Must a Maine judge recuse when a future son-in-law’s law firm appears before the judge?

Plain-English summary

A Superior Court judge asked about cases handled by a law firm employing his daughter’s future husband. The future son-in-law was an associate who did not litigate; the judge asked about blanket recusal versus disclosure and recusal on request. Source: Opinion 09-1.

The committee said the firm’s representation of a party did not by itself mean the son-in-law was acting as a lawyer in the proceeding. If he personally worked on the matter, even without appearing in court, Canon 3E(2)(d)(ii) applied. The committee also rejected the idea that the daughter had an economic interest in every matter involving her spouse’s firm solely because of his associate position. Source: Opinion 09-1.

The committee expected disclosure of the relationship. Its conclusion required disqualification when the son-in-law acted as an attorney in the proceeding and a party moved for recusal; without such a motion, it left the judge discretion to assess impartiality. Source: Opinion 09-1.

In practice

For cases involving only the son-in-law’s firm, the opinion did not impose blanket recusal. It treated his own work on a matter, a party’s recusal motion and the judge’s assessment of impartiality as distinct facts. Source: Opinion 09-1.

Common questions

Q: Was the law firm’s appearance alone enough?

A: No. The committee distinguished the firm’s representation from the son-in-law personally acting as a lawyer in the proceeding. Source: Opinion 09-1.

Q: Would behind-the-scenes work by the son-in-law count?

A: Yes. The opinion said Canon 3E(2)(d)(ii) applied if he personally worked on or had worked on the matter, even if he did not appear in court. Source: Opinion 09-1.

Q: When did the committee say the judge must disqualify?

A: When the son-in-law acted as an attorney in the proceeding and a party filed a motion to recuse. Source: Opinion 09-1.

Background and rules framework

The opinion applied Canon 3E on impartiality, disclosure and recusal, together with the Code’s family and relationship definitions in Part II, Section 3. The source PDF is scanned; its conclusion was checked against page three of the official image. Source: Opinion 09-1.

Citations and references

Maine Code of Judicial Conduct:

• Canon 3E(1); Canon 3E(2)(c), (d)(ii); Canon 3E(3); Part II, Section 3(L), (P).

See also

• ME Judicial Ethics Op. 08-1: Attorney General Relationship

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 09-1

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.

JUDICIAL ETHICS COMMITTEE

Advisory Opinion 09-1
Issued February 12, 2009

Issue
Is a Judge of the Superior Court required to recuse in cases in which the Judge’s lawyer son-in-law and/or his law firm appears before the Judge? Statement of Facts The Judge’s daughter is engaged to be married to a lawyer who is an associate at a prominent “X” County law firm. He practices in the areas of taxation and estate planning. He is not involved in litigation matters. The Judge inquires whether he should recuse in all matters wherein his son-in-law’s law firm serves as counsel, or should he disclose the information in advance to the involved parties and recuse if requested to do so. Applicable Provisions 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 without stating the grounds for disqualification, and_shall disqualify

himself _ or herself on a motion for recusal made by a party. in any proceeding in which the judge’s impartiality might reasonably be

questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer.

i ee a

(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding;

(d) the judge or the judge’s spouse or a person within the third degree of relationship to either of them, or the spouse 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, the following definition appears: Member of the judge’s family denotes a spouse, a child, grandchild,

parent, grandparent, or other relative by blood or marriage, or a person with whom the judge maintains a close personal relationship.

Code Part II, Section 3(L). In addition, a judge’s child is within the third degree of relationship to the judge. Id. Section (P).

Discussion

The first 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. Given the facts above and the contemplated marriage, the Committee assumes that the future son-in-law lawyer would become a member of the Judge’s family as defined, and, in addition, one with whom the

Judge maintains a close personal relationship.

Just because the law firm employing the son-in-law represents a party in a given case does not mean that the son-in-law is “acting as a lawyer in the proceeding.” But if the son-in- law is personally working on or has worked on the matter, even though he does not personally appear in court, then Canon 3E(2)(d)(ii) would apply.

The remaining issue is whether under Canon 3E(2)(c) the judge’s child can be considered to have an economic interest in the subject matter of a given controversy simply because her husband works as an associate at a law firm that represents one of the parties in a pending case before the judge (even though the judge’s son-in-law is not personally involved). In the Committee’s view, her spouse’s work as an associate at a law firm would not give the judge’s daughter an economic interest in every controversy where the law firm is concerned.

Conclusion
If the son-in-law lawyer is acting as an attorney in the proceeding before the Judge and a motion to recuse is filed, the Judge shall disqualify himself.

While we are sure that the Judge will disclose to all the litigants his future son-in-law’ s relationship with the ““X” County law firm, the Judge will have the judicial discretion to

determine whether he cannot judge the proceeding impartially, if no motion to recuse is filed.

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