The Ethics Advisory Committee has been asked for its opinion on the questions of whether the Code of Judicial Conduct requires a judge to disqualify himself from hearing cases when his former law partner or a member of his former law firm is the attorney of record, when his former law partner is the county attorney and the county attorney's office is the attorney or record, or when the judge's daughter is employed by another county attorney's office and that county attorney's office is the attorney of record.

It is the committee's opinion that a judge is not automatically disqualified in any of the foregoing situations. but that the decision must be made on a case by case basis based upon a variety of factors. In cases involving the judge's former law partner either in his capacity as a private practitioner or as county attorney, or in cases involving a member of the judge's former law firm. the judge must determine whether the case is one which his partner or the law firm handled while the judge was still associated with them. one which he personally handled, or one which could result in a financial benefit to the judge based upon the outcome of the case. In cases where the county attorney's office is counsel of record but a deputy county attorney is handling the case. the Judge need not disqualify himself unless the judge feels his impartiality might reasonably be questioned because of his former partner 's association with that office. Finally, in those cases, where the judge's daughter works part-time as a secretary for a different county attorney, the judge must consider whether there is an appearance of impropriety or a likelihood that he would gain information from his daughter about disputed evidentiary facts in a case pending before him.

The pertinent provisions of the Utah Code of Judicial Conduct are Canons 2A and 2B, and 3C and 3D. These provisions are substantially similar to the ABA Canons of Judicial Ethics, Canons 2A and 2B state that a "judge should exhibit conduct which promotes public confidence in the integrity and impartiality of the judiciary", and a "judge should not allow family, social, or other relationships to influence judicial conduct or judgment." Canon 3C provides as follows:

C. Disqualification.

(1) Disqualification must be entered in a proceeding by any judge whose impartiality might reasonably be questioned, including but not limited to instances where:

(a) The judge has a personal bias or prejudice concerning a party, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) The judge has served as lawyer in the matter in controversy, had practiced law with a lawyer who had served in the matter at the time of their association. or the judge or such lawyer has been a material witness concerning it;

(c) The judge knows of a financial interest, including fiduciary interest, of either the judge personally or the judge's spouse and/or minor children residing in the household, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) The judge or spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person.

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(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;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

D. Remittal of Disqualification. A judge may, instead of withdrawing from the proceeding, disclose on the record or in writing the basis of the disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree that the judge's relationship is immaterial or that the financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement of the parties must be entered on the record or, if written, signed by all the parties and included in the case file.

FORMER PARTNER/FORMER FIRM AS PRIVATE COUNSEL

Where the former partner is serving as a private attorney in a civil matter or the former law firm is counsel of record, Canon 3C requires that the judge disqualify himself if he is being asked to hear a case in which the partner or the firm was involved while the judge was associated with them or one in which the judge, himself, was involved, or one in which the judge may benefit financially from the outcome. In addition, even where a judge can respond favorably to these considerations, if the judge feels his impartiality might reasonably he questioned because of the association he should disqualify himself.

The general test applied to determine whether a judge's impartiality might reasonably be questioned is whether a person of ordinary prudence in the judge's position knowing all the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality. SCA Services. Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977). The Annotations to Canon 3C explain that there is no automatic disqualification when a member of the judge's former law firm appears in the judge's court. Rather, all of the facts must be examined. Some of the factors to be considered are: the amount of time which has transpired since the judge left the firm, whether the judge maintained a close relationship with the remaining members of the firm, whether the judge has any business interests with the members of the firm, whether the judge still receives money from the firm due to the termination of cases or the purchase of the judge's interest in the firm. The issue is whether these factors indicate to a person of ordinary prudence that the judge's impartiality might reasonably be questioned. Hall v. Hall, 247 S.E 1d 754 (Ga. 1978); In re Estate of Philbrick, 229 N.W.2d 573 (Wis. 1975).

At its March 1978 meeting, the United States Judicial Conference adopted a resolution cautioning judges against participating in any case in which their former law firm is appearing, and from which they are continuing to draw compensation for services previously rendered. A judge may continue to receive payments for his interest in the firm after assuming the bench, provided it is clear that he is not sharing in profits earned after his departure and he does not participate in any case in which his former firm or any partner or associate is active as counsel until the full amount which he is entitled to receive has been paid to him. Advisory Opinion No. 56 of the Advisory Committee on Judicial Activities.

Informal Opinion No. 594 of the American Bar Association's Committee on Ethics and Professional Responsibility discusses whether a judge should take part in cases where the law firm of which he was formerly a member appears as counsel. Although this opinion predated the current Canon 3C and 3D, it employs reasoning similar to the current provisions of the Code. The committee stated that good taste and a desire to avoid any seeming impropriety might cause a judge to decline to sit if the case was in the firm at the time he was a member; or where a regular client of the firm at the time he was a member is a party to the case; or where a son or other near relative, employed by the firm, had actively participated in the case, either in the trial court or on appeal. The committee concluded by stating:

Your former firm and its clients, just as in the case of other clients, are entitled to the benefit of your judgment on the court on the cases presented, unless there is disqualification or some consideration of the character indicated above which would cause you to decline to sit. In the final analysis it must be left to the good judgment and conscience of the individual judge.

Informal Opinion 1372 considers a similar question and quotes Professor E. Wayne Thode in his Reporter's Notes to Code of Judicial Conduct, in which he stated that:

although the specific standards [under Canon 3C(a)] cover most of the situations in which the disqualification issue will arise, the general standard should not be overlooked. Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge's impartiality might reasonably he questioned' is a basis for the judge's disqualification.

One alternative available to the judge, pursuant to Canon 3D, is to disclose on the record or in writing the basis for his disqualification and allow the parties to determine whether the judge's basis for disqualification is immaterial.

FORMER PARTNER AS COUNTY ATTORNEY
In those cases where the county attorney's office is counsel of record and the former partner as county attorney is personally handling the case, the same considerations apply. The judge should consider the amount of time which has transpired since he was associated with his former partner, whether he has maintained a close relationship with the former partner and whether he has any business interests with the former partner. If these factors indicate to a person of ordinary prudence that the judge's impartiality might reasonably he questioned, the judge should disqualify himself. When other members of the county attorney's office are appearing as counsel of record. the judge is not necessarily required to disqualify himself. The Commentary to Canon 3C provides that where a former partner is employed in a governmental agency, his relationship to the judge does not ipso facto create a relationship between the judge and other members of the agency.

DAUGHTER'S EMPLOYMENT

The judge's daughter's employment with another county attorney's office does not pose a problem unless the judge appears biased toward that office as a result of the employment relationship or if, as a result of his daughter's employment, the judge obtains personal knowledge of disputed evidence facts concerning the proceeding, Canon 3C(l)(a).

This committee's Informal Opinion No. 88-3 discusses the same reasonable basis test for determining when a judge should disqualify him or herself from a proceeding involving a relative. Applying that test, the committee found:

it is evident that if the spouse's association ... caused the judge to develop a personal bias or prejudice concerning a party or an issue in a particular case or placed the judge in a situation where the judge acquired independent information of disputed evidentiary facts through the marital relationship, a person of ordinary prudence would find a reasonable basis for questioning the judge's impartiality and the judge would be required to disqualify him or herself.

In this committee's Informal Opinion No. 88-1 it was held that a juvenile court probation officer can ethically serve in the same geographic location as the officer's spouse, who was a prosecutor in that area, as long as the probation officer's diligence or impartiality might not reasonably be questioned because of a personal bias or prejudice or the receipt of independent information acquired through the marital relationship. This same rationale applies to the present situation. As long as the judge would not be biased towards the office for which his daughter works and would not acquire independent information about disputed evidentiary material through his daughter about matters which will come before him, the judge does not need to disqualify himself from cases in which the county attorney is the prosecutor.

The fact that his daughter has a financial interest in her job is immaterial since she does not reside in the judge's household and her salary is not dependent upon the outcome of the cases handled by the county attorney's office. Canon 3C(l)(c).

Opinion No. 58 from the Advisory Committee on Judicial Activities discusses disqualification in a case in which a relative is employed by a participating law firm. The Committee stated that if compensation of the relative from the law firm (here, the county attorney's office) is affected by the result of the particular case before the judge, then the judge should recuse. The judge should also recuse if the relative appears in court or at the chambers of the judge for a presentation in the case. Neither scenario is likely in the present situation since the relative is employed in a secretarial capacity by the county attorney's office. The Committee concluded:

A judge is disqualified and should recuse if a relative within the third degree of relationship to the judge or his spouse (a) is a partner in a law firm appearing in the case: or (b) will profit or lose from the judge's action in the case either financially or otherwise, for example, the reputation of the firm would be significant affected by the litigation. We believe the judge should recuse if the judge's participation for any reason gives an appearance of impropriety or lessens the public confidence either in the integrity or in the impartiality of the judiciary.

We further conclude if the relative herein described does not in any manner appear or participate in the case and does not take part in its preparation or presentation, and if the relative does not profit directly or indirectly from action by the judge, whether by decision on the merits or otherwise, and if the circumstances of the handling of the case by the judge, including hearings or trial, permit the judge to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary generally and of the participating judge in particular, the judge need not disqualify himself or recuse, even if his relative is an employee of a lawyer or firm appearing in the case.

As secretary to the county attorney's office, the judge's daughter would not appear or participate in the case in a substantive manner, nor would her salary be affected by the action taken by the judge. However, the judge may disclose on the record the basis for disqualification and allow the attorneys to decide whether the conflict is immaterial.

CONCLUSION
In conclusion, it is the committee's opinion that where a judge is hearing a case involving his former law partner or his former firm, he need not disqualify himself as long as the case is not one which his partner or law firm handled while he was associated with that firm, is not one which he personally handled or one which could result in a financial benefit to the judge based upon the outcome. In those cases where the county attorney's office is counsel of record, but the judge's former partner is not personally handling the case, the judge need not disqualify himself unless the judge feels his impartiality might reasonably be questioned because of his former partner's association with that office.

Finally, in those cases involving the county attorney's office where the judge's daughter is employed in a secretarial capacity, the judge need not disqualify himself unless the judge's impartiality might be questioned or by virtue of his relationship with his daughter, he could acquire independent information of disputed evidentiary facts.