State of Washington

Ethics Advisory Committee

Question

The Committee has been asked to issue a comprehensive opinion on the potential conflicts of interest that arise when one spouse is an attorney and the other is a judicial officer.

Answer

Since 1984, the Ethics Advisory Committee has issued 11 opinions addressing activities of judicial spouses and one opinion in which the child of the judicial officer was an attorney. These opinions, based upon CJC Canon 2 and Canon 3(C), address specific fact situations they are: Opinions 84-1, 84-3, 86-8, 86-13, 87-9, 88-8, 88-12, 88-15, 89-2, 89-5, 89-12 and 91-6.
CJC Canon 2(A) requires that judges conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) states that judges should not allow their family relationships to influence their judicial conduct or judgment, should not lend the prestige of their office to advance the private interests of others, and should not convey nor permit others to convey the impression that they are in a special position to influence them.
CJC Canon 3(C) states that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: 1) the judge knows that, individually or as a fiduciary, the judge, the judge's spouse, or a minor child residing in the judge's household has a financial interest in the subject matter in controversy or is a party to the proceeding, or that any one of them have any other interest that could be substantially affected by the outcome of the proceeding; 2) the judge, the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person a) is a party to the proceeding, or an officer, director, or trustee of a party; b) is acting as a lawyer in the proceeding; c) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; d) is to the judge's knowledge likely to be a material witness in the proceeding.

For purposes of CJC Canon 3(C)(3), the degree of relationship is calculated according to the civil law system. According to the civil law system, the third degree of relationship test would disqualify the judge if the judge's or the judge's spouse's parent, grandparent, aunt, uncle, sibling, niece, nephew, children and grandchildren or the spouse of those relatives is a party or lawyer in the proceeding, but would not disqualify the judge if a cousin were a party or lawyer in the proceeding.
CJC Canon 3(C) requires judicial officers to disqualify themselves only in those situations where the judicial officer, the judicial officer's spouse or a person within the third degree of relationship to either the judicial officer or spouse a) is a party to the proceeding, or b) has a financial interest in the proceeding, or other interest that could be substantially affected by the outcome of the proceeding, c) is a lawyer in the proceeding, or d) is a material witness in the proceeding.

The judicial officer may have a duty under some other provisions of the Code of Judicial Conduct to disclose the judicial officer's spouse's or child's attorney status and may offer to withdraw from the proceeding. Generally, such a determination should begin with an examination of CJC Canon 2. CJC Canon 2 requires that a judicial officer avoid impropriety and the appearance of impropriety in all of the judicial officer's activities. CJC Canon 2(B) specifically requires that a judicial officer not allow family or other relationships to influence the judicial officer's conduct or judgment. If a judicial officer feels that disclosure is required, it should be done as soon as practical and, if possible, before the judicial officer makes any discretionary rulings. In addition, CJC Canon 3(C)(1)(d) requires that a judicial officer disqualify himself or herself in those cases where the judicial officer's impartiality might reasonably be questioned. Once a judicial officer has withdrawn the judicial officer has fulfilled the requirements of the Code.

This requirement of disclosure, withdrawal or consideration of an offer to withdraw is personal to the judicial officer with the affected attorney/spouse or attorney/child and does not run to other members of the court or panel of the court. There is no requirement that the court reassign the case.

Opinion 91-18

06/24/1991