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Opinion 182

A sitting Superior Court Judge requests an Advisory Opinion with respect to the following questions:

l. Is a Judge of the Superior Court disqualified from hearing criminal cases presented by the District Attorney in her circuit if the judge’s spouse is a private attorney who has a contract with the District Attorneys’ office to handle civil cases involving child support recovery actions?

2. Is a Judge of the State Court disqualified from assisting the Superior Court in criminal cases if the State Court Judge’s sibling is an Assistant District Attorney in that circuit?

The idea of complete impartiality pervades the entire Code of Judicial Conduct.  Rule 2.11(A) requires that judges disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including, but not limited to, certain enumerated instances. Both personal bias and the appearance thereof are highly subjective, and great care should be exercised by a judge to comply with the admonition of Canon 1 that “judges should avoid impropriety and the appearance of impropriety in all their activities.”

Accordingly, unless other circumstances exist, and expressly provided that both judges follow the mandate of Rule 2.11(A)(2)(b) by disqualifying in all cases in which there is a prohibited relationship, both of the questions posed must be answered in the negative.

The better practice is a complete disclosure on the record in all cases thereby giving any party an informed opportunity to object as otherwise provided by law.

The Commission calls attention to the provisions of Rule 2.11(C).

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11. Cross reference to other relevant opinions for review: #54, #71, #119, #128, #135, #136, #142, #168, #188, #199.]

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