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Friday, July 04, 2025

Opinion 22

(This Opinion discusses a prior version of the Canons of Judicial Conduct:  the most comparable current rule is:  See Rule 2-2.11 Recusal, Subdivision (A)(5).)

COMMISSION ON THE RETIREMENT, REMOVAL AND DISCIPLINE

OPINION 22

Issue:

Should a Magistrate Judge disqualify himself in probate and guardianship matters where he or his former law partner has been involved as a private practitioner?

Discussion:

The appropriate Supreme Court Rule is Canon 3 (C)(1)(b) which states:

“C.    Disqualification.

(1)    A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

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(b)    he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;…”.

Probate and guardianship proceedings are often a matter of routine approvals and accountings.  However, it is possible that these routine approvals and accountings are controversial or might bloom at a subsequent time into a matter of controversy.  Therefore, it is the opinion of this Commission that even routine probate and guardianship matters are “matters in controversy” as used in Canon 3 (C)(1)(b) and as such they require the Magistrate Judge to disqualify himself.

(Undated)