State of Washington

Ethics Advisory Committee

Question

May a judicial officer who is being defended by a deputy prosecuting attorney in a civil matter pending in U.S. District Court continue to preside over trials in the superior court when the prosecuting attorney who is handling the judicial officer’s case appears?

Should the judicial officer disclose the representation at the outset of each case in which the prosecutor’s office appears? Should the judicial officer recuse if any deputy in the civil division is involved?

A civil lawsuit was filed in U.S. District Court against multiple defendants, including the judicial officer in the judicial officer’s official capacity. The underlying matter was a summary judgment decision the judicial officer entered in an employment contract dispute between two private parties. A deputy prosecuting attorney in the civil division has entered an appearance on the judicial officer’s behalf, and will be representing the judicial officer’s interests in federal court.

Answer

CJC Canon 3(C)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. Therefore, the judicial officer, who is being sued because of his or her personal involvement or conduct and not merely because the judicial officer is a member of a particular court, may not preside over cases in which the deputy prosecuting attorney handling the judicial officer’s case participates, during the pendency of the judicial officer’s case. The disqualification, however, does not run to other members of the prosecutor’s office who appear on either civil or criminal cases unless there are independent circumstances which merit disqualification.

It is not necessary for the judge to disclose the fact that the judicial officer is being represented by a member of the prosecutor’s staff in every case in which a prosecutor appears in the judicial officer’s court unless there is another reason for the disclosure.

Opinion 95-12

03/10/1995