Appearance Before Judge Who Is a Family Member
Adopted: October 21, 2005
Opinion rules that a lawyer may not appear before a judge who is a family member without consent from all parties and, although consent is not required, the other members of the firm must disclose the relationship before appearing before the judge.
Inquiry #1:
Law Firm hires Attorney A, who is married to District Court Judge B. Attorney A is also the daughter of Senior Resident Superior Court Judge C. Judges B and C are in the same judicial district and the lawyers in Law Firm regularly appear before judges in this district, including Judges B and C.
May a member of Law Firm, other than Attorney A, appear before Judges B and C?
Opinion #1:
Yes. While Attorney A may not personally appear before Judges B and C without consent from all parties involved in the matter, a member of Attorney A's firm is not disqualified. See CPR 225 (lawyer permitted to appear before judge who is his brother with consent from all parties to the matter). A previous ethics opinion held that the personal disqualification of a lawyer from practicing before a family member ordinarily is not imputed to the other members of the lawyer's firm. CPRs 226 and 367. Nonetheless, a judge may determine independently that he must recuse himself if his impartiality may be reasonably questioned by reason of financial interests or some other special circumstances. Canon III D of the Code of Judicial Conduct; see also 97 Formal Ethics Opinion 1.
Inquiry #2:
May Attorney A work on a case which is pending before either Judge B or C, so long as she does not make an appearance in the matter and does not appear in court while the matter is being heard?
Opinion #2:
No, unless there is disclosure.
A lawyer's personal disqualification from appearing before a judge closely related1 to her protects the integrity of the judicial system and avoids the appearance of impropriety or judicial partiality. Strictly speaking, a lawyer who appears before a judge with whom she has a familial relationship does not have a conflict of interest because the representation does not disadvantage or prejudice the lawyer's own client. Rule 1.7. It is also unlikely that the lawyer's judgment would be impaired or that she could not exercise independent professional judgment on behalf of the client under the circumstances. Instead, the client may appear to be advantaged by his lawyer's relationship with the judge, and it is this appearance of unfair advantage that both the Code of Judicial Conduct and our ethics opinions strive to avoid.
While the Rules of Professional Conduct do not prohibit Law Firm2 from appearing before Judge B or C in this situation, Law Firm must disclose Attorney A's familial relationship to opposing counsel as soon as it becomes apparent that the matter will be heard by either Judge B or C. Disclosure of the familial relationship is required whenever a law firm appears before the family member of one of its members.3 Disclosure serves the interest of promoting the administration of justice and the public confidence in a fair and impartial judicial system. See 0.1 Preamble, cmt. [6].
Inquiry #3:
Assume that Attorney A has no involvement in a matter coming before Judge B, her husband. The matter involves fees for Law Firm either because it is a collection case on behalf of Law Firm or because there is a claim for attorney's fees associated with the underlying claim (e.g., custody or child support in district court; Rule 11 in Superior Court).
May members of Law Firm appear before Judge B without disclosing Attorney A's relationship?
Opinion #3:
No. If Attorney A stands to benefit directly from a favorable outcome, then Judge B, Attorney A's husband, would also benefit financially. Under these circumstances, Law Firm may seek first to have the matter heard by someone other than Judge B if possible. If it is not possible, disclosure should be made to opposing counsel so that he has the opportunity to move for recusal. Law Firm should disclose Attorney A's relationship, even where Attorney A would not directly benefit financially from the outcome. See Opinion #2, above. In addition, Judge B may independently determine that he must recuse himself under the Code of Judicial Conduct because his impartiality may be reasonably questioned under the circumstances.
Inquiry #4:
Assume the same facts as in Inquiry #3, except that a member of Law Firm is appearing before Judge C, Attorney A's father.
May members of Law Firm appear before Judge C without disclosing Attorney A's relationship?
Opinion #4:
No.
Inquiry #5:
May Attorney A appear before judges other then Judges B and C in the same judicial district?
Opinion #5:
Yes.
Inquiry #6:
What disclosures, if any, do the Rules of Professional Conduct require Law Firm to make to clients concerning Attorney A's relationship to local judges?
Opinion #6:
Pursuant to Rule 1.4, a lawyer must provide information and explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation. Whether a matter will go to trial, or be heard by a particular judge, may be speculative at the outset of the representation. If a lawyer knows that she will need to seek opposing counsel's consent to proceed before Judge B or C, then the lawyer should also inform her client. Ordinarily, it will be in the lawyer's discretion to determine whether disclosure about the relationship between a firm lawyer and a judge is appropriate under the circumstances.
Endnotes
- For purposes of this opinion, a "close relative" is defined consistently with Canon 3C of the Code of Judicial Conduct: a person within the third degree of relationship to the lawyer or the lawyer's spouse, or a spouse of such person. The third degree of relationship includes parent or child, grandparent or grandchild, great grandparent or great grandchild, sibling, uncle, aunt, niece or nephew.
- The duties applicable to a "Law Firm," in this opinion arise only to the extent a lawyer in the firm has knowledge of such relationship. "Knowledge" is defined as "actual knowledge of the fact in question," however, "[a] person's knowledge may be inferred from the circumstances." Rule 1.0(g).
- In a large or multistate law firm, the familial relationship between a firm member and a judge may not be known to all lawyers of the firm. The judge, who presumably would be aware of the relationship, would assess whether he must recuse himself because his impartiality may be reasonably questioned under the circumstances. Canon 3C, Code of Judicial Conduct.