When must a Maine judge recuse if the Attorney General is the judge’s sister-in-law?
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This page answers the general question as of 2009. 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 Superior Court justice asked about matters involving the Attorney General’s office because the newly elected Attorney General was her spouse’s sister. The committee focused on whether the Attorney General was acting as a lawyer in a particular proceeding. Source: Opinion 08-1.
The committee said the Attorney General acted as a lawyer when personally directing or approving staff decisions in a case. If a party requested recusal in such a case, the judge had to disqualify. It expected such personal involvement in major matters, including homicide cases and the AMHI Consent Decree, while recognizing that routine matters might be handled without it. Source: Opinion 08-1.
The opinion said disclosure without a party objection avoided a Code violation on the stated ground. It also said the Attorney General’s formal disqualification from a matter, with final authority delegated to a staff member, would appear to remove the judge’s disqualification issue. Source: Opinion 08-1.
In practice
The opinion drew the recusal line at the Attorney General’s personal role in the case, a party’s request after disclosure, and any formal withdrawal from participation. It did not treat every case handled by the Attorney General’s office as requiring recusal. Source: Opinion 08-1.
Common questions
Q: Did every case involving the Attorney General’s office require recusal?
A: No. The committee distinguished cases with the Attorney General’s personal direction or approval from cases handled by staff without that involvement. Source: Opinion 08-1.
Q: What if a party requested recusal after disclosure?
A: The committee said the judge would have to recuse if the Attorney General was personally acting as a lawyer in that case. Source: Opinion 08-1.
Q: Could the Attorney General’s withdrawal change the result?
A: The opinion said formal disqualification from participation and delegation of final decisions to staff would appear to remove the need for the judge’s disqualification on that ground. Source: Opinion 08-1.
Background and rules framework
The opinion applied Canon 3E on impartiality, disclosure and disqualification, and Part II, Section 3(P) on third-degree family relationships. The official PDF states “Issued: January 5, 2009”; the metadata follows that date rather than the number prefix. The source conclusion was checked against the official page image. Source: Opinion 08-1.
Citations and references
Maine Code of Judicial Conduct:
- Canon 3E(1); Canon 3E(2)(d)(ii); Canon 3E(3); Part II, Section 3(P).
See also
Source
- Landing page: Maine advisory-opinion index
- Original PDF: Opinion 08-1
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
Nee
JUDICIAL ETHICS COMMITTEE al:
Advisory Opinion 08-1 . ve
Issued: January 5, 2009 | |
i i " als Alek ie Le
I e OO Ole A te Ow Ot eH Oe es ws
Is a Judge of the Superior Court required to recuse in cases in which the Maine Attorney General's office is involved if the Attorney General is the sister of the Judge’s
spouse?
Facts
A Superior Court justice is married to the brother of the newly elected Attorney
General. She has asked for guidance as to whether this requires recusal for cases involving the Attorney General's office, with particular attention to homicide cases prosecuted by the criminal division of the Attorney General's office and to the AMHI Consent Decree which the justice has overseen since 1994.'
Canon 3E (1) and (2) of the Code of Judicial Conduct provide in pertinent part as
follows:
(1) A judge shall disqualify himself or herself on the judge’s own initiative in any proceeding in which the judge has reason to believe that he or she could not act with complete impartiality. A judge acting under this subsection (1) need not state the grounds of disqualification.
(2) A judge may disqualify himself or herself on the judge’s own initiative want stating the grounds for disqualification, and shall disqualify himself or seli : i or _recusa ade by a
' The membership of the Judicial Ethics Committee includes the Attorney General or a designee from the Attorney General's office. However, neither the Attorney General nor his designee
participated in this advisory opinion.
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer.
: ithin the
or the spouse
(d) the
third Ge C1iatic
of such a person...
(ii) is acting as a lawyer in the proceeding.
(emphasis added).
Under the Definitions section in Part II of the Code of Judicial Conduct, brothers
and sisters are within the third degree of relationship. Code, Part II, Section 3(P). Discussion
The issue, as the Committee understands it, is whether under the circumstances disqualification is required under Code 3E(2)(d)(ii) even if the judge has no reason to believe that the judge cannot act with complete impartiality?
Initially, although disclosure would be required under Canon 3E(3), disqualification would not be required under Canon 3E(2) unless one of the parties seeks recusal. If one of the parties seeks recusal, it is evident that the judge’s spouse is within the third degree of relationship to the Attorney General and disqualification would therefore be required under 3K(2)(d)(ii) so long as the Attorney General is “acting as a lawyer” in any given proceeding.
The Attorney General has the right to direct and control all the lawyers in the . Attorney General’s office, and the Attorney General’s office (with a few limited exceptions) represents the State, State agencies, and State officers in all legal
proceedings. It is rare that an Attorney General will personally appear as counsel in a
- Disqualification would be required under Canon 3E(1) if a judge has reason to believe
that he or she could not act with complete impartiality but the Committee assumes that the justice sees no impediment on that score.
v
case where the State is represented by the Attorney General's office. However, there are many cases where the Attorney General is personally involved in legal decisions relating to a given case. For instance, ordinarily the Attorney General either directs or approves the major decisions made by his or her staff in important cases. The Committee would expect this to be true with respect to homicide cases and the AMHI Consent Decree.
Other cases in which the Attorney General’s office represents the State are handled by members of the Attorney General's staff without any direct involvement by the Attorney General. However, even in routine cases where the Attorney General ordinarily would have no involvement of any kind, unexpected developments might result ina siteation where the Attorney General becomes involved.
It is the Committee’s view that the Attorney General is acting as a lawyer in all cases where the Attorney General is personally involved in directing or approving decisions by her staff. A judge whose spouse is the brother of the Attorney General would therefore be required to recuse in such cases if requested to do so by any party. However, if no party objects after disclosure of the potential issue, there would be no violation of the Code.
Lastly, the Attorney General could obviate any issue as to judicial disqualification in a given case by formally disqualifying herself from any participation | with respect to that case and by delegating final decision-making authority in that case to a designated member of the Attorney General’s staff. It is our understanding that in certain instances present and former Attorneys General of the United States have issued orders removing themselves from any discussion, participation, or decision-making role with respect to a specified case. If the Maine Attorney General were to elect to do that
in a specific case or category of cases, the need for disqualification by the judge would
appear to be eliminated even if a party objected because the Attorney General would no
longer be acting as a lawyer with respect to that case.
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