Question: A district court judge has asked whether disqualification is necessary in a proceeding involving a court clerk’s spouse appearing as counsel of record.

Answer: Disqualification is required if the court clerk has a close working relationship with the judge. Judges in the district with whom the court clerk does not have a close working relationship may preside over such a proceeding.

Discussion: According to the facts provided by the judge, a judge’s clerk’s spouse is a criminal defense attorney in the district. The clerk apparently does front-office and in-court work for a specific judge. The question posed by the judge is whether the judge for whom the clerk works is required to enter disqualification in cases involving the clerk’s spouse.

Canon 3E requires a judge to enter disqualification when “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.” In Informal Opinion 98-14, the committee construed this provision to require a judge to enter disqualification in cases involving a party who is a member of court employee’s immediate family or household and the employee has a close working relationship with the judge presiding in the case. The committee stated that “this would include the judge’s clerk, bailiff, and reporter; the clerk of the court; and the trial court executive.” Informal Opinion 98-14 involved a party, and not an attorney, but the same principles will generally apply. Canon 3E discusses “a party or a party’s lawyer” in the same sentence, and therefore the same disqualification standard is generally applicable. A judge cannot hear cases involving an employee’s attorney spouse, if the employee has a close working relationship with the judge.

Disqualification in these situations would involve not only the judge, but the clerk. A clerk is generally disqualified from involvement in cases under the same principles that apply to the judge. See e.g. Informal Opinion 97-6 (“court employees must . . . observe all code provisions which require diligence and fidelity.”) However, this does not mean that the remedy in such a situation is for the clerk to be removed from the case so that the judge can preside. If the clerk has a close working relationship with the judge, both are disqualified and another judge must hear the case, assisted by a different clerk. In some situations this may create difficulties for a district. For example, if a trial court executive’s spouse were an attorney, all of the judges in the trial court executive’s district could not hear any cases involving that attorney. However, in situations involving a judge’s in-court or front-office clerk, a case can be assigned to another judge in the district.

In conclusion, the judge for whom the clerk directly works is disqualified from presiding over any cases involving the clerk’s spouse. The requirement of disqualification does not extend to other judges in the district because, according to the facts provided by the requester, the clerk

does not have a close working relationship with the other judges in the district. Other judges in the district may hear cases involving the employee’s spouse. If this situation were to change, such as the employee advancing to a different position and developing a closer working relationship with other judges, the status would need to be re-evaluated.