May a clerk magistrate hear cases from a firm employing the magistrate’s spouse as office manager?

Plain-English summary

A clerk magistrate's spouse became the office manager and bookkeeper for a law firm that regularly appeared in the magistrate's court. The Committee considered the spouse's employment and the firm's possible influence on judicial proceedings.

The Committee called for disqualification from the firm's cases under former Canons 2 and 3. It said the spouse could remain employed, and the clerk magistrate could participate only if the Code's remittal procedure was followed and the parties consented.

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 Treat this page as historical context, not current guidance.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 the opinion require the spouse to leave the firm?

A: No. It addressed the clerk magistrate’s participation in the firm’s cases, not the spouse’s employment.

Q: Could the clerk magistrate ever hear a firm case?

A: Yes, if disqualification was remitted under former Canon 3F and the parties consented.

Background and rules framework

The opinion applied former Canon 2B on perceived influence, Canon 3E(1) on disqualification and Canon 3F on remittal.

Citations and references

Former Nebraska Code of Judicial Conduct: Canons 2B, 3E(1) and 3F. Earlier opinion cited: Nebraska Ethics Advisory Opinion 96-3.

See also

• NE Judicial Ethics Op. 98-5: Spouse’s Firm

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 98-6

Original opinion text

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

Nebraska Ethics Advisory Opinion 98-6

Question Presented--
May a clerk magistrate hear or act on cases of a law firm that employs the clerk magistrate's wife in the capacity of an office manager and bookkeeper?
If a conflict exists, what, if any, conditions would be available to continue her employment?

Conclusion
The Code of Judicial Conduct has been extended to include clerk magistrates. A judge shall not participate in a proceeding in which the judge's impartiality reasonably might be questioned. Likewise, a judge shall not convey or permit others to convey the impression that they are in a special position to influence the judge. It is the opinion of the committee that the judge (clerk magistrate) should not participate in any proceeding involving cases of the law firm, subject, however, to the remittal of disqualification procedure set forth at Canon 3F of the Nebraska Code of Judicial Conduct.

Statement of Facts
The wife of a clerk magistrate has taken a job as office manager and bookkeeper for a law firm. The law firm is located in the county in which the clerk magistrate serves. The law firm does civil and criminal work and regularly appears in the clerk magistrate's court.

Applicable Code Sections
Neb. Code of Jud. Cond., Canons 2 and 3 (rev. 1996)

References in Addition to Nebraska Code of Judicial Conduct
Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.25 at 143 (2d ed. 1995) Nebraska Ethics Advisory Opinion 96-3

Discussion
The relevant portions of the Code are Canons 2 and 3. The applicable portions of said Canons are as follows:

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 . . . nor shall a judge convey or permit others to

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98-6
Released: December, 1998
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 convey the impression that they are in a special position to influence the judge . . . .
....

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:

....
(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.

Canon 3E(1) states that a judge shall enter disqualification when "the judge's impartiality reasonably might be questioned." The Canon further provides that this includes situations where the judge or the judge's spouse has a more than de minimis interest that could be affected substantially by the proceeding. Although the financial arrangements are not disclosed in the request for the opinion, it can reasonably be assumed that the clerk magistrate's wife will be paid for her services. A law firm's ability to make payroll, offer raises, or pay year-end bonuses largely depends upon its financial success. The clerk magistrate's wife as the office manager obviously will have an integral part in determining the financial success of the law firm.
In Nebraska Ethics Advisory Opinion 96-3, the committee pointed out that an objective test should be applied in determining situations where a judge’s impartiality is subject to reasonable question. The treatise Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.25 at 143 (2d ed. 1995), cites the following test: “The test for an appearance of impartiality is meant to be an objective one: whether an objective, disinterested observer fully informed of the relevant facts would entertain a significant doubt that the judge in question was impartial. This is objective in the sense that the standard is filtered through the eyes of a reasonable observer rather than through the subjective view of the judge in question.” It is the opinion of the committee that in applying an objective standard a disinterested observer might question or doubt the clerk magistrate’s impartiality due to the relationship of the law firm and the clerk magistrate’s wife.
Even if the clerk magistrate were convinced that his wife only had a de minimis financial interest regarding the matters (cases) brought before him, the clerk magistrate would also have to be concerned about perceptions of partiality and consider whether the same would be reasonable under

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the circumstances. The assumed closeness of the marital relationship cannot be ignored. Due to the relationship between the clerk magistrate’s wife and the firm, an obvious impression may occur that the law firm, due to such relationship, may be in a special position to influence the clerk magistrate. This would be in conflict with Canon 2B.
The clerk magistrate further requested that the committee address what, if any, conditions would be available to allow his spouse to continue her employment. The clerk magistrate’s wife, of course, is free to continue her employment. That is not the problem. The issue is whether or not the clerk magistrate must disqualify himself from handling cases involving the law firm employing his wife. As previously stated, the committee is of the opinion that the clerk magistrate should disqualify himself from cases handled by the law firm employing his wife. The Canons do, however, provide for a procedure for remittal of disqualification. See Canon F. Assuming that the remittal of disqualification procedure is followed, and the parties consent, the clerk magistrate may participate in the proceeding.

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 DECEMBER 31, 1998

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

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Released: December, 1998
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