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Opinion 20

The Commission has been asked to express an opinion as to whether a judge is disqualified to handle a case in which one of the lawyers is a member of a firm that includes the judge’s son. The judge has already decided that he will disqualify himself (a) in any case in which his son personally participates, or (b) in any case handled by the law firm on a contingent fee basis; and his inquiry relates only to non-contingent fee cases in which his son will not participate.

Rule 2.11 of the Code of Judicial Conduct provides in part:

(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;

Commentary [5]:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that the judge’s impartiality might “reasonably be questioned” under Rule 2.11 (A), or that the relative is known by the judge to have an interest in the law firm that could be “substantially affected by the outcome of the proceeding” under Rule 2.11 (A) (2) (c) requires the judge’s disqualification.

There is no automatic disqualification under this Canon in the situation covered by the inquiry. However, the Commission believes that under the particular circumstances outlined in the judge’s request, his “impartiality might reasonably be questioned,” within the meaning of Rule 2.11(A). Accordingly, it is the Commission’s opinion that the judge should not preside in any case in which any partner or associate of the law firm that includes his son actively participates.

[Pertinent Code of Judicial Conduct provisions: Rule 1.2(B), 2.11(A). Cross reference to other relevant opinions for review: #33, #71, #72, #84, #93, #128, #140, #168.]

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