Opinion 66
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 Recusal, Subdivisions (A)(1), (C), and Comment 3.)
Issue:
Should an appellate judge disqualify himself in any case where his daughter appears as an Assistant Attorney General? Secondly, should the judge disqualify himself in every case involving the State of Missouri or the Attorney General’s office when his daughter is employed as an attorney for the Attorney General?
Discussion:
Supreme Court Rule 2, Canon 3(C)(1) states:
The Assistant Attorney General is not a party to a lawsuit involving the Attorney General’s office or the State of Missouri. She is, rather, the attorney representing a party. The deciding language of Canon 3(C)(1) of whether the judge need disqualify himself is, therefore, whether his impartiality might reasonably might reasonably be questioned. Certainly, if the judge has discussed the case with his daughter he must disqualify himself. However, Canon 3(C)(1) does not require a disqualification in every case where a relative of a judge appears as an attorney representing a party in his court.
Supreme Court Rule 2, Canon 3(C)(4) states:
Disclosure is always required when the judge’s daughter appears in his Court. If, however, after disclosure all parties and their attorneys agree and the judge does not believe that “him impartiality might reasonably be questioned” the judge may continue to hear the case.
As to whether the judge need disqualify himself in every case involving the State of Missouri or the Attorney General’s office, the commentary to Supreme Court Rule 2, Canon 3 (C)(1(d)(i) is helpful. It states:
Accordingly, it is the Commission’s opinion that the judge need not disqualify himself in every case involving the State of Missouri and the Attorney General’s office unless he believed that “his impartiality might reasonably be questioned.”
(Dated: August 17, 1981)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 66
Issue:
Should an appellate judge disqualify himself in any case where his daughter appears as an Assistant Attorney General? Secondly, should the judge disqualify himself in every case involving the State of Missouri or the Attorney General’s office when his daughter is employed as an attorney for the Attorney General?
Discussion:
Supreme Court Rule 2, Canon 3(C)(1) states:
A judge should disqualify himself in a proceeding in which his partiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding: ....
The Assistant Attorney General is not a party to a lawsuit involving the Attorney General’s office or the State of Missouri. She is, rather, the attorney representing a party. The deciding language of Canon 3(C)(1) of whether the judge need disqualify himself is, therefore, whether his impartiality might reasonably might reasonably be questioned. Certainly, if the judge has discussed the case with his daughter he must disqualify himself. However, Canon 3(C)(1) does not require a disqualification in every case where a relative of a judge appears as an attorney representing a party in his court.
Supreme Court Rule 2, Canon 3(C)(4) states:
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 of his attorney requests that the judge disqualify himself by reason of such relationship the judge shall do so.
Disclosure is always required when the judge’s daughter appears in his Court. If, however, after disclosure all parties and their attorneys agree and the judge does not believe that “him impartiality might reasonably be questioned” the judge may continue to hear the case.
As to whether the judge need disqualify himself in every case involving the State of Missouri or the Attorney General’s office, the commentary to Supreme Court Rule 2, Canon 3 (C)(1(d)(i) is helpful. It states:
The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that ‘his impartiality might reasonably be questioned’ under Canon 3C(1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be ‘substantially affected by the outcome of the proceeding’ under Canon 3C(1)(d)(iii) may require his disqualification.
Accordingly, it is the Commission’s opinion that the judge need not disqualify himself in every case involving the State of Missouri and the Attorney General’s office unless he believed that “his impartiality might reasonably be questioned.”
(Dated: August 17, 1981)