master is a partner in
a firm of which the judge's nephew is also a partner. Second, the firm
has employed on a part-time basis the judge's child, currently a law student.
Third, the judge has previously taken the position that no member of the
firm may appear before the judge in any matter. The proposed special master
is apparently eminently qualified to handle the assignment. While the proposed
order of appointment is silent on the matter of compensation, the appointment
is to be made pursuant to Rule 53, which authorizes compensation to be
fixed by the court and charged to the parties.
Canon 3B(4) provides: "[a] judge should not make unnecessary appointments
and should exercise that power only on the basis of merit, avoiding nepotism
and favoritism." By including "favoritism" as an impermissible objective
in making appointments, the canon obviously goes beyond the statutory ban
on nepotism contained in 28 U.S.C. § 458, which prohibits appointment
of any person "related by affinity or consanguinity within the degree of
first cousin to any justice or judge of such court."
The question is when an appointment, even though initially proposed
on the basis of merit, ought to be precluded because of relationships that
either indicate or create the appearance of favoritism. In another context
the Committee has concluded that the appearance of an attorney who is a
partner in a firm of which another partner is related to the judge within
the third degree of relationship is grounds for recusal of the judge. See
Advisory Opinion No. 58. That conclusion was prompted by concern about
the judge's decision affecting compensation of a relative because the relative
would participate in the fee of the attorney appearing before the judge.
We think the same concern applies to a relative of the judge participating
in a fee of the relative's law partner, where that fee is derived from
compensation of the partner in connection with duties as a special master.
Even if a partner of the firm is not obliged to share with the firm fees
earned as compensation for professional services rendered as a special
master, the appearance of impropriety standard of Canon 2 ought to preclude
the opportunity for a judge to determine the compensation of a partner
of the judge's relative.
The Committee has no doubt that in this instance the selection of
the attorney to serve as a special master was made entirely on the basis
of merit and with no thought of conferring a benefit on the judge's relative.
But it does not believe the propriety under Canon 3B(4) of appointing to
compensable positions attorneys who are law partners of a judge's relative
can turn upon an individual assessment of the professional competence of
the attorney to be appointed.
There are also situations in which a proposed appointment, without
compensation, of the law partner of a judge's relative would be considered
"favoritism" within the meaning of Canon 3B(4) or would create the appearance
of impropriety within the meaning of Canon 2. The proposed appointment
appears to involve solely a professional undertaking unlikely to be regarded
in the community as conferring any non-monetary benefit. However, such
an appointment generally carries with it entitlement to reasonable compensation,
and would likely be regarded in the community as conferring a monetary
benefit, even if in fact compensation were waived. Moreover, waiver of
compensation would raise the additional issue of the impropriety of a law
firm's performing costly favors for the court.
We therefore conclude that, in the circumstances described, the
appointment as a special master of a law partner of the judge's nephew
ought not to be made.
April 16, 1979
Revised July 10, 1998