Could lawyers in a judge’s spouse’s firm appear before the judge if they did not share profits?

Plain-English summary

A judge's spouse practiced in a partnership whose lawyers did not share profits or equity. The judge asked about those lawyers' appearances and separately about former clients and a former employer.

The Committee said Neb. Rev. Stat. § 24-739 required disqualification for the spouse and copartners despite their financial arrangement. It noted the statute's written, on-record party waiver route, but cautioned that repeated requests for waivers could be coercive. It did not decide a general rule for former-client matters, which required case-by-case assessment.

Currency note

This opinion was issued in 1998, before Nebraska's adoption of the 2011 Revised Code of Judicial Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement.

Common questions

Q: Did separate profits remove the spouse-firm conflict?

A: No. The Committee said the statute applied to the spouse and copartners even without shared profits.

Q: Did the opinion resolve every former-client question?

A: No. It said the judge had to assess each former professional relationship individually.

Background and rules framework

The opinion applied former Canons 2 and 3 and Neb. Rev. Stat. § 24-739 to spouse-firm disqualification and written waiver.

Citations and references

Former Nebraska Code of Judicial Conduct: Canons 2B and 3E(1). Statute cited: Neb. Rev. Stat. § 24-739. Earlier opinion cited: Nebraska Ethics Advisory Opinion 96-4.

See also

• NE Judicial Ethics Op. 98-6: Spouse’s Employer

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 98-5

Original opinion text

Best-effort text extraction from the official PDF. The linked PDF is authoritative.

Nebraska Ethics Advisory Opinion 98-5

Question Presented--
May members of a judge’s spouse's law firm practice before the judge? When must the judge recuse from cases involving former clients or clients of a previous employer?

Conclusion
The judge is prohibited from hearing cases involving the spouse or the spouse's law firm. This is true even where the lawyers do not share profits or any equity interest. This opinion does not address the second question because each former client relationship must be examined on a case by case basis by the judge; however, some of the issues discussed here apply.

Statement of Facts
The judge's spouse practices law in a partnership with several other attorneys. The lawyers do not share profits or hold an equity interest in the partnership, and the attorney spouse does not have an economic interest in any other attorney's case.

Applicable Code Sections
Nebraska Code of Jud. Cond., Canons 2 and 3:

CANON 2

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities

....
B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment . . . .
....

CANON 3

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

....
E. DISQUALIFICATION.

(1) A judge shall not participate in any proceeding in which the judge's impartiality reasonably might be questioned, including but not limited to instances where:

Nebraska Ethics Advisory Opinion
98-5
Released: September 1998
Page 1 of 3
 ....
(d) the judge or the judge's spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person:
....
(iii) is known by the judge to have more than de minimis interest that could be affected substantially by the proceeding;
....
(e) Any other instance where law requires disqualification.

References in Addition to Nebraska Code of Judicial Conduct
Neb. Rev. Stat. § 24-739 (Reissue 1995), entitled “Disqualification of judge; grounds,” states in part:
A judge shall be disqualified from acting as such in the county court, district court, Court of Appeals, or Supreme Court, except by mutual consent of the parties, which mutual consent is in writing and made part of the record, in the following situations: (1) In any case in which (a) he or she is a party or interested, (b) he or she is related to either party by consanguinity or affinity within the fourth degree, (c) any attorney in any cause pending in the county court or district court is related to the judge in the degree of parent, child, sibling, or in-law or is the copartner of an attorney related to the judge in the degree of parent, child, or sibling, or (d) he or she has been attorney for either party in the action or proceeding.
Nebraska Ethics Advisory Opinion 96-4
Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.16 (2d ed. 1995)

Discussion
Section 24-739 prohibits a judge's spouse from practice before the judge, and that prohibition extends to the spouse's copartners. It requires disclosure and disqualification. The statute is mandatory and not discretionary; however, it does permit waiver on the record and in writing by all parties. Waiver is discussed in Nebraska Ethics Advisory Opinion 96-4. The waiver itself can become coercive if the judge is not sensitive to the dynamics of the situation. Consequently, judges who routinely request and expect waivers can expect criticism from counsel. The better practice would be to disclose the prohibited relationship and disqualify. Then, unless the parties propose a waiver, a different judge would handle the case.
Even if the spouse's copartner practice was not prohibited by the statute, it would be closely scrutinized by Canons 2 and 3. Regular appearance by a spouse's copartner before the judge could easily appear improper and bring disrespect to the judge and the judiciary.
The judge must also be sensitive to professional relationships developed during the practice of law before appointment to the bench. This area particularly affects a new judge. The treatise, Jeffrey M. Shaman et al., Judicial Conduct and Ethics, § 4.16 at 127 (2d ed. 1995) cites the following test: "‘[W]hether there was a prior knowledge of the facts [in a case before the judge] or a prior interest in an issue arising out of them.’" Each case which involves a prior professional relationship must be assessed by the judge. This requires a two pronged effort. First, the judge determines whether there is a prohibited prior professional relationship, and then the judge determines whether there is a possible appearance of a prohibited prior professional relationship. Even though the ability to "trust your gut" is helpful, judicial sensitivity to potential prohibited relationships is the key to success.

Nebraska Ethics Advisory Opinion
98-5
Released: September 1998
Page 2 of 3
Disclaimer
This opinion is advisory only and is based on the specific facts and questions submitted by the person or organization requesting the opinion pursuant to appendix A of the Nebraska Code of Judicial Conduct. Questions concerning ethical matters for judges should be directed to the Ethics Advisory Committee.

APPROVED AND ADOPTED
BY THE COMMITTEE ON SEPTEMBER 23, 1998

Judge Darvid Quist
Judge Randall Rehmeier
Judge Stephen M. Swartz
Judge Toni G. Thorson
Judge John Irwin
Judge Cloyd Clark
Judge Donald Rowlands

Nebraska Ethics Advisory Opinion
98-5
Released: September 1998
Page 3 of 3