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Opinion 188

An opinion is requested on whether a sitting Superior Court Judge should disqualify in any case in which the divorced husband of the judge’s niece, or any member of this attorney’s law firm, appears as counsel given the judge’s kinship to the two children born of the marriage and the fact that joint custody has been awarded to the parents with the attorney/husband having ultimate decision making authority in all matters which cannot be agreed upon.

This issue is controlled by 2.11(A)(2)(b), which provides:

(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:…

(b) a lawyer in the proceeding; 


Measured by this standard, the judge has correctly recused in past cases when the then husband of this niece appeared as counsel. However, since the marital relationship has now been dissolved by a final decree of divorce, there would appear to be no requirement that such practice automatically continue in the situation described in the inquiry.

In addition, as noted in an American Judicature Society publication by Professor Leslie W. Abramson entitled “Judicial Disqualification Under Canon 3(C) of the Code of Judicial Conduct”:

… As with other provisions of [Rule 2.11(A)], the primary purpose of subsection [(A)(2)(b)] is to ensure that judges by their conduct maintain public confidence in the courts by avoiding situations which cast doubt on their independence and impartiality. Specifically, this subsection seeks to avoid situations when clients believe that special favor and consideration can be obtained in a case through retention of a judge’s relative as attorney . . . .

No client is likely to believe that “special favor and consideration” can be obtained by retaining the divorced husband of a judge’s niece, and thus, no automatic disqualification appears to be required by either the express language of the Canon or the implicit purpose sought to be achieved.

Obviously, disqualification could still be sought under the general reasonableness standard of Rule 2.5 but such requests would more appropriately direct themselves to the judge on a case by case basis.

Attention is also invited to the Remittal of Disqualification procedures outlined in Rule 2.11(C).

[Pertinent Code of Judicial Conduct provisions: Rule 2.5, Rule 2.11. Cross reference to other relevant opinions for review: #84, #116, #128, #140, #153, #182.]

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