Must a Maryland judge recuse when a spouse's nephew appears as counsel, or when another lawyer from the nephew's firm appears?
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This page answers the general question as of 1974. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A judge's spouse had two attorney nephews: one becoming an assistant state's attorney and the other associated with a law firm. The judge asked whether either could appear before him.
The Committee concluded that each nephew fell within the prohibited degree of relationship and that the judge must disqualify when either nephew would personally appear. Appearance by other lawyers from the second nephew's firm was different: it did not necessarily require disqualification, though reasonable questions about impartiality or a substantial effect on the nephew's firm interest might change the result.
The Committee cited ABA Canon 3C as guidance but noted that the ABA Canons had not been adopted in Maryland.
Currency note
This opinion discusses the Maryland judicial ethics provisions in force at the time it was written. Its analysis is historical; verify the current Maryland Code of Judicial Conduct and the linked opinion before relying on a cited provision.
Common questions
Q: Could either nephew personally appear before the judge?
A: No. The Committee said the judge would have to disqualify in a case in which either nephew would otherwise appear.
Q: Did any appearance by the second nephew's firm compel recusal?
A: No. The opinion said that other members' or associates' appearances did not necessarily do so.
Q: What could matter when another firm lawyer appeared?
A: The opinion identified reasonable doubts about impartiality and whether the nephew's firm interest could be substantially affected.
Background and rules framework
The opinion applies Maryland's then-cited Canon XIII and Ethics Rule 2 to relatives by marriage within the specified degree. It discusses ABA Canons 3C(1) and 3C(3) as guidance while stating that the ABA Canons were not adopted in Maryland.
Citations and references
- Maryland Canons of Judicial Ethics, Canon XIII; Rules of Judicial Ethics, Rule 2.
- ABA Code of Judicial Conduct, Canons 3C(1) and 3C(3) (not adopted in Maryland, per the opinion).
- Maryland JEC Opinion Request 1971-02 (unpublished).
See also
Source
- Landing page: Maryland Judicial Ethics Committee opinion index
- Original PDF: Opinion 1974-08
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Maryland Judicial Ethics Committee
Opinion Request Number: 1974-08
Date of Issue: December 26, 1974
O Published Opinion G Unpublished Opinion G Unpublished Letter of Advice
Judge Not to Hear Cases Involving Attorney-nephews of Spouse or Which Could Substantially Affect Nephew's Interest in Law Firm
We are advised that X is about to be appointed an Assistant State’s Attorney for
County and
that X and his brother, Y, who is associated with the firm of A & B, are nephews of [your spouse]. The problem is whether either of the Messrs. X & Y can appear before you. Canon XIII of the Maryland Canons of Judicial Ethics provides that “A judge should not act in a controversy where a near relative is a party or lawyer; ...” Rule 2 of the Maryland Rules of Judicial Ethics provides:
“A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a lawyer ... . For the purpose of this Rule, ‘near relative’ shall mean connection by consanguinity or affinity within the third degree, counting down from a common ancestor to the more remote.” The Code of Judicial Conduct promulgated by the American Bar Association, Canon 3C(1) provides that a judge shall disqualify himself in a proceeding in which he or his spouse or a person within the third degree of relationship to either of them is a party or acting as a lawyer. There is a further provision in Canon 3C(3) that the degree of relationship is to be calculated according to the civil law system.
In an opinion which we released in September 1971, [Opinion Request No. 1971-02 (unpublished)] we concluded that Canon XIII and Rule 2 did not prohibit a judge from sitting in a case which was being tried by an Assistant State’s Attorney simply because the judge’s son was a State’s Attorney for the County in question, so long as the State’s Attorney took no part in the actual prosecution of the case, if the case was not one of more than usual public interest in which the State’s Attorney played some role prior to the actual trial.
Since X is within the degree of relationship proscribed by both the Maryland Rule and the ABA Canon, it is our opinion that it will be necessary for you to disqualify yourself in any case in which he would otherwise appear before you and disqualification would be similarly required in any case in which Y would otherwise have appeared.
The association of Y with the firm of A & B will not necessarily require your disqualification in cases in which the members of that firm or other associates appear. The Comment to ABA Canon 3C(1) would seem to indicate that disqualification might be required only under circumstances where your impartiality might reasonably be questioned or where you know that [your spouse’s] nephew’s interest in the firm could be substantially affected by the outcome of the proceeding.
While the ABA Canons have not been adopted in Maryland, they are usually regarded as setting up standards of which the members of the judiciary should be mindful. In this connection, see Committee note to Maryland Ethics Rule 2.
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