The Ethics Advisory Committee has been asked for its opinion concerning the circumstances under which the Code of Judicial Conduct would require a judge to disqualify him or herself from hearing cases when the Legal Defenders' Association (LDA), the former employer of the judge and the current employer of the judge's spouse, is involved in the proceeding.

It is the committee's opinion that the Code requires the judge to disqualify him or herself in all cases where LDA is the attorney of record and the judge was associated with LDA when it undertook representation, in all cases where the judge's spouse is the attorney in the matter and in all cases where LDA is the attorney and the judge's spouse is still associated with the office.

Canon 3 of the Code of Judicial Conduct requires a judge to perform the duties of the office diligently and impartially. Canon 3C provides generally that "disqualification must be entered in a proceeding by a judge whose impartiality might reasonably be questioned." The Canon also enumerates specific instances which require disqualification.

Subsection (1)(b) of the Canon requires a judge to enter a disqualification in a proceeding if the judge has served as a lawyer in the matter or has practiced law with a lawyer in the matter who had served in the matter at the time of their association. This language suggests that a judge would be required to disqualify himself or herself in any case where he or she had served as an attorney in the matter or where LDA is the attorney in the matter and the judge was practicing law with LDA when it undertook representation.  However, the American Bar Association's Commentary to Canon 3C(l)(b) states as follows:

A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection: a judge formerly employed by a governmental agency, however, should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association.

Unfortunately, neither the Code nor the ABA commentary provide any guidance as to whether LDA is a governmental agency for purposes of the Code. LDA is funded primarily with funds from county and city government. However, LDA is not subject to the legal and procedural requirements imposed on other government agencies, such as compliance with the procurement code, the open and public meetings act, or the state personnel act. Nor are LDA or its employees entitled to legal representation or indemnification from a governmental entity as provided in the Governmental Immunity Act. Accordingly, it is the opinion of this committee that LDA is not a governmental agency and therefore, a lawyer employed by LDA has an association with other lawyers employed by that office. Thus, under Canon 3C(1)(b), a judge would be required to disqualify him or herself from those cases where the judge had served as an attorney in the matter or where LDA is the attorney and the judge was practicing law with LDA when it undertook the representation.

With respect to the judge's spouse, Subsection (1)(d) of Canon 3 requires disqualification where the judge or the judge's spouse is a party to the proceeding, acting as a lawyer in the proceeding, has an interest in the proceeding that could be substantially affected by the outcome of the proceeding or is likely to be a material witness in the proceeding.

It is evident that this provision requires a judge to disqualify himself or herself from any case in which the judge's spouse is acting as a lawyer. The more difficult question, however, is whether the judge is required to disqualify himself or herself from any proceeding where LDA is the lawyer because of the spouse's association with the firm. The American Bar Association's Commentary to Canon 3C (1)(d) states as follows:

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 "his impartiality might reasonably be questioned" under Canon 3C(l), 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 his disqualification.

The general test as to 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 would 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). In the present case, it is evident that if the spouse's association with LDA 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.

However, the critical issue is whether the judge's impartiality might reasonably be questioned in all cases where LDA is the attorney because of the spouse's association with LDA. There are a number of cases and ethical opinions which address this issue as it relates to a lawyer-relative who is a prosecutor. These decisions conclude that a judge is not required to enter a disqualification in all cases handled by the prosecutor's office when a lawyer-relative of the judge is employed by the prosecutor's office. See State v. Logan 689 P.2d 778 (Kan. 1984), Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984). American Bar Association's Lawyers' Manual on Professional Conduct. 801:3305: Indiana Opinion No. 2  (1983), Federal Advisory Committee Opinion No. 38 (1974). However,where the lawyer-relative is a public defender, a different result has been reached. The Cuyahoga County Bar Association concluded that a judge, who is the nephew or brother of a public defender must disqualify himself from hearing cases in which the public defender, personally or through one of the assistants. represents a party in the case. Cuyahoga County Bar Association Opinion No. 82-1.

The difference in results is apparently based upon the distinction between government agencies and private law offices and the assumption that government agencies, by virtue of the number of  attorneys which they employ, do not have the same opportunity for association and information sharing that exists in a small office. The public defender's office in Salt Lake functions like a private law office in that case information and strategies are shared among attorneys.  Because of that fact, there is a substantial likelihood that the judge's spouse would discuss legal theories, evidentiary issues and case strategies with other attorneys in the office and that neither the prosecuting attorney nor the judge would know for certain when that occurred.

In addition, when the attorney-relative of the judge is the judge's spouse there is an even greater likelihood that the judge's impartiality might be questioned. In Advisory Opinion No. 60 of the Federal Advisory Committee on Judicial Activities,  the Committee concluded that a person may not serve as a part-time magistrate in the district in which that person's spouse is an Assistant United States Attorney because of the appearance of impropriety. The Committee arrived at this decision despite an earlier opinion concluding that a judge would not be disqualified per se from hearing cases in which the United States was represented by the U.S. Attorney's Office where the judge's son was employed as an Assistant United States Attorney. The committee based its decision upon the differences between a husband and wife relationship and other judge and attorney-relative relationships. First, the spouse resides in the same household; second, each spouse presumably shares in the other's income, and third; their communications to one another are privileged. The committee indicated that the same appearance of impropriety would exist if the United States Attorney son resided in the father judge's household or under circumstances where the parent and child, or siblings shared in the other's income.

Accordingly, it is the committee's view that a person of ordinary prudence in the judge's position knowing that the judge's spouse is an attorney with LDA, that the attorneys employed by LDA share case information and strategies among themselves, that the judge resides in the same household as the attorney-spouse, shares in the other's income and whose communications are privileged would find a reasonable basis for questioning the judge's impartiality in those cases where LDA is the attorney.

Under these circumstances, it is the committee's opinion that the judge would be required to enter a disqualification in all cases where LDA is the attorney until the judge's spouse is no longer associated with the office.

In summary, it is the committee's opinion that the Code of Judicial Conduct would require a judge to disqualify himself or herself in all cases where the judge was associated with LDA when it undertook the representation, in all cases where the judge's spouse is the attorney in the matter and in all cases where LDA is the attorney of record and the judge's spouse is still employed by LDA.