State of Washington

Ethics Advisory Committee

Question:

Should a judicial officer recuse on cases on which a former law partner appears when the judge had no involvement with the client or the matter, has no ongoing financial relationship with the firm, and left the firm more than a year before?  Does the fact that one of the judge's parents still works at the former law firm in a non-attorney role as office manager require recusal?  If recusal is not required, must the judge disclose these circumstances and if so, for how long?

Answer

Neither circumstance presented here (a former law partner appearing before the judge or having a parent working in the judge's former law firm) requires recusal, individually or cumulatively. The judge must disclose the previous professional relationship with the law partner and, during the parent's employment with the firm, the fact that the judge's parent is also employed.

Judges are required to hear and decide matters assigned, except when disqualification is required by Rule 2.11 or other law. CJC 2.7. See CJC 2.11 Comment [1] (“disqualification” and “recusal” are interchangeable). A judge is required to recuse in a proceeding in which the judge's impartiality might reasonably be questioned. CJC 2.11(A). Washington has no per se disqualification or disclosure rule for a judge who hears matters on which an attorney from the judge's former law firm appears. See Opinions 90-14 and 91-05. Requiring recusal because a judge had a prior professional relationship with an attorney that appears before the judge on a matter would be onerous and is unnecessary. Instead, it is essential to look at whether the specific relationship between the attorney and the judge, or the law firm and the judge, presents issues that require the judge to recuse or disclose.

The committee has previously advised that disclosure is required when any known past association would lead a reasonable person to infer that the judge is partial or there is a potential for a conflict of interest, or if there are other circumstances that would warrant disclosure. For example, judicial officers must disclose the past association when the attorney appearing in court, or who has signed the pleadings, worked directly with that judicial officer prior to joining the bench. Opinion 90-14.

Neither the canons nor rules provide clear guidance on how long a judge should disclose a previous law firm relationship or what a reasonable amount of time is, and the committee declines to set a specific time requirement. However, a determination whether sufficient time has passed to avoid the appearance of impropriety should include the following factors:

• The length of the judge's association with the attorney or firm;
• The nature, frequency, intensity, and duration of the prior association with the firm;
• The amount of time since the association ended;
• The duration and closeness of personal relationships between the judge and former partners and associates;
• Whether a financial relationship continues to exist with the firm and the nature of that relationship; and
• The burden disqualification might place on other judges or the administration of the court.

In this case, because the judge practiced with the attorney appearing before the judge a year and a half ago, disclosure of the previous law firm relationship is necessary.

In addition to the judge's relationship to the former law firm, the judge has a parent who continues to be employed by the former law firm. A judge is not disqualified merely because the attorney appearing before the judge is from a law firm with which the judge's relative is affiliated. CJC 2.11 Comment [4]. However, a judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. CJC 2.11 Comment [5]. Given the circumstances presented, the judge's parent's ongoing employment with the former law firm should be disclosed for as long as the relative is employed by the firm.

Opinion 17-03

09/26/2017