Hearing Cases in County Where Son is Assistant District Attorney
November 16, 2001
CJE Opinion No. 2001-16
You have written to this Committee for advice regarding the propriety of hearing cases in a particular district court within the county to which your son, who has recently become a member of the bar, will be appointed as an assistant district attorney. You have indicated that your “regular assignment” includes sitting for three days in the court in question and that your son would not be assigned to that session nor would he have any supervisory authority over the District Attorney’s staff in that court.
The relevant Canon of Judicial Ethics is 3(C)(1) which provides in pertinent part:
“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where …
(d) …a person within the third degree of relationship …
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding … .”
In CJE Opinion 92-1, this Committee addressed the propriety of a judge hearing cases in district courts in the county where his father was a senior attorney in the office of the District Attorney. In that opinion, the Committee concluded that, as used in Canon 3(C)(1)(d)(ii), the disqualifying phrase “acting as a lawyer in the proceeding” prohibited the son from presiding over cases in which the father had had any substantial involvement at any stage of its preparation. Likewise, in CJE Opinion 96-3, the Committee addressed the propriety of a district court judge presiding over criminal cases in a county where his/her spouse served as the First Assistant District Attorney. The scope of the District Attorney’s spouse’s responsibilities, including case assignment and attorney supervision, required the judge’s recusal even though the District Attorney spouse did not actually try cases before the judge.
In reaching its conclusion in Opinion 92-1, the Committee relied to some extent on, but ultimately distinguished, the advice rendered in Federal Advisory Committee on Judicial Activities Advisory Opinion No. 38 (1974). That opinion concerned circumstances under which a federal judge was required to recuse himself from hearing criminal cases prosecuted by the Office of the United States Attorney where his son worked as an Assistant United States Attorney. In its opinion, the Federal Committee concluded that the father’s automatic disqualification from all cases the Office prosecuted was not required because the son intended neither to appear before his father nor to perform any services in any case assigned to the father. Moreover, in the Federal Committee’s view, the fact that the Federal Court worked on an individual assignment calendar made it possible to “avoid the appearance that the judge’s son may have inadvertently worked on briefs or investigations in cases heard before his father.” The Federal Committee’s advice was similar to the advice given by the District of Columbia Advisory Committee in D.C. Advisory Opinion 6 (1995) involving a situation where one spouse was an Assistant United States Attorney and the other spouse was a judge before whom the same United States’ Attorney’s Office prosecuted cases.
The opinions just described show that conflict with the relevant Canons may arise not only from a family member’s appearance before the judge or his/her supervision of lawyers who appear before the judge, but also from the family member’s substantial involvement in any stage of the proceeding that produces the trial over which the judge is presiding. The fact that your son will not appear before you eliminates the possibility of his appearance as a potential avenue for violation of the Canons. Given the fact that your son was admitted to practice in June of this year, and will be a new employee in the District Attorney’s office in question, it is unlikely that he will have any supervisory responsibilities in the near future regarding cases that come before you. In addition, however, you should not sit on any case involving the District Attorney’s Office unless it is clear that your son has not had any substantial involvement with that case at any stage of its preparation.
As long as the conditions described in the previous paragraph are met, the mere fact of your son’s employment in the prosecutor’s office does not require recusal from criminal proceedings in which other attorneys from the same office appear. However, should your son ever participate substantially in any stage of any cases that come before you or should he assume an administrative or supervisory role in his office, you should revisit the admonitions of CJE Opinions 92-1 and 96-3.
As the Committee concludes that there is no per se requirement for recusal, the question of whether you should nevertheless disqualify yourself from a case or a particular series of cases is left to your discretion. As regards the question of the exercise of judicial discretion, the Supreme Judicial Court has stated, if “[f]aced … with a question of his capacity to rule fairly, the judge [should] … consult first his own emotions and conscience. If he passe[s] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] ‘a proceeding in which his impartiality might reasonably be questioned.'” Lena v. Commonwealth, 369 Mass. 571, 575, (1976), quoting Canon 3(C)(1). While the Committee does not believe that the Canons generally require disqualification under the circumstances you have related in your request, you should keep alert for particular circumstances that might raise problems under the second prong of the Lena standard.