Friday, August 10, 2012
A new judicial ethics opinion from South Carolina:
ON STANDARDS OF JUDICIAL
OPINION NO. 12 - 2012
RE: The propriety of a Family Court judge presiding over cases in which the judge's secretary's daughter-in-law, or members of her firm, appear as attorneys.
A Family Court Judge employs a secretary/assistant whose daughter-in-law is an attorney. The daughter-in-law, and other members of her firm, practice exclusively in the area of domestic law, and are likely to appear in the Family Court in the County where the judge presides. The Family Court judge seeks an opinion as to whether the judge can preside in matters in which the secretary's daughter-in-law (or other member of her firm) appears as an attorney and what
disclosures, if any, are required.
A Family Court Judge may preside over cases in which the daughter-in-law of the judge's secretary (or a member of the daughter-in-law's firm) appear as attorneys for a party.
According to Canon 3E of the Code of Judicial Conduct, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: . . . (d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding [or], (iii) is known by the judge to have a more than minimis interest that could be substantially affected by the proceeding.” Rule 501, SCACR. The Commentary to that section notes that "[t]he fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge."
Here, none of the judge's relatives will appear as an attorney in a proceeding. In other words, the situation here does not involve the appearance of "the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 4E. Thus, the judge is not disqualified from presiding over matters in which the secretary's daughter-in-law or other members of her firm appear. However, according to the Commentary of Canon 4E., "[a] judge should disclose on the record information that the judge believes that the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."