Could a magistrate hear criminal cases handled by the prosecutor who employed the magistrate’s spouse as secretary?

Plain-English summary

A magistrate’s wife worked as secretary for an assistant prosecutor who would become the prosecuting attorney on January 1, 1993. The magistrate asked about criminal cases prosecuted by that lawyer.

The Commission applied former Canon 3C(1) and Canon 3D. It said the magistrate should not preside over cases involving the prosecutor or the prosecutor’s office unless the relationship was disclosed and the parties and lawyers, independently of the magistrate, agreed in writing that the relationship was immaterial. The signed agreement had to be placed in the case file.

Currency note

This opinion was issued in 1992 under the earlier Judicial Code of Ethics, before West Virginia adopted its 1993 Code and its 2015 Code of Judicial Conduct, effective December 1, 2015. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context and verify the current Code before relying on the letter's conclusion.

Common questions

Q: Could the magistrate hear those criminal cases automatically?

A: No. The Commission required disqualification unless the Canon 3D disclosure and written agreement procedure was followed.

Q: Who had to agree after disclosure?

A: All parties and lawyers, independently of the magistrate, in a signed writing filed in the proceeding.

Background and rules framework

Former Canon 3C(1) addressed disqualification for reasonably questioned impartiality. Former Canon 3D permitted remittal after disclosure and independent written agreement by parties and lawyers.

Citations and references

West Virginia Judicial Code of Ethics (former):

• Canon 3C(1), disqualification.
• Canon 3D, remittal of disqualification.

See also

• WV JIC Advisory Opinion 1993-10: Spouse employed by appearing lawyer

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1992-21, redacted
• Code adoption date: West Virginia JIC 2015 Annual Report

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
Room E-400, State Capitol

Charleston 25305

September 23, 1992
JIC Advisory Opinion 1992-21

·Dear Magistrate
Your letter to
dated August 10, 1992,
was referred to the Judicial Invest..i.g:ation Commission for consideration and re.view. In that correspondence you state that your wife now works as the secretary for who was recently appointed as an assistant prosecuti.ng attorney in County and who will become the prosecuting attorney for that county on January 1, 1993. You asked whether it would be proper for you to preside over criminal cases in which Mr. is acting as prosecutor since your wife is his· secretary.

Canon 3C (1) of the Judicial Code of Ethics would control the respans.e to your inquiry. That section of Canon 3 states:
Canon 3
A Judge Should Perform the Duties of His Office Impartially and Diligently
The judicial duties of a judge take precedenc·e over all his other activities. His judiciai duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

c. Disqualification
(1) A judge should di.squalify himself in a proceeding in which his impartiality might reasonably be questioned • • •

Magistt'3.te
September 23, 1992

Based upon the language contained in this.Canon, it is the op:i.ni.on of the Commission that you should not preside over criminal cases in which Mr. is acting as prosecutor unless the language of Canon 3D is followed.
Canon 3D provides that under certain.circumstances a judge who may be disqualified may instead of withdrawing from the proceeding, disclose the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial, the judge is no longer disqualified and may participate in the proceeding. The agreeme.nt signed by all parties and lawyers shall be incorporated into the file of the proceeding.
After review of your inquiry at its meeting and after an examination of language. contained in the above-mentioned Cano.n, it is the opinion of the Judicial Investigation Commission that absent the disclosure of your relationship and the a9reement in writing of the parties and lawyers after the disclosure is made you could not sit on any cases involving Mr. or his office as prosecutor.
It is hoped that this advisory opinion has answered your inquiry; and if there are any further questions regarding this matter, you contact he Commission.

:c
, II, Chairman

FLF,II/bl