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Opinion 72

The Commission has been asked for an opinion as to whether a judge should recuse himself from hearing a case where a party is represented by an attorney from an office of The Atlanta Legal Aid Society by reason of the fact that his wife is an attorney with The Legal Aid Society. Rule 2.11(A) of the Code of Judicial Conduct provides in part as follows:


(A) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: 

(b) a lawyer in the proceeding;

…  

(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:

. . .

(6) The judge served as a lawyer in the matter of controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning it, or the judge has been a witness or party in the matter of controversy.

Commentary [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 government agency, however, should disqualify themselves in a proceeding if their impartiality might reasonably be questioned because of such association.

There is no automatic disqualification under this Canon in the situation outlined in the inquiry. Accordingly, unless other circumstances exist in a particular case, by reason of which his “impartiality might reasonably be questioned,” there is no reason he should not preside solely because his wife is an attorney for Legal Aid.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 2.11(A). Cross reference to other relevant opinions for review: #20, #33, #54, #71, #84, #93, #128, #140, #168.]

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