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Opinion 168

An opinion is requested with respect to the following questions:


1. May a Chief Magistrate hear civil suits filed by a loan company managed by her husband and having her daughter as his secretary?

2. May this same Chief Magistrate hear civil suits filed by other loan companies that are in competition with the company managed by her husband?

3. May the Associate Magistrates, who are hired by the Chief Magistrate, hear the cases outlined above?

Rule 2.11(A) of the Code of Judicial Conduct provides in part as follows:

(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which:…

(2) The judge is within the third degree of relationship to any of the following listed persons, or the judge’s spouse, domestic partner, intimate partner, or any other member of a judge’s family residing in the judge’s household is within the third degree of relationship to any of the following persons: (a) a party to the proceeding, or an officer, director, or trustee of a party;….(c) a person known by the judge to have a more than de minimis interest that could be substantially affected by the outcome of the proceeding; or (d) a person who to the judge’s knowledge is likely to be a material witness in the proceeding.  

Measured by these standards, question 1 must be answered in the negative because the husband-manager appears to be an officer of a party; is clearly likely to be a material witness in the proceeding; and is likely to have an interest that could be substantially affected by the outcome of the proceeding.

With respect to question 2, the stated relationship would not appear to constitute per se grounds for disqualification. It should be stated, however, that even though the existence of this relationship is not per se grounds for disqualification, it does not necessarily follow that disqualification may not be required under particular circumstances which exist in a particular situation. Both personal bias and the appearance thereof are, in the final analysis, highly subjective, and great care should be exercised by a judge to comply, under the existing circumstances, with the admonition of Canon 1 that “Judges should avoid impropriety and the appearance of impropriety in all their activities.” Accordingly, unless some circumstances exist by reason of which the judge’s impartiality might reasonably be questioned, there is no reason why she should not preside in civil suits filed by other competing loan companies, and question 2 is answered in the affirmative.

However, if the Judge entertains doubt as to her impartiality, or, if under the circumstances, her impartiality might reasonably be questioned by others, it would be her duty to recuse herself.

With respect to question 3, there appears to be no reason why Associate Magistrates, although hired by the Chief Magistrate, may not hear the cases outlined in the preceding questions; provided, however, that such Assistant Magistrates entertain no doubt as to their impartiality.

As a practical matter, the Commission calls attention to Rule 2.11(C) concerning “Remittal of Disqualification” and suggests this procedure might be a practical way to resolve the issues posed.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A), 2.11(C). Cross reference to other relevant opinions for review: #20, #33, #71, #72, #84, #93, #128, #140, #182, #188.]

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