The Commission continues to receive frequent inquiries concerning the propriety of newly appointed or elected judges who formerly served as District Attorneys presiding in cases involving matters which were of record in the District Attorney’s office prior to the judge’s appointment or election.

By reason of these facts and in an effort to clarify the position of the Commission respecting this issue, this advisory opinion is promulgated sua sponte.

As noted in Opinion No. 219, this issue is controlled by the language of Rule 2.11 governing the disqualification of judges. The second per se ground for disqualification enumerated in this Canon requires automatic disqualification in instances where:

(A)(6) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. . . .

However, the Commentary to this section further provides:

[6]  A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Rule 2.11(A)(6); judges formerly employed by a governmental agency, however, should disqualify themselves in a proceeding if their impartiality might reasonably be questioned because of such association.

It is thus clear that so long as the newly selected judge did not personally serve as a lawyer in the matter in controversy or gain knowledge of disputed evidentiary facts concerning the proceeding, his or her impartiality might not reasonably be questioned and automatic disqualification is not required. However, Rule 2.11(A)(1) requires disqualification in which any proceeding wherein the judge has a personal bias concerning a party and, if such bias exists, the judge should not hesitate to disqualify.

In addition, numerous prior opinions of this Commission require disqualification in any proceeding in which the judge’s impartiality might reasonably be questioned, and the above quoted Commentary specifically includes prior association with a governmental agency as a basis for questioning impartiality.

In sum, former District Attorneys may appropriately hear cases so long as they comply with the requirements noted above, but great care should be exercised to comply with the longstanding admonition of Canon 2 to avoid the appearance of impropriety in all activities.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11. Cross reference to other relevant opinions for review: #154, #170, #181, #217, #219.]