Wednesday, July 9, 2014

Apparent Conflict

A recent judicial ethics opinion from South Carolina

ADVISORY  COMMITTEE ON STANDARDS OF  JUDICIAL CONDUCT
  OPINION NO. 10 - 2014

RE: Propriety  of an appellate court judge presiding over matters in which the judge’s law  clerk’s parent is counsel of record or another attorney from the parent’s  agency is attorney of record.

FACTS

An  appellate court judge has hired a law clerk whose parent is an attorney for an  agency that frequently has cases before the court. The judge inquires as to  whether the judge can preside over matters in which the clerk’s parent: 1) is  an attorney of record but does not physically appear before the court and does  not sign any filings for a particular case; 2) an attorney from the same office  as the clerk’s parent signs all pleadings and makes a physical appearance but  the clerk’s parent is not an attorney of record.  

CONCLUSION

An appellate court judge may not  preside over cases where the parent of the judge’s clerk is an attorney of  record, appears on the pleadings, or makes any appearance in the case.  Where another attorney from the parent’s  agency is attorney of record, the judge’s law clerk is disqualified from any  involvement in the case, but the judge is not disqualified. 

OPINION

    Canon  3.E.(1)(d) states that a judge should disqualify himself or herself where the  judge’s  impartiality might reasonably be  questioned.  In addition, Canons 1 and 2  of the Code of Judicial Conduct require a judge to avoid the appearance of  impropriety and act in a manner to promote the public’s confidence in the  integrity and impartiality of the judiciary.
  When the parent of a judge’s law  clerk is an attorney of record and appears on the pleadings in the case, or  makes any appearance in the case, the judge is disqualified.  In matters in which another attorney from the  same agency as the parent is the attorney of record and the parent makes no  appearance, the law clerk is disqualified under Rule 506, SCACR, Canon 3E(4),  which states that law clerk shall disqualify himself in matters in which he is  related by blood or marriage to an attorney in a proceeding.  Furthermore, the law clerk should be shielded  from any part of the case by what is commonly known as a “Chinese Wall.”  However, the disqualification of the law  clerk does not extend to the judge.  In  addition, while the judge is not required to disclose that the judge’s law  clerk has a parent who works for the same agency as attorney appearing as  counsel of record, it would be wise to do so. 

(Mike Frisch)

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