The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether it is appropriate for judges to appoint their spouses or other members of their immediate family to serve as their personal secretaries. Rule 2.13(A)(2) and the commentary thereon, which immediately follows, provide as follows:

(A) In making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and

(2) shall avoid nepotism, favoritism, and unnecessary appointments. 

Commentary:

Appointees of judges include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment 31 or an award of compensation does not relieve the judge of the obligation prescribed by Rule 2.13 (A) (1).

This subsection does not spell out the degree of relationship which is required to violate the prohibition against nepotism or favoritism as does the ensuing Section A of Rule 2.11(A) which requires disqualification by a judge on account of relationship within the third degree (See Paragraph (A)(2) of Rule 2.11)

At the same time, Rules 1.1, 1.2(B), 2.4(B), and in the following commentary state the principles by which a judge must be guided, as follows:

Rule 1.1 Complying With the Law

Judges shall respect and comply with the law.

Rule 1.2 Promoting Public Confidence in the Judiciary

(A) Judges shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

Rule 2.4 External Influences on Judicial Conduct

(B) Judges shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.

(C) Judges shall not convey or enable others to convey the impression that any person or organization is in a position to influence the judge. 

Commentary [2] to Rule 1.2 states:

Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges. Judges must avoid all impropriety and appearance of impropriety. Judges must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and they should do so freely and willingly.

In the light of the foregoing, it is the opinion of the Commission that it is not appropriate for judges to appoint their spouses or other members of their immediate family to serve as their personal secretaries.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A), 2.13(A). Cross reference to other relevant opinions for review: #14, #86, #219.]