State of Washington
Ethics Advisory Committee
Opinion 18-02
Question:
Is a judge who formerly worked as a public defender in a private, nonprofit organization for sixteen years, but who left the organization six years ago, required to disqualify himself or herself from all cases the organization handled during the sixteen year period because the judge was “associated” with the organization? If the judge is not required to disqualify himself or herself, must the judge disclose the former association?
Answer
CJC 2.11(A)(6)(a) provides that a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to when the judge “served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer or a material witness in the matter during such association.”
This provision does not require disqualification or blanket disclosure only because of a previous association with an organization or lawyer. This provision requires the judge to consider disqualification when the judge’s impartiality might be reasonably questioned because of the judge’s association with a lawyer who participated substantially as a lawyer in the matter in controversy before the judge or the lawyer was a material witness in the matter in controversy before the judge.
The committee has addressed the issues of disqualification and disclosure related to an association with other lawyers in multiple opinions including 90-14, 91-01, 91-07, 95-22, 08-02, and 17-03. These opinions have collectively advised that the single fact that the judicial officer was at one time employed by a particular office, whether it be the prosecutor’s office, public defender’s office, or law firm, does not require a blanket disqualification or disclosure in every case.
Based on the facts presented, and absent any circumstances that would cause the judge’s impartiality to reasonably be questioned (e.g., an association with an attorney who participated substantially as a lawyer or as material witness in the matter in controversy), the judge is not required to disqualify from a case that is currently represented by the judge’s former office or disclose the judge’s previous employment by the office, which ended six years ago.1
1 To the extent disqualification may be proper due to other factors not presented, note that CJC 2.11(C) provides that a judge may instead of withdrawing from the proceedings, disclose on the record the basis of the disqualification. However, this provision only applies to disqualifications under CJC 2.11(A)(2) or CJC 2.11(A)(3), not CJC 2.11(A)(6). Regardless, Comment 3 accompanying CJC 2.11 recognizes that "[t]he rule of necessity may override the rule of disqualification...[i]n matters that require immediate action." CJC 2.11 Comment [3]. In such cases, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable." CJC 2.11 Comment [3]. Also, Comment 5 states that "[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].
Opinion 18-02
03/30/2018 |
