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Opinion 49

A judge, prior to his appointment to the bench, was engaged in the practice of law in a partnership composed of himself and his father. Thereafter, upon being appointed to the bench, the judge’s father associated another lawyer with him in the practice of law, and while this arrangement existed the judge’s father died. It was generally understood between the judge and his father’s associate that the associate would eventually buy out his interest in the prior partnership between the judge and his father. The judge’s father left to the judge all of his interest in relation to his law office.

The judge and the associate are now negotiating the latter’s purchase of all of the tangible and intangible assets of the law office and it is anticipated that the associate will pay part of the consideration in cash and that the judge will take a note for the balance to be paid over a period of several years.

The judge inquires of the Commission whether he would be disqualified to hear cases in which the associate was counsel so long as the deferred indebtedness for the purchase price of the law office assets had not been fully paid.

In its previous Opinion No. 16 dated September 13, 1977, the Commission dealt with the question of whether it would be permissible for an agreement between a judge and his former law partner for the sale of the judge’s interest in the assets of the law firm to provide for the payment of the agreed on price to be made over a period of time rather than in cash. This question was considered in relation to the provisions of Rule 3.11(B) which provides:

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.

The Commission stated in its Opinion:

The sale of a lawyer’s interest in the assets of a partnership is a necessary incident to his ceasing practice to become a judge. It would be unfair, and unrealistic in many instances to expect the remaining partner(s), particularly in the case of a small firm, to pay cash for the interest of the withdrawing partner. There should be minimal contact between the parties under this arrangement and there is less chance of future controversy here than in the case of a rental contract also dealt with in such opinion. Assuming the payment of a fair amount and a term that is as short as is reasonably possible under the circumstances, the Commission does not believe that a deferred payment arrangement is objectionable.

The question now presented involves the application of provisions of Rule 2.11(A) which provides:

Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned….

The Commission is of the opinion that standing alone the fact of the existence of an indebtedness due by the lawyer arising out of the isolated transaction of his purchase of the assets of the law firm would not mandate that the judge disqualify himself in cases in which the lawyer was acting as counsel for one of the parties. However, even though the circumstances as described herein would not objectively and normally require a conclusion that the judge’s impartiality might reasonably be questioned, it is possible to conceive of a combination of circumstances, involving a substantial indebtedness, a lawyer-debtor in financial straits, and litigation of such nature that the lawyer if his client prevails might expect to receive a very large fee, which might cause the outcome of the litigation to have a rather direct effect on the timely payment of the indebtedness. It would, of course, be in order for the judge to recuse himself if in his own mind he entertained any reasonable doubt as to his ability to preside impartially, or if he believed that under the circumstances involved his impartiality might reasonably be questioned by others.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(C), 2.11(A), 3.11(B), 3.11(D). Cross reference to other relevant opinions for review: #12, #16, #35, #130, #221.]

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