Did a judge’s spouse soliciting local businesses for her employer create an immediate judicial-ethics problem?

Plain-English summary

A chancery judge asked about his wife taking a job soliciting local businesses for an employer that offered accounting and other business services. He would have no connection to her work.

The Committee saw no immediate ethics problem on those facts. It said conflicts would depend on later circumstances, such as a solicited business being a likely litigant or frequently appearing in the judge’s court, and discussed the Code’s impartiality and appearance provisions.

Currency note

This opinion predates the Arkansas Code of Judicial Conduct that took effect July 1, 2009, as stated in JEAC Opinion 2009-04. Later rules and opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on a specific rule.

Common questions

Q: Did the Committee object to the spouse taking the described job?

A: It saw no immediate problem on the facts given.

Q: Could later cases raise recusal concerns?

A: Yes. The opinion says the circumstances of a solicited business appearing before the judge could cause impartiality to be questioned.

Background and rules framework

The Committee discussed Arkansas Code of Judicial Conduct Canons 4(D), 3(E), and 2 as they stood when the opinion issued.

Citations and references

• Arkansas Code of Judicial Conduct Canons 4(D), 3(E), and 2.
• Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), cited on judicial bias.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2000-13/
• Alternate official text: https://jddc.arkansas.gov/opinions/opinion-no-00-13/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

January 24, 2001

Honorable Richard E. Gardner, Jr.

Chancery Judge

Pope County Courthouse

P. O. Box 2691

Russellville, AR 72801

Re: Advisory Opinion 2000-13

Dear Judge Gardner:

You have asked this committee to consider whether it is advisable for your wife to take a job which would require her to solicit business for her employer from various businesses in the area of Russellville. Her solicitations would be under the name of her employer, which provides accounting and bookkeeping services, as well as advice regarding workers compensation insurance and employer-employee relations, taxes and other business related matters. Such advice would not be provided by your wife, but through her employer, a Florida corporation. You would have no connection with the business in any manner.

Where your wife chooses to work is, of course, beyond the aegis of this committee. The Commentary to Canon 4D offers pertinent guidance:

“...a judge should discourage members of the judge’s family from engaging in dealings that would reasonably appear to exploit the judge’s judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification.”

We see no immediate problem in the activities you describe. Whether there are potential conflicts between the work your wife is considering and your judicial duties would depend on circumstances not now available to us. Problems could conceivably arise involving an appearance of partiality and conflicts of interest. If, for example, a business solicited by your wife were an expectant or inchoate litigant or, due to the nature of its enterprise, were frequently involved in cases heard by you, your impartiality may be reasonably questioned.

Canon 3E provides that:

“a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including instances where (a) the judge has a personal bias or prejudice concerning a party ...”

-2-

Honorable Richard E. Gardner, Jr.

January 24, 2001

______

Further, Canon 2 provides that a judge should avoid the appearance of impropriety in all the judge’s activities. However, the mere fact that a judge may have a bias or prejudice does not make the trial judge so biased and prejudiced as to require disqualification in future proceedings. Matthews v. Rodgers, 279 Ark. 328, 651 SW2d 453 (1983). Bias is a subjective matter to be confined to the conscience of the judge. Id. at 331.

Sincerely,

Steele Hays

For the Committee