State of Washington

Ethics Advisory Committee

Question

Is a judicial officer required to recuse from hearing appeals concerning criminal cases filed by the prosecuting attorney’s office where the judicial officer was formerly employed?

The judicial officer was employed at a prosecutor’s criminal division for fifteen years prior to appointment as a court commissioner at an appellate court. That division in the prosecutor’s office employs over 200 attorneys. In the normal course of work as a court commissioner, the judicial officer rules on various motions in appeals of criminal convictions arising out of that county prosecuting attorney’s office.

Answer

CJC Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. The subsections to this provision name nonexclusive situations which may require a judicial officer to be disqualified including a situation where a lawyer with whom the judge previously practiced law served during that association as a lawyer in the matter. The Rules of Professional Conduct that deal with imputed disqualifications when a lawyer moves from one law firm to another or when a government lawyer moves to private practice provide, by analogy, some guidance as to the type of situations in which one’s impartiality might reasonably be questioned.

Therefore, depending on the circumstances, a judicial officer may not be required to disqualify him/herself from hearing a matter where the case was filed while the judicial officer was an employee of the prosecuting attorney’s office. For instance, if the judicial officer participated personally and substantially, as a lawyer or as a supervisor, in any proceeding in which the defendant was involved or had obtained, in the course of his/her employment as a prosecutor, material confidential information regarding the defendant or any of the proceedings in which the defendant was involved, the judicial officer should disqualify him/herself from hearing the matter.

Opinion 08-02

07/08/2008