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Opinion 42

The Judicial Qualifications Commission has received an inquiry from a judge, a director in and shareholder of a bank in his circuit, as to whether he should disqualify himself in a domestic relations case where the plaintiff is a secured or unsecured creditor of the bank and his wife is asking for alimony, child support and attorney’s fees.

We are also asked to determine whether the same or a different conclusion would be reached if the case was some other type of civil action.

Finally, inquiry is made as to whether disqualification would exist when one of the parties in a civil case was not a debtor but was otherwise a customer of the bank.

It is clear that should the bank be a party to a civil action, that the judge, as a Director and shareholder, would be disqualified. Georgia Code Ann. Sec. 24102.

Rule 3.11 of the Georgia Code of Judicial Conduct provides in part as follows:

(B) Judges should refrain from financial and business dealings with lawyers, litigants, and others that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, or exploit their judicial positions.

(C) Subject to the requirement of Rule 3.11 (B), judges may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business, as long as the business is not related to court-directed services.

By way of contrast, the American Bar Association’s Code of Judicial Conduct proposed for adoption in the various states by the proper authorities provides in Rule 3.11 as follows:

(A) A judge may hold and manage investments of the judge and members of the judge’s family.

(B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in:

(1) a business closely held by the judge or members of the judge’s family; or

(2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family.  

The foregoing points up the fact that in adopting the Judicial Code now in force in this state, the Supreme Court rejected the prohibition of a judge serving as “an officer, director, manager, advisor, or employee of any business;” or, to put the matter otherwise, the Judicial Code in effect permits such service.

Obviously, the right to serve in such business capacities in their community places a judge under severer responsibility to search his own conscience concerning whether, because of that job, or any matter related directly or indirectly thereto, he finds that he might be influenced in any manner to decide the case based upon the fact of such service. However, with the bank not a party to the case, we could not consider his service as automatically disqualifying him in a domestic relations or other civil case simply because one of the parties to the litigation was a debtor or customer of the bank.

However, in view of the fact that if a judge “has a personal bias or prejudice concerning a party,” without respect to the cause thereof, a judge should therefore carefully weigh the matter of whether his position might in any degree influence his decision and should as well keep in mind the admonition in the title of Canon 1 that “a judge should avoid impropriety and the appearance of impropriety in all his activities.”

[Pertinent Code of Judicial Conduct provisions: Rules 2.11(A), 3.11. Cross reference to other relevant opinions for review: #11, #32, #40, #61, #76, #148, #160.]

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