A judge has asked the Ethics Advisory Committee for its opinion as to whether a judge must enter a disqualification in cases in which a guardian ad litem who had previously shared office space with the judge at a time when both were practicing lawyers appears before the judge.

At one time in their careers as practicing lawyers, both the judge and the guardian were engaged in separate private law practices, although they were tenants in the same shared office arrangement. During that arrangement, the judge and the guardian used letterhead which could have led others to believe that the arrangement was more formal than mere office sharing. In addition, for a short period, both were serving as guardians ad litem, though they did not associate on any guardian ad litem cases. Since the time of the judge's appointment nearly two years ago, the guardian has not appeared in the judge's court.

Cannon 3E(1) provides, in part, that a judge shall enter a disqualification in a proceeding in which the judge had practiced law with a lawyer who had served in the matter at the time of their association. Neither the ABA Model Code nor Utah's Code indicate whether an arrangement which consists of lawyers who merely share office space constitutes the practice of law with the other lawyers in the arrangement, but the Committee believes that something more is required. However, because the judge and the guardian used letterhead which may have led others to believe that a more formal relationship existed, the Committee will address the request as though the judge had practiced law with the guardian.

The simple fact that a judge and a lawyer had previously practiced law together does not require the judge to disqualify in every case in which the lawyer now appears before the judge. As stated by Professor Shaman:

disqualification is not required where the judge merely had a prior professional relationship with an attorney presently appearing before the judge. Rather, the      association between the judge and the attorney must have occurred during the attorney's involvement with a case now pending before the judge. A policy      requiring a   judge to disqualify simply because he or she had a prior professional relationship with an attorney would be particularly burdensome on the judiciary.

Jeffrey M. Shaman, Steven Lubet & James A. Alfini, Judicial Conduct And Ethics 5.17 (1990) (emphasis added).

Canon 3E(1) also requires disqualification where a judge has a personal bias or prejudice concerning a party's lawyer. Such a bias may either be in favor of, or in opposition to, the lawyer. The Committee has been informed by the judge that no bias, favorable or unfavorable, exists toward the guardian here.

Finally, the Code requires disqualification in any situation that the judge's impartiality "might reasonably be questioned." 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. Informal Op. 88-3 (citing SCA Servs., Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977)). Where the guardian and the judge conducted independent law practices although sharing office space for a short period of time, where the guardian has not appeared in the judge's court for an extended period of time, and where the guardian will not appear before the judge on a case that the guardian handled while the guardian and the judge shared office space, it is unlikely that a person of ordinary prudence would form a reasonable basis for questioning the judge's impartiality.

The Committee believes that the judge need not disqualify from cases in which the guardian appears other than those cases which the guardian was involved in at the time the guardian and the judge shared office space.