Question: The Judicial Council has asked the Ethics Advisory Committee whether a judge is required to enter disqualification in proceedings involving an attorney that is currently, or has previously, represented the judge before the Judicial Conduct Commission.

Answer: Disqualification is required while the Judicial Conduct Commission proceeding is pending, and for a period of six months after the proceeding has ended.

Discussion: The Judicial Council has submitted an opinion request pursuant to Rule 3-109(3)(A)(ii) which permits "an inquiry into the conduct of others" if the inquiry is "to matters of general interest to the judiciary." Because this is a general interest question, a fact situation has not been provided. However, the Committee is aware of certain facts which are relevant to this inquiry. Judges who are subject to Judicial Conduct Commission proceedings are entitled to be represented by counsel. A judge is required to hire private counsel because representation is not provided by the Attorney General's Office or the Administrative Office of the Courts. Because Judicial Conduct Commission proceedings are confidential, the fact that an attorney is representing a judge might not necessarily become apparent, unless the proceedings result in some type of public sanction.

Canon 3E(1)(a) requires a judge to enter disqualification if "the judge has a personal bias or prejudice concerning . . . a party's lawyer." Many courts and ethics advisory committees have discussed this provision in the context of a judge's lawyer who appears before the judge in other proceedings. Most, if not all, of these authorities have determined that a judge must enter disqualification if the representation of the judge is current or ongoing. The findings by these authorities are summed up in this statement in Jeffrey Shaman, et al. Judicial Conduct and Ethics, 3d ed. 2000): "Several questions arise when a judge's attorney appears before the judge as counsel of record. If the attorney in this instance represents the judge in a pending action, the judge's impartiality may be questioned by the other party, even if the resolution of the case appears fair to the public in general." Disqualification is not necessarily based on actual bias or prejudice, but a reasonable perception of such.

The unique aspect of this opinion request, in relation to the findings from authorities in other states, is that the representation involves a Judicial Conduct Commission proceeding. There are two possible factors which may justify an exception to the rule of disqualification. The first factor relates to whether the nature of the representation affects the reasonable perception of impartiality. The second factor relates to the confidential nature of Judicial Conduct Commission proceedings.

There appears to be some split of authority about whether disqualification is required when the representation involves an official matter. As stated in Judicial Conduct and Ethics, "disqualification may not be required if the attorney before the judge has represented him or her on the basis of the judge's official acts." A judge might, for instance, be the subject of an extraordinary writ proceeding in which a litigant challenges a decision of the judge. Some authorities would find that disqualification is not required if the attorney representing the judge in the extraordinary writ proceeding appears before the judge in an unrelated matter. The question arises as to whether Judicial Conduct Commission proceedings are official to the extent that this exception might apply. It could be argued that, even though state attorneys are not provided for representation, Judicial Conduct Commission proceedings are based on an individual's status as a judge, and therefore the proceedings are based on a judge's official acts. The Committee finds such an argument to be unpersuasive.

Judicial Conduct Commission proceedings can be based on matters that occurred while the judge was on the bench, or proceedings can be based on off-the-bench activities, such as civic and political involvement. The proceedings can be based on conduct that does not involve official acts or activities. A judge has a much more personal stake in a Judicial Conduct Commission proceeding than a proceeding in which a challenge is being made to a judge's ruling. Because of the more personal nature of these types of proceedings, the Committee finds that there is no exception based on the nature of the representation.

The nature of the proceedings does create, however, an issue that has not been addressed by other authorities. Because Judicial Conduct Commission proceedings are confidential, the fact that a particular attorney is representing a judge is not public information and may not become known. Because disqualification is based on a perception of partiality the confidential status of the representation could lead to a conclusion that there is no public information upon which to justifiably base a reasonable perception. However, the Committee finds that this argument would also not be persuasive. The perception of partiality is based on whether a reasonable person, knowing all of the facts known to the judge, would question the judge's impartiality. The public or private status of the information has never been, and shouldn't be, a consideration. The standard is based on an objective analysis of the relevant facts. Furthermore, even though the Judicial Conduct Commission proceedings are confidential, if the proceedings result in a public sanction, the facts of the case, including the fact of representation, would become public when the case is filed with the Utah Supreme Court. It would not be appropriate to only require disqualification if the proceedings become public, because that would not become apparent until well into the representation. The Committee therefore determines that a judge must enter disqualification in any proceedings involving an attorney who is currently representing the judge in a Judicial Conduct Commission proceeding.⁽¹⁾

The question of whether disqualification is required after the representation has ended has also created disparate opinions. Some authorities have determined that disqualification is no longer required after the representation has ended, while other authorities have determined that disqualification is necessary for a period of time after the representation has ended.⁽²⁾ In reviewing these authorities it is apparent to the Committee that those decisions which state that disqualification is not necessary after the representation has ended typically result from facts involving law suits in the judge's official capacity. Determinations in which disqualification is necessary for a period of time typically involve representation of the judge in a personal matter. Because the Committee has determined that Judicial Conduct Commission proceedings have personal aspects, the Committee feels that it would be appropriate for a judge to continue to enter disqualification for a period after the representation has ended.

The reason for requiring disqualification for an additional period is that a person could reasonably question a judge's impartiality while the case is still fresh in memory. There is no standard or basis upon which to calculate a reasonable time. The period of time should simply be sufficient to allow any reasonable inferences of partiality to subside. While it might be tempting to create different time lines based on the many different outcomes that can result from a Judicial Conduct Commission proceeding (keeping in mind the public or private nature of the result), it is more predictable and workable for a single time line to be established. The Committee believes that six months is a reasonable time. A judge must therefore enter disqualification in proceedings involving an attorney who represents a judge before the Judicial Conduct Commission and the requirement of disqualification continues for six months after the representation has ended.

Finally, although not specifically asked, the question arises as to whether the requirement of disqualification extends to proceedings involving other members of the judge's attorney's law firm. In Informal Opinion 99-9, we determined that disqualification is required in proceedings involving a prosecuting attorney who is a member of the law firm employing the judge's attorney. We stated that this type of disqualification can be remitted by the parties and the requirement of disqualification ends when the representation ends. The six month period applicable to proceedings involving the judge's attorney does not extend to other members of the attorney's firm.

1. The Committee notes that this type of disqualification can be remitted by the parties. However, the basis for disqualification must be disclosed to the parties. Whether a judge must disclose the nature of the representation, or may simply disclose the fact of representation has not been asked and we will reserve that question for another opinion.

2. These authorities note, however, that disqualification would still be required if the judge maintains a close, personal relationship with the attorney.