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Opinion 112

An Advisory Opinion has been requested as to the propriety of a Chief Magistrate appointing as a magistrate a lawyer who is the spouse of an Assistant District Attorney in the judicial circuit.

It is stated that representatives of the District Attorney rarely attend preliminary hearings; that the spouse of the proposed candidate has never appeared in the court in question, and that the District Attorney has agreed that she will not have any contact with this court in the future and will not work on any cases over which her husband has undertaken any judicial act.

The fact that a proposed Magistrate is the spouse of an Assistant District Attorney does not per se render his appointment improper unless he is by reason of the relationship in fact biased in favor of the prosecution, or unless, under all of the circumstances, the existence of the relationship creates such an appearance of partiality as to constitute a violation of Canon 2 which provides as follows:

Canon 1 states Judges “shall avoid impropriety and the appearance of impropriety in all their activities.”

Insofar as the question incorporates assurances that the Assistant District Attorney will not in the future handle cases in the court presided over by his spouse or have any future contact with said court, it should be remembered that, in any such event, the proposed Magistrate would be required to disqualify himself under the terms of Rule 2.11(A)(2)(b), and this requirement might, to some extent, impair his usefulness.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11. Cross reference to other relevant opinions for review: #20, #33, #71, #72, #93, #128, #140, #168.]

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