State of Washington

Ethics Advisory Committee

Question

Should a judicial officer disqualify himself/herself from hearing any case in which personal friends are counsel?

Family law commissioners, who were formerly deputy prosecuting attorneys in the family law division of the prosecutor’s office, recuse themselves in cases in which their friends who are deputy prosecuting attorneys are counsel. During their employment with the prosecutor, they each developed cordial professional relationships with their fellow deputies and closer personal friendships with certain deputies. Following appointment to the bench, it is the court’s policy not to permit the commissioners to hear cases from the family law division for one year.

Once the commissioners began hearing cases involving the family law division, each commissioner recused himself/herself from hearing any case in which a deputy who is also a friend would appear to argue the case. However, the commissioners would hear cases assigned to those deputies so long as another deputy presented and argued the matter before the commissioner. In those cases, the pleadings may be prepared and signed by the deputy who could not appear in person, but pleadings generally consist of trial memoranda and briefs signed on behalf of the county prosecuting attorney. Pleadings may also contain affidavits from others and supporting documents, but do not include affidavits of substantive information signed by the deputy.

The deputies have no financial interest in the outcome of their cases.

Answer

CJC Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. This canon goes on to cite examples over which a judicial officer should be disqualified from presiding. Although not exhaustive, the examples cited all involve situations where a judicial officer has personal knowledge about the proceeding, personal bias or prejudice regarding a party, served as a witness or was a lawyer in the matter in controversy, or a lawyer with whom the judicial officer practiced served during that association as a lawyer, or the judicial officer or a member of the judicial officer’s household has an economic interest or is involved with the proceeding.

This canon does not require a judicial officer to be disqualified from presiding over a matter in which a friend of the judicial officer is acting as counsel in the absence of other circumstances which would require disqualification. There may be circumstances in which a judicial officer should disqualify him/herself from presiding over a matter in which a friend is acting as counsel, such as where, because of the friendship, it would appear that the judicial officer might not be impartial or the judicial officer questions his/her ability to be impartial.

While not specifically required by the rule, the following approach is one that the Committee understands is utilized by some judicial officers and is one that the Committee believes is in tune with the spirit of the rule:

The judicial officer should disclose that he/she is either acquainted with or friends with counsel and explain the nature of the relationship. In some situations because of the nature of that relationship, the judicial officer should recuse if he/she cannot be impartial or if the judicial officer’s impartiality might be reasonably questioned. In other situations, the judicial officer might invite comments or concerns from counsel and/or the parties about the relationship and the judicial officer should recuse if the judicial officer concludes that his/her impartiality might reasonably be questioned.

Opinion 04-02

03/17/2004