State of Washington

Ethics Advisory Committee

Question

Does the fact that the spouse of a Supreme Court justice’s law clerk works as a paralegal for the defense in the retrial of the sentencing phase in a capital case present any ethical concerns for the justice?

One of the Supreme Court justice’s law clerk is married to the paralegal who has been hired by the defense team retrying the sentencing phase in a capital case. This work has been authorized by the trial court through the end of the trial. The defense team does not contemplate that the spouse will work beyond the presently scheduled trial.

Answer

CJC Canon 2(A) provides that judges should act at all times in a manner that promotes the public confidence in the integrity and impartiality of the judiciary. Canon 2(B) provides that judges should not allow social or other relationships to influence their conduct or judgment. CJC Canon 3(D)(1) provides that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.

The fact that the judge has a law clerk whose spouse is employed as a paralegal for the defense in the retrial of the sentencing phase of a capital case in itself does not call the judicial officer’s impartiality into question. If the case is appealed to the Supreme Court, the judicial officer should disclose the relationship of the law clerk to the paralegal and isolate the law clerk from any participation on the case but the judicial officer would not be disqualified from the proceeding. Nonparticipation by the law clerk will eliminate the appearance of impropriety.
CJC Canon 3(B)(2) provides in part that judges should require their staff observe the same standards that apply to the judge. Therefore, the judicial officer should admonish the law clerk not to discuss the case in the presence of the judicial officer.

Opinion 96-10

05/10/1996