May a judge attend a daughter's criminal proceedings solely to offer emotional support?

Plain-English summary

A judge asked whether the Code of Judicial Conduct allowed attendance at proceedings on criminal charges against the judge's adult daughter. The judge wanted to offer emotional support and did not plan to speak to the presiding judge or take part in the case. The committee assumed the shared uncommon surname might make the relationship apparent. Source: Opinion 22-02, p. 1.

The committee considered Rule 21-103's bar on abusing the prestige of office. It distinguished merely being present for parental support from intervening or trying to influence the proceeding. On the facts presented, it did not find the proposed attendance an abuse of judicial prestige. Source: Opinion 22-02, pp. 1–2.

The committee also noted that the judge assigned to the daughter's case retained an obligation to act impartially and to disqualify if that judge's impartiality might reasonably be questioned. It did not decide that judge's recusal on the inquiry presented. Source: Opinion 22-02, p. 2.

In practice

Under this opinion, a judge's presence at the daughter's proceeding for emotional support alone was permitted on the stated facts. The committee's analysis depended on the absence of communication with the presiding judge or intervention in the case. Source: Opinion 22-02, p. 2.

Common questions

Q: Did the committee prohibit a judge from attending the daughter's criminal case?

A: No. It found no abuse of judicial prestige where the judge intended only to offer emotional support and not to intervene. Source: Opinion 22-02, p. 2.

Q: Did the shared surname change the conclusion?

A: The committee assumed the presiding judge might suspect the family relationship because of the uncommon surname, yet still found the proposed attendance permissible on the stated facts. Source: Opinion 22-02, pp. 1–2.

Q: What about the presiding judge's impartiality?

A: The committee pointed to that judge's separate duties to act fairly and to disqualify if impartiality might reasonably be questioned. Source: Opinion 22-02, p. 2.

Background and rules framework

The committee applied New Mexico Rule 21-103 on abuse of judicial prestige and contrasted it with former Rule 21-200's broader wording. It also cited Rules 21-202, 21-211(A)(1), and 21-102 concerning the assigned judge's impartiality and disqualification. Source: Opinion 22-02, pp. 1–2.

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-103, 21-202, 21-211(A)(1), and 21-102; former Rule 21-200 (1995). Source: Opinion 22-02.

Cases:

• In re Naranjo, 2013-NMSC-026, 303 P.3d 849, on an ex parte request by a judge in a relative's case. Source: Opinion 22-02, p. 1.

See also

• NM Judicial Ethics Op. 18-01: Campaign Endorsement and Recusal
• AL Judicial Ethics Op. 96-613: Old Connections and Recusal

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 22-02

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.

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. Kristina Bogardus, 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 issued, Hon. Freddie Romero approved, or endorsed by the New Mexico Supreme Court; Hon. Yvette Gonzales nor are they binding.

Re: AO 22-02

You have asked the Advisory Committee on the Code of Judicial Conduct whether the Code of Judicial Conduct permits you to attend legal proceedings in a case involving criminal charges against your adult daughter. You wish to attend in order to provide emotional support to your daughter; you do not intend to participate in the proceedings in any manner.

The relevant Code provision is Rule 21-103 NMRA, which provides that a judge “shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others.” The Committee assumes that because you and your daughter have the same, uncommon surname that a judge presiding over her proceedings will at least suspect that your daughter is related to you.

By virtue of their position, judges carry with them the prestige of judicial office. They must therefore be careful that their actions do not abuse that prestige. Rule 21-103. Your presence at judicial proceedings invokes this prestige of your judicial office. The Code recognizes, however, that not all actions of a judge improperly invoke the judge’s position. Notably, the language of Rule 21-103 was modified in the most recent revision of the Code effective January 1, 2012. Previously, the 1995 version of Rule 21-103 provided that a judge could not “lend the prestige of judicial office to advance the private interest of the judge or others.” Rule 21-200 NMRA (1995). The 2012 revision limited prohibited actions to those that “abuse the prestige of judicial office.” Rule 21-103.

Although not an essential element of abuse, a judge’s intent to use the prestige, or influence, of the judge’s position to advance the interest of the judge or the judge’s relative is indicative of an abuse of the prestige of judicial office. Hence, our Supreme Court held in In re Naranjo, 2013- NMSC-026, ¶¶ 4-5, 17, 303 P.3d 849, that a judge’s ex parte telephone call to the judge presiding in a case involving the calling judge’s stepson requesting a bond reduction and release of the judge’s stepson was an abuse of the calling judge’s prestige of judicial office. You have advised the Committee that the sole reason you wish to attend your daughter’s legal proceedings is to support your daughter. You do not intend to communicate with the judge or intervene in the proceedings in any manner. Although, arguably, your mere presence can be viewed as implicitly influencing the judge to act in a favorable manner toward your daughter, by attending, you are not intending to exercise such influence. Rather, as a parent, you seek solely to provide emotional support to your daughter. Under these circumstances that do not indicate an improper intent, the Committee does not believe that you would be abusing the prestige of your judicial office by attending the proceedings.

Moreover, other Code provisions are relevant to the issue. A judge must perform the judge’s duties fairly and impartially. Rule 21-202 NMRA. If an assigned judge does not believe that he or she can act fairly and impartially in the case because of your possible relationship with the defendant, the judge has the obligation to disqualify himself or herself. See Rule 21-211(A)(1) NMRA (“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” including because of a personal bias.). The Code presumes that any judge who does not disqualify himself or herself will act fairly and impartially in the proceeding. See Rule 21-102 (requiring a judge to perform judicial duties fairly and impartially).

James J. Wechsler
Co-Chair

Kristina Bogardus
Co-Chair

Paul L. Biderman did not participate in this opinion.