A district court judge has asked the Ethics Advisory Committee whether disqualification is necessary in a proceeding involving the county which previously employed the judge as a county attorney.

According to the opinion request, the judge was a deputy county attorney for nine months of 1990 and the county attorney during 1991 and 1992. The judge did not reside in the county at the time of the employment. The judge did not work on any issues associated with the pending litigation involving the county.

Disqualification issues are governed by Canon 3E. The Canon requires disqualification:

In a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: the judge has a personal bias or prejudice concerning a party . . . [or] the judge had served as a 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 the material witness concerning it.

Although the Committee has never directly addressed this type of situation, Utah case law and ethics advisory opinions have discussed issues related to a judge’s former employment. In American Rural Cellular, Inc. v. Systems Communication Corp., 939 P.2d 185 (Utah App. 1997), the Court of Appeals discussed disqualification in a proceeding in which one party was represented by the judge's former law firm. The party was also represented by the firm when the judge was associated with the firm. However, the subject matter of the litigation had a limited connection to the former representation. Id. at 196. The Court of Appeals found that disqualification was not required under Canon 3E because the connection between the pending litigation and the former representation was very limited. Id.

The appearance of the judge’s former employer or client does not automatically require disqualification. In reviewing our previous opinions, it is evident that disqualification is only required if the pending matter involves issues which the judge worked on while with the employer or party; or a previous partner or fellow employee was working on the matter while the judge was associated with the partner or employee; or if the judge has maintained a close relationship with the party or the attorney, such that the judge's impartiality could be reasonably questioned by an impartial observer.

According to the facts provided by the requester, the Committee believes that disqualification is not required in this instance. The issues related to the litigation arose after the judge left the employment of the county attorney’s office so that the judge does not have any personal knowledge of the issues and was not associated with anyone who had personal knowledge of the issues. It also does not appear as if the judge has maintained a close relationship with the attorneys of the employer such that disqualification would be required.

In making this conclusion, the Committee recognizes State v. Neeley, 748 P.2d 1091 (Utah 1988). In Neeley the Supreme Court stated that a judge was not required to enter disqualification in a case involving a criminal defendant the judge had represented in an unrelated matter. However, the Court stated that disqualification may be recommended. It. at 1094. In situations involving individuals or private entities, disqualification may be the better course. However, when the former client or employer is a governmental entity, disqualification is not necessarily the better course. The county is a frequent litigant. Disqualification in every proceeding involving the county would be disruptive. Disqualification is therefore only required under the circumstances already described.