Opinion 92
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 Recusal, Subdivisions (A)(5)(a) & (c).)
Issue:
In what cases should a judge disqualify himself when prior to assuming the bench he served as a part-time assistant prosecuting attorney in the same county? When serving as a part-time assistant prosecutor, the judge did not office with the prosecuting attorney. He practiced law with a law firm and was assigned a limited number of cases by the prosecutor for which he was responsible. Further, he was not responsible for attending staff meetings or any other general duties normally associated with a member of the prosecutor’s staff.
Discussion:
Supreme Court Rule 2, Canon 3C(1)(b) is as follows:
Previously in Opinion #14, The Commission held that a judge who had previously served as a prosecuting attorney in the same county should disqualify himself in all cases that he either personally handled or were handled by other assistant prosecuting attorneys in his county. Opinion #14 required the judge to disqualify himself in all cases which had previously been in the prosecutor’s office, including defendants who were placed on any form of probation during the period of time the judge served as a prosecutor.
The issue raised here is whether a part-time assistant prosecutor is required to conform to the same disqualification requirements as a former prosecutor or assistant prosecutor. In the Opinion of the Commission on Retirement, Removal and Discipline, a part-time assistant prosecutor does not practice law with the prosecuting attorney but rather is hired by the prosecuting attorney to handle a select number of cases. As a result, the former part-time assistant prosecutor need not disqualify himself is all criminal cases which were handled by the prosecuting attorney’s office prior to his assuming the bench. However, the former part-time assistant prosecutor should disqualify himself in any criminal case in which he was previously involved or in which his impartiality might reasonably be questioned.
(Date: February 22, l983)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 92
Issue:
In what cases should a judge disqualify himself when prior to assuming the bench he served as a part-time assistant prosecuting attorney in the same county? When serving as a part-time assistant prosecutor, the judge did not office with the prosecuting attorney. He practiced law with a law firm and was assigned a limited number of cases by the prosecutor for which he was responsible. Further, he was not responsible for attending staff meetings or any other general duties normally associated with a member of the prosecutor’s staff.
Discussion:
Supreme Court Rule 2, Canon 3C(1)(b) is as follows:
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: ...
(b) He served as a 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.
Commentary
A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed a governmental agency, however, should disqualify himself in a proceeding if his impartiality might reasonably be questioned because of such association.”
Previously in Opinion #14, The Commission held that a judge who had previously served as a prosecuting attorney in the same county should disqualify himself in all cases that he either personally handled or were handled by other assistant prosecuting attorneys in his county. Opinion #14 required the judge to disqualify himself in all cases which had previously been in the prosecutor’s office, including defendants who were placed on any form of probation during the period of time the judge served as a prosecutor.
The issue raised here is whether a part-time assistant prosecutor is required to conform to the same disqualification requirements as a former prosecutor or assistant prosecutor. In the Opinion of the Commission on Retirement, Removal and Discipline, a part-time assistant prosecutor does not practice law with the prosecuting attorney but rather is hired by the prosecuting attorney to handle a select number of cases. As a result, the former part-time assistant prosecutor need not disqualify himself is all criminal cases which were handled by the prosecuting attorney’s office prior to his assuming the bench. However, the former part-time assistant prosecutor should disqualify himself in any criminal case in which he was previously involved or in which his impartiality might reasonably be questioned.
(Date: February 22, l983)