Can a new judge hear criminal cases after representing the district attorney personally?
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This page answers the general question as of 2019. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
Before appointment, the judge represented the district attorney in a public personal criminal matter that remained on appeal. The judge had withdrawn and had no remaining interest in that matter. [Source: Opinion 19-02, p. 1]
The committee said the recent attorney-client relationship created an appearance affecting impartiality. It said the judge should not preside when the district attorney personally appears. Cases handled by assistants could avoid disqualification if the district attorney was insulated from direct prosecution and supervision and no general policy directive from that official was at issue. [Source: Opinion 19-02, p. 2]
If the office could provide that insulation, criminal defendants assigned to the judge had to receive notice of the prior representation, how the office would handle the case, and an opportunity for a different judge apart from a peremptory challenge. The committee considered written notice from the clerk sufficient and did not require formal remittal under Rule 21-211(C). [Source: Opinion 19-02, pp. 2–3]
In practice
The opinion ties the ability to hear assistant-prosecutor cases to the district attorney’s insulation and notice to defendants. It treats a personal appearance by the district attorney separately. [Source: Opinion 19-02, pp. 2–3]
Common questions
Q: May the judge hear a case where the district attorney personally appears?
A: The committee said the judge should not preside. [Source: Opinion 19-02, p. 2]
Q: Is a formal Rule 21-211(C) remittal needed for insulated cases?
A: The committee said written notice from the clerk to defendants would be sufficient in the circumstances it described. [Source: Opinion 19-02, p. 3]
Background and rules framework
The opinion applies New Mexico Code of Judicial Conduct Rule 21-211(A) and discusses remittal under Rule 21-211(C). [Source: Opinion 19-02, pp. 2–3]
Citations and references
New Mexico Code of Judicial Conduct:
- Rules 21-211(A), 21-211(C). Source: Opinion 19-02.
See also
Source
- Landing page: New Mexico judicial advisory opinions
- Original PDF: Advisory Opinion 19-02
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.
' SUPREME COURT LAW LIBRARY
fy SANTAFE, NEW MEXICO
Advisory Committee on the Code of Judicial Conduct
Hon. James J. Wechsler, Co-Chair (ret.) This is an advisory opinion by the New Mexico Advisory Hon. Julie J. Vargas, Co-Chair Committee on the Code of Judicial Conduct, Advisory Paul L. Biderman, Esq. opinions are responses to inquiries from judges seeking Prof. Robert L. Schwartz guidance on judicial ethics questions. They are not Hon. Freddie J. Romero issued, approved, or endorsed by the New Mexico Hon. Sandra W. Engel Supreme Court; nor are they binding.
March 29, 2019
You were recently appointed a district judge. In your law practice you represented the district attorney of your district in a personal criminal matter that attracted substantial public attention. The case was mostly resolved, but one issue is now on appeal in the Court of Appeals. You have withdrawn from the case, and the — district attorney will be hiring new counsel. You no longer have any interest, financial or otherwise, in the maiter.
While you were practicing before the district court in criminal matters, the district attorney arranged for the deputy district attorney to supervise any case in Which you were an attorney, removing the district attorney from involvement in your cases. The deputy has since left the office. You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct precludes you from handling a criminal docket as a district judge because of your representation of the district attorney, and, if not, the conditions that may apply to your situation.
Rule 21-211(A) NMRA provides that "[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned . . . ." The Committee believes that your attorney-client relationship with the district attorney in a recent, highly-publicized, personal criminal matter that is still pending on appeal gives rise to an appearance that affects your impartiality in cases prosecuted by the district attorney. The Committee thus believes that you should not preside over any case in which the district attorney personally appears.
Generally, when a judge is disqualified because of a relationship with an attorney who has supervisory authority over other attorneys, the judge is also disqualified from hearing cases of the supervised attorneys. However, if it is possible in the district attorney's office to insulate the district attorney in such a manner so that the district attorney is not involved in supervising assistant district attorneys who handle cases before you as district judge, the Committee believes that you can avoid disqualification in those cases, provided that your court provides notice to criminal defendants as discussed below. The Committee understands that it may not be feasible to insulate the district attorney from all aspects of a criminal prosecution because the district attorney makes policy decisions that may have general applicability to cases in the district attorney's office. The Committee believes, however, that you can avoid disqualification if the district attorney is not directly involved in the prosecution or supervision of the case before you, provided that no general policy directive of the district attorney is raised as an issue in the case.
As to notice if the district attorney’s office is able to insulate the district attorney from your cases, the Committee believes that the defendants in criminal cases assigned to you must receive notice of: (1) your previous attorney-client relationship with the district attorney; (2) the manner in which their case will be handled by the district attorney's office; and (3) the opportunity to have another judge assigned to
2
their case exclusive of the procedure for exercising a peremptory challenge set forth in Rule 5-106 NMRA. Because the nature of your disqualification involves the district attorney's office, the Committee does not believe that a formal remittal as set forth in Rule 21-211(C) is needed. See Rule 21-211(C) (permitting a judge subject to disqualification to disclose the basis on the record and allowing the parties to waive disqualification). Instead, the Committee believes that it would be sufficient if the clerk of the court provided written notice to the defendants with the notice designating you as the judge.
pa
James J. Wechsler
Co-Chair
Judge Julie J. Vargas did not participate in this opinion.
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