Question: Can a justice court judge preside in cases in which the prosecuting attorney is in the same law firm as the judge’s personal attorney?

Answer: Yes if the relationship is disclosed in each case, and no party objects.

Discussion: A justice court judge may receive an appointment to sit in another court. The prosecuting attorney for the new court is in the same law firm with the judge’s personal attorney. The law firm consists of seven members. The judge asks if the judge can preside in cases involving the prosecuting attorney.

Canon 3E of the Code of Judicial Conduct addresses cases from which judges are disqualified. The following portions of Canon 3E are relevant to this opinion request:

                       (1) A judge shall enter a disqualification in a proceeding in which the judge’s impartiality might be reasonably questioned, including but not limited to instances                          where:

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

The Committee does not think that the actual bias provision of Canon 3E(1)(a) is implicated by the facts presented in the opinion request. The judge’s personal representation by another member of the prosecuting attorney’s law firm does not indicate any bias concerning the prosecuting attorney. The importance of the Committee’s determination that this situation is not governed by Canon 3E(1)(a) is that disqualification due to actual bias cannot be remitted. Canon 3F.

Disqualification in the circumstances presented by this opinion request is required if "the judge’s impartiality might reasonably be questioned." In other words, disqualification is required in situations giving rise to the appearance of bias as well as actual bias. The test used to determine if an appearance of bias exists 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 Opinion 89-2.

Other states have issued ethics opinions involving similar facts. Most opinions that the Committee examined state that a judge should disclose the existence of the relationship with the law firm and, if any party objects, the judge should recuse. See Alabama Judicial Inquiry Commission Opinion 96-616; Arizona Supreme Court Judicial Ethics Advisory Committee Opinion 92-11; Florida Committee on Standards Governing Conduct of Judges 79-2; Michigan Bar Formal Opinion J-5; Washington Ethics Advisory Committee Opinion 93-14. New York originally adopted a per se rule that prohibits judges from hearing cases presented by lawyers from the same law firm as the judge’s personal attorney. N.Y. State Bar Assoc. Opinion 511 (1979). However, the opinion was modified to no longer require recusal. Instead, the nature of the original representation, the amount of time which has passed, and whether the parties have waived disqualification needs to be considered. N.Y. State Bar Assoc. Opinion 574 (1986). Significantly, the Committee did not find any opinions which did not require at least disclosure of the relationship.

The Committee agrees with the majority of states cited above. Although not always explicitly stated, the gist of these opinions is that presiding in a case involving a member of the law firm of the judge’s attorney creates a situation in which "the judge’s impartiality might reasonably be questioned."¹  Using the "reasonable person" standard articulated in Informal Opinion 89-2, the Committee thinks that the fact that a judge is a client of another member of the prosecuting attorney’s law firm may give the appearance of bias. It may appear that, by choosing to be represented by a member of the prosecuting attorney’s law firm, the judge holds the law firm in particular esteem. In addition, the judge’s relationship with the law firm may be viewed by litigants as evidence of a special relationship between the prosecutor and the judge. Although not determinative in the analysis, the Committee notes that the fact that the attorney appearing is the prosecuting attorney, if anything, exacerbates the appearance problem. The prosecuting attorney is acting as an agent of the government asserting that defendants should be fined or incarcerated.

Because the judge’s impartiality might reasonably be questioned, in all cases in which the prosecuting attorney appears the judge must disclose and enter recusal if the disqualification is not waived by the parties pursuant to Canon 3F. The Committee recognizes that this outcome may be problematic in a justice court for which criminal cases are a significant portion of the caseload. However, the appearance problem still exists.

The judge who requested the opinion asked if the judge was required to retain different private counsel.² As discussed above, the judge is not absolutely prohibited from presiding in cases in which a member of the judge’s personal attorney’s law firm appears. Therefore, the judge would not have to retain different counsel. However, should the judge decide to do so, the Committee will give guidance on the effect of having counsel appearing before the judge who is a member of the law firm of the judge’s former attorney.

The Committee thinks that, as a general rule, once the attorney-client relationship ceases the judge need not disclose the former relationship when a member of the former attorney’s law firm appears. The Committee does not think that a reasonable person would find an appearance of bias. First, no on-going relationship with the law firm exists. Second, the relationship between the judge and the member of the former attorney’s law firm is always more tenuous than between the judge and the judge’s attorney.

¹ The other states’ opinions involved attorneys representing judges in both personal and official matters. The Committee believes that the nature of the representation is immaterial to the analysis of this opinion.

² The opinion request also asked if a different prosecuting attorney should be used. The Committee only addresses judicial conduct. The selection of a prosecuting attorney is the province of the city’s executive branch and not the judiciary.