State of Washington

Ethics Advisory Committee

Question

Should a judge recuse in a case in which the lawyer representing the judge in a private matter appears before the judge? If the judge is the recipient of legal services from an attorney sponsored by an organization like the American Civil Liberties Union or provided through an insurance company must the judge recuse when that attorney appears before the judge?

Answer

Under CJC Canon 3(D)(1), a judge should disqualify him or herself from hearing a case when the judge's impartiality might reasonably be questioned. In Opinion 95-12, the Committee stated that, where an attorney is currently representing a judge in a personal capacity, the judge should disqualify because that circumstance is one in which his or her impartiality might reasonably be questioned. This response does not change regardless of whether the judge receives legal services in a personal capacity from an attorney sponsored by an organization, provided through an insurance company or retained by the judge personally.

Canon 3(E) provides that a judge disqualified by the terms of Canon 3(D)(1)(c) or (d) may, instead of withdrawing, disclose the basis for the disqualification and provide the parties and counsel with an opportunity to agree that the judge need not disqualify. In addition to the specific fact situations enumerated in sections 3(D)(1)(c) and (d), there may be other fact situations which are sufficiently analogous to those sections for the disclosure provision of Canon 3(E) to apply. Because we have not been provided with the specific facts of the representation in this case, the Committee has assumed that there may be facts which make applying Canon 3(E) appropriate by analogy to section 3(D)(1)(d). If so, the judge may choose to disclose and recuse only on request of a party, assuming the circumstances of representation do not require disclosure in any event under Canon 3(D)(1) because the judge's impartiality might reasonably be questioned.

Opinion 97-06

05/12/1997