Opinion 37
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 Recusal, Subdivisions (A)(2)(b) & (c) and (C).)
Issue:
Does the disclosure required by Rule 2, Canon 3(C)(4) remove the necessity for a judge to disqualify himself where his son is acting as an attorney in the proceeding?
Discussion:
Answering this issue requires a comparison of Canon 3(C)(1)(d)(ii)and 3(C)(4). Canon 3 (C)(1)(d)(ii) states:
Canon 3 (C)(4) states as follows:
The issue becomes whether any attorney acting in a proceeding is to be considered to “have an interest that could be substantially effected by the outcome of the proceeding”. If so, then the provisions of Canon 3 (C)(1)(d)(ii) are in conflict with Canon 3 (C)(4) which merely requires disclosure to all parties that a third degree relationship toThe judge of his spouse exists with an attorney in the proceeding.
The Code of Judicial Conduct was amended in 1975. That amendment added Canon 3 (C)(4) which specifically dealt with an attorney acting in a proceeding in which the judge was within the third degree of relationship to that attorney. The amendment also deleted Canon 3 (C)(1(d)(ii) which stated:
It is the opinion of the Commission, therefore, that prior to the 1975 amendment a judge was required to disqualify himself if a third degree relative was acting as a lawyer in the proceeding. However, this specific language was deleted and replaced with language requiring disclosure and not an automatic disqualification. Therefore, the disclosure as required by Rule 2, Canon 3 (C)(4) does remove the necessity for a judge to disqualify himself where his son is acting as an attorney in the proceeding.
(Undated)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 37
Issue:
Does the disclosure required by Rule 2, Canon 3(C)(4) remove the necessity for a judge to disqualify himself where his son is acting as an attorney in the proceeding?
Discussion:
Answering this issue requires a comparison of Canon 3(C)(1)(d)(ii)and 3(C)(4). Canon 3 (C)(1)(d)(ii) states:
“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
* * *
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
* * *
(ii) is known by the judge to have an interest that could be substantially effected by the outcome of the proceedings.”
Canon 3 (C)(4) states as follows:
“…A judge has a duty to disclose to all parties, or to their attorneys, that any person acting as a lawyer in the proceeding or the spouse of such a person is within the third degree of relationship to the judge or his spouse by blood or marriage. If after such disclosure any party or his attorney requests that the judge disqualify himself by reason of such relationship the judge shall do so.”
The issue becomes whether any attorney acting in a proceeding is to be considered to “have an interest that could be substantially effected by the outcome of the proceeding”. If so, then the provisions of Canon 3 (C)(1)(d)(ii) are in conflict with Canon 3 (C)(4) which merely requires disclosure to all parties that a third degree relationship toThe judge of his spouse exists with an attorney in the proceeding.
The Code of Judicial Conduct was amended in 1975. That amendment added Canon 3 (C)(4) which specifically dealt with an attorney acting in a proceeding in which the judge was within the third degree of relationship to that attorney. The amendment also deleted Canon 3 (C)(1(d)(ii) which stated:
“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
* * *
(d) he or his spouse, or a person within the third degree of relationship to either of them or the spouse of such person:
* * *
(ii) is acting as a lawyer in a proceeding.”
It is the opinion of the Commission, therefore, that prior to the 1975 amendment a judge was required to disqualify himself if a third degree relative was acting as a lawyer in the proceeding. However, this specific language was deleted and replaced with language requiring disclosure and not an automatic disqualification. Therefore, the disclosure as required by Rule 2, Canon 3 (C)(4) does remove the necessity for a judge to disqualify himself where his son is acting as an attorney in the proceeding.
(Undated)