Opinion 116

An Advisory Opinion has been requested by a Chief Magistrate as to whether his brother, an attorney, can represent criminal defendants charged in warrants issued by him, before an Associate Magistrate who is his secretary and was appointed Associate Magistrate by him.

It is stated that the Chief Magistrate and his brother share an office, but have no formal or informal partnership; that each pays his part of the rent and office expenses; that no legal fees are shared and that they have separate legal stationery, letterheads, billheads, telephone lines and telephone listings, except they are listed in the telephone directory under a common name with the phone number of the Chief Magistrate, but they have offered to terminate this listing.

From the facts set out above, it is clear that, while there was no formal partnership, the relationship created an apparent community of interest and at least the appearance that they were in a position to influence the Associate Magistrate.

Canon 1 provides that Judges “…shall avoid impropriety and the appearance of impropriety in all of their activities” and Rule 2.4(C) provides in part that “Judges shall not convey or enable others to convey the impression that any person or organization is in a position to influence the judge.”

For that reason, even though it would be no violation of the Canons of Judicial Conduct for his brother to represent such defendants because, as an attorney, his brother is not subject to these Canons, the Associate Magistrate, as well as the Chief Magistrate, would be disqualified to preside or hold hearings in matters where the defendant was represented by his brother by virtue of Rule 2.11(A)(2)(c).

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.8, 3.10. Cross reference to other relevant opinions for review: #59, #87, #224.]

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