May a magistrate hear cases involving the district attorney's office if the judge's spouse works there as a victim advocate?

Plain-English summary

The judge's wife had applied to be a victim advocate in the district attorney's office serving the judge's county, though her proposed assignment was in a neighboring county. The judge asked whether this employment would disqualify the judge from cases involving that office. Source: Opinion 13-10, p. 1

The committee applied Rule 21-211(A)'s impartiality standard and drew on its earlier opinions involving a spouse and a son who worked as prosecutors. It said the same principles applied to a victim advocate, even though the rule's illustration refers to a relative acting as a lawyer. Source: Opinion 13-10, pp. 1–2

The judge could preside in district attorney cases if the wife had not participated or worked on the particular case. Her assignment to the neighboring county did not change that limit, because it was the same district attorney's office. In every case involving that office in which the judge might otherwise preside, the committee directed on-record disclosure and consideration of waiver by the parties and their lawyers outside the judge's and court personnel's presence. Source: Opinion 13-10, p. 2

In practice

The opinion turns on whether the spouse has worked on the particular case, not merely on which county office employs her. It also requires disclosure of the employment in each covered case and the waiver procedure described in Rule 21-211(C). Source: Opinion 13-10, p. 2

Common questions

Q: Does the spouse's job automatically exclude the judge from every case involving the district attorney's office?

A: No. The committee allowed the judge to preside if the spouse had not participated in or otherwise worked on the case, subject to the disclosure and waiver procedure. Source: Opinion 13-10, p. 2

Q: Does a different county assignment remove the conflict?

A: No. The committee said the spouse would still work for the same district attorney's office that appeared in the judge's court. Source: Opinion 13-10, p. 2

Q: What disclosure did the committee call for?

A: It said the judge must disclose the spouse's employment on the record in each district attorney case the judge might otherwise hear, then ask parties and lawyers to consider waiver outside the judge's and court personnel's presence. Source: Opinion 13-10, p. 2

Background and rules framework

The committee cited New Mexico Code of Judicial Conduct Rule 21-211(A), including the illustration in (A)(1)(b) about a spouse or son acting as a lawyer, and Rule 21-211(C)'s disclosure and waiver procedure. It also discussed Advisory Opinions 07-04 and 87-06 as earlier applications involving relatives in a district attorney's office. Source: Opinion 13-10, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rule 21-211(A), (A)(1)(b), and (C). Source: Opinion 13-10

Other opinions cited:

• Judicial Advisory Opinion 07-04, on a spouse serving as chief deputy district attorney. Source: Opinion 13-10, p. 1
• Judicial Advisory Opinion 87-06, on a son serving as an attorney in the district attorney's office. Source: Opinion 13-10, p. 1

See also

• NM Judicial Ethics Op. 14-09: Spouse’s Compliance Work
• NM Judicial Ethics Op. 13-07: Former Lawyer’s New Firm

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 13-10

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.

Advisory Committee on the Code of Judicial Conduct

Hon. JaJames J. Wechsler, Chair
Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Hon. Freddie Romero

October 30, 2013

Re: Judicial Advisory Opinion No. 13-10

Your wife has applied for a position as a victim's advocate in the district attorney's office that serves the county in which you serve as a magistrate judge. The position for which she has applied is in the adjoining county in which you do not serve unless you are specifically designated in the event of a conflict of the presiding judge. You have asked the Committee on the Code of Judicial Conduct whether you would be disqualified from cases involving the district attorney's

office if your wife were to accept the position.

Under the Code of Judicial Conduct, a judge is disqualified and must recuse “in any proceeding in which the judge’s impartiality might reasonably be questioned.” Rule 21-211(A) NMRA. This Committee has interpreted the disqualification provision of previous versions of the Code in connection with relatives of a judge who served as attorneys in a district attorney's office. In Advisory Opinion No. 07-04, the Committee advised that a judge is disqualified from presiding in any case involving the district attorney's office because the judge’s spouse was the chief deputy district attorney with supervisory authority over the other attorneys in the office. In Advisory Opinion No. 87-06, the Committee advised that a judge was not disqualified from cases involving the district attorney’s office merely because the judge’s son was an attorney in the office. The judge was disqualified only in cases in which the judge’s son had participated or entered his appearance. For cases in which the son had not participated, the judge was required to inform the defendants of the relationship and provide the opportunity for the defendants to request the judge’s recusal.

The Committee appreciates that Rule 21-211(A), as did its prior versions, contains specific illustrations of circumstances in which a judge’s impartiality might reasonably be questioned that

includes when a judge’s spouse or son is “acting as a lawyer in the proceeding.” Rule 21- 211(A)(1)(b). The Committee believes, however, that the same principles apply regardless of whether the judge’s spouse is employed by the district attorney’s office as an attorney or as a victim’s advocate. The example of the attorney in the rule is merely illustrative. The Committee believes that you may preside in cases involving the district attorney’s office provided that your wife has not participated in the case or actually worked on it in any capacity. It does not matter that your wife may be assigned to the district attorney’s office in the adjoining county from where you serve - because she would nevertheless be employed by the same district attorney’s office that appears in your court. To the extent that you are designated to preside over cases in the adjoining county in the event of conflict, you must avoid any case in which your wife has participated or may have worked

on in any way.

Rule 21-211(C) sets forth your disclosure in any case involving the district attorney’s office in which you might otherwise preside. You must disclose on the record in each such case the facts of your wife’s employment and “‘ask the parties and their lawyers to consider, outside the presence of [yourself] and court personnel, whether” they wish to waive your disqualification. Id.

Very truly yours,
James J. Wechsler
Chair

cc: Paul L. Biderman, Esq.
Professor Robert L. Schwartz
Hon. Freddie J. Romero