The Ethics Advisory Committee has been asked for its opinion on the question of whether the Code of Judicial Conduct requires an appellate court judge to enter a disqualification when the judge's relative is employed as an attorney by the law firm, which is counsel of record. Specifically, the judge questions whether disqualification is required when the judge's brother is a partner in a law firm which is counsel of record, when the judge's son-in-law is a partner in a law firm which is counsel of record, or when the judge's daughter is an associate in a firm which is counsel of record. It is the committee's opinion that a Judge is required to enter a disqualification when the judge's lawyer-relative is acting as a lawyer in the proceedings or the lawyer-relative is a partner in the law firm which is appearing as counsel of record.

It is also the committee's opinion that a judge would not be required to enter a disqualification when the lawyer-relative is only associated with a firm appearing as counsel unless the associate has an interest which would be significantly affected by the outcome of the litigation. Finally, it is this committee's opinion that if the judge's impartiality might reasonably be questioned by virtue of the judge's relationship to the lawyer-relative, regardless of the lawyer-relative's interest in the outcome of the proceeding, the judge must enter a disqualification or disclose on the record or in writing the basis of the disqualification and allow the parties to determine whether the judge's relationship is immaterial or that the financial interest is insubstantial.

The pertinent provisions of the Code are Canons 2A, 2B, 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." Canons 3C and 3D provide in pertinent part 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:

                  (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:

                        (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;

          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.

Canon 3C(l)(d)(ii) requires recusal when the judge, the judge's spouse or someone within the third degree of relationship to either of them, or the spouse of such a person within the third degree of relationship is acting as a lawyer in the proceeding. As with other portions of Canon 3C(I), the primary purpose of this subsection is to ensure that judges by their conduct maintain public confidence in the courts by avoiding situations which cast doubt on their independence and impartiality. Specifically, this subsection seeks to avoid situations where clients believe that special favor and consideration can be obtained in a case through retention of a judge's relative as attorney. The language only requires judicial disqualification in cases where the relative is acting as a lawyer in the case. Thus, when a judge's relative is merely affiliated with a law firm involved in the case rather than actually representing a party, Canon 3C(l)(d)(ii) does not require recusal. ABA Commentary to Canon 3C; U.S. ex. rel, Weinberger v. Equifax, Inc., 557 F2d 456 (5th Cir. 1977); Reilly by Reilly v. Southeastern Pa. Transp., 479 A.2d 973, 981 (Pa. Super. 1984), Abramson, Judicial Disqualification under Canon 3C of the Code or Judicial Conduct (1986).

Canon 3C(l)(d)(iii), however, requires disqualification when the judge or spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.

This provision may require judicial disqualification when a judge's relative is only affiliated with the law firm involved in the case and not actually representing the party. This determination depends upon whether the lawyer-relative is known by the judge " to have an interest that could be substantially affected by the outcome of the proceeding". Both the Advisory Opinions from the Advisory Committee on Judicial Ethics and the case law interpreting these provisions have concluded that a lawyer-relative who is a partner in a law firm appearing as counsel of record will always have an interest that could be substantially affected by the outcome of the proceedings. Accordingly, a judge is required to enter a disqualification whenever a party is represented by a law firm in which the judge's relative is a partner. Ransom v. S & S Food Center, 700 F.2d 670 (5th Cir. 1983), Potashnick v. Port City Construction, 609 F.2d 1101 (5th Cir.1980); Advisory Opinion No. 58, (1978); Advisory Opinion No. 77, (1985).

The more difficult question is whether the judge must enter a disqualification when a lawyer-relative is merely associated with the firm and is neither a partner in the firm nor actually representing a party. In Advisory Opinion No. 58 (1979), the Advisory Committee on Judicial Activities addressed the question of disqualification where a lawyer-relative is merely associated with a law firm appearing as counsel of record. The committee concluded, inter alia, that a judge must enter a disqualification if the lawyer-relative will profit or lose from the judge's action in the case either financially, i.e. compensation will be affected by the outcome of the proceeding, or otherwise, i.e. the reputation of the firm would be significantly affected by the litigation.

In United States Ex Rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir. 1977), the United States Court of Appeals for the Fifth Circuit reviewed an appeal of a district court's failure to enter a disqualification when the judge's son was an associate of the law firm representing the defendant, Equifax, Inc. The court, citing to the applicable federal statutory provisions governing disqualification, concluded that none of the provisions required recusal under the circumstances of that case. The court found that the judge's son did not actively participate in Equifax's defense, that the participation of the son's law firm did not mean that the son was "acting as a lawyer in the proceeding", and that the son's salary interest as an associate was too remote to fall under the "financial interest" prohibition. Accordingly, the court concluded that the district court was not required to enter a disqualification in the case. The court went on to state, however, that although none of these considerations required disqualification, they were considerations which might move the district judge to examine "whether his impartiality might reasonably be questioned".

In the present case, whether judicial disqualification is required when the judge's lawyer-relative is only associated with the firm appearing as counsel of record depends upon whether the lawyer-relative will profit or lose from the judge's action in the case either financially, or otherwise. In Weinberger, the Court concluded that the salary interest of an associate was too remote to fall under the financial interest prohibition. Accordingly, unless the associate has an interest, other than a salary interest, which would be significantly affected by the outcome of the litigation, a judge would not be required to enter a disqualification when the associate's firm appears as counsel.

Finally, as the Weinberger Court pointed out, regardless of the lawyer-relative's interest in the outcome of the proceeding, where a judge's impartiality might reasonably be questioned, the judge must enter a disqualification or disclose on the record or in writing the basis of the disqualification and allow the parties to determine whether the judge's relationship is immaterial or that the financial interest is insubstantial.

In conclusion, it is the committee's opinion that a judge must enter a disqualification when the judge's lawyer-relative is acting as a lawyer in the proceeding or the lawyer-relative is a partner in the law firm which is appearing as counsel of record. It is also the committee's opinion that the salary interest of an associate is too remote to fall under the financial interest prohibition and therefore, a judge would not be required to enter a disqualification when the lawyer-relative is only associated with a firm appearing as counsel unless the associate has an interest, other than a salary interest, which would be significantly affected by the outcome of the litigation.

Finally, it is this committee's opinion that if the judge's impartiality might reasonably he questioned by virtue of the judge's relationship to the lawyer-relative, the judge must enter a disqualification or disclose on the record or in writing the basis of the disqualification and allow the parties to determine whether the judge's relationship is immaterial or that the financial interest is insubstantial.