State of Washington

Ethics Advisory Committee

Question:

Whether an attorney, who is retired from private practice but licensed through the Washington State Bar Association (WSBA), and is also married to a judge on the Superior Court Bench, should continue to be listed on the Superior Court's approved arbitrator list and GAL registries?

The attorney was originally appointed to the arbitrator list in 1991 and has remained on the list since that time. He is appointed as an arbitrator in individual civil cases through randomly-generated strike lists, giving the parties/counsel the opportunity to strike his name as a viable selection. The attorney has served ably and assisted the court since that time. In 1997, the attorney applied, and was appointed to, the Court's Title 26 and Title 11 Guardianship ad Litem (GAL) registries. His appointment is subject to the selection procedures outlined in State and local court rules.

In 2005, the attorney's spouse was appointed to the Superior Court bench and continues to serve today. The court, the attorney/judge's spouse, and the judge have taken great care to ensure that the nature of their roles have not intersected in any capacity in the Superior Court.

Answer:

Judges are required to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. CJC 1.2. CJC 2.13(A) requires judges to exercise their power to make administrative appointments impartially, on the basis of merit, and to avoid nepotism and favoritism.

In previous ethics advisory opinions, the Committee has advised that when making administrative appointments involving relatives, the court must act in a manner that promotes public confidence in the judiciary by not allowing family or other relationships to influence their judicial conduct, by adopting hiring protocols based on merit to avoid the appearance of nepotism and favoritism, and by diligently discharging their administrative responsibilities and facilitating the performance of the administrative responsibilities of other judges and court officials. See, e.g., Ethics Advisory Opinion (EAO) 05-09 (development of a hiring protocol to ensure that the exercise of appointments are based on merit to avoid the appearance of nepotism and favoritism and that the judicial officer has no supervisory authority relative to the court employee/relative and the supervisor of that employee will guard against an appearance of partiality); EAO 99-12 (when a court develops and follows an appropriate protocol regarding the employment and supervision of court personnel that includes the prohibition of being presiding judge when a family relationship exists between the judge and deputy court administrator, there are no ethical concerns that the deputy court administrator is married to a judge on the same court); and EAO 92-11 (it is not appropriate for a judicial officer to appoint their attorney/child to serve as a pro tem judge because it would create an appearance of impropriety and would be viewed as an act of nepotism).

Based on the representation that "the court, the attorney/judge's spouse, and the judge have taken great care to ensure that the nature of their roles have not intersected in any capacity in the Superior Court" the Committee understands this to mean that the judges realize the judge's spouse may not be appointed to any case over which the judge presides nor may the spouse appear before the judge in any proceeding.

Based on the representation that the "appointment is subject to the selection procedures outlined in State and local court rules," the Committee understands that the court follows an objective procedure in selecting attorneys for appointment to the court's arbitrators list and GAL registries.

The attorney/judge's spouse in question has been appointed to the court's arbitrator list since 1991 and GAL registries since 1997, and has reportedly served ably in these appointed roles for several years prior to the attorney's spouse joining the bench in 2005. The attorney's spouse joining the bench does not automatically prohibit the attorney/judge's spouse from being appointed to the court's arbitrator list or GAL registries if the court diligently follows appointment processes that involve objective protocols. Similarly, the court is not required to de-list the attorney/judge's spouse and the court may continue to appoint the attorney/judge's spouse to the court's arbitrator list and GAL registries as long the court diligently followed appropriate protocols based on merit to ensure there is no appearance of impropriety, nepotism, or favoritism.

Opinion 20-06

09/09/2020