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Opinion 199

An opinion is requested on the following question: Is there a conflict of interest or is it otherwise improper for the wife of the senior partner of a part-time juvenile court judge to serve as Director of a local Court Appointed Special Advocates program (“CASA”) under the circumstances described in the request? It is represented that neither the Judge nor anyone else affiliated with the Juvenile Court has any association with or authority over the local CASA program, its director or its volunteers, except that the Judge authorizes the assignment of a CASA volunteer to each case. It is further believed that the CASA director would serve only as a coordinator for the program and would not be involved either directly or indirectly in the advocacy program for the children.

Rule 2.11(A) requires that judges disqualify in any proceeding in which their impartiality might reasonably be questioned, including, but not limited to, the per se instances enumerated in subparagraphs (1) to (6). None of these enumerated instances appear to be applicable to the factual situation here presented, and hence, the issue becomes one of a possible appearance of impropriety governed by Canon 1.

The established test for appearance of impropriety, as set forth in the Commentary [3] to Rule 1.2 is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Factual situations presenting a more compelling appearance of impropriety have been considered and rejected by the Commission in numerous previous opinions, including Opinion No. 182 (and those cross-referenced therein). Similarly, in the factual situation here presented, it would appear unlikely that any reasonable person would believe that the judge’s ability to perform the duties of office is in any way impaired and, consequently, automatic disqualification is not required.

However, because both personal bias and the appearance thereof are highly subjective, great care must be exercised by the judge to assure full compliance with Canon 1, and if there is any doubt, recusal is mandated.

As thus viewed, the question presented is answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 1.2, Rule 2.11. Cross reference to other relevant opinions for review: #136, #142, #168, #182, #188.]

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