Could a judge keep an indirect rental arrangement involving a lawyer appearing in court and hear a case involving the judge’s brother?

Plain-English summary

A judge owned half an office building and leased that interest to a business partner, who then rented space to a lawyer practicing in the judge’s one-judge circuit. The Commission found the arrangement improper under former Canon 4D(1)(b) because rent paid by the lawyer would build equity for the judge.

The judge also asked about truancy cases involving a brother who worked as a school attendance director. Applying former Canon 3E(1), the Commission said the judge should not hear any matter in which the brother was a party or had to testify. The official index describes a “brother-in-law”; the redacted PDF itself says “brother.”

Currency note

This opinion was issued in 1993, before West Virginia adopted 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 indirect lawyer rental continue?

A: No. The Commission concluded that the arrangement was improper.

Q: When should the judge avoid the truancy case?

A: Whenever the judge’s brother was a party or had to testify, according to the letter.

Background and rules framework

Former Canon 4D(1)(b) addressed ongoing business relationships with lawyers likely to appear before the judge. Former Canon 3E(1) required disqualification when impartiality might reasonably be questioned.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 4D(1)(b), continuing business relationships.
• Canon 3E(1) and commentary, disqualification.

See also

• WV JIC Advisory Opinion 1993-05: Stock with lawyer shareholder

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1993-04, 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
Building 1, Room E400
1900 Kanawha Boulevard, East
Charleston, WV 25305-0834

March 1, 1993

Re: JIC Advisory Opinion 1993-04

Dear

Your recent letter to the Judicial Investigation Commission in which you asked for an advisory opinion has been reviewed by the Commission at its most recent meeting. In that corresponden ce you addressed two issues on which you seek an opinion. The first issue concerned the rental of a building to lawyers who practice before you.

In your letter you indicate that you purchased one-half interest in an office building in September, 1990, and that your partner was an insurance agent. You stated that upon your election as judge you leased your one-half interest in the building to your partner in return for your partner making your one-half payment on the promissory note at the Bank, West Virginia. Your partner has rented space in the building to an attorney who practices in County, You will find enclosed past advisory opinions of the Judicial Investigation Commission which address situations which are analogous to yours.

The language of Canon 4D (1) (b) of the Code of Judicial Conduct states:

CANON 4
A Judge Shall So Conduct the Judge's Extra-Judici al Activities as to Minimize the Risk of Conflict with Judicial Obligations

D. Financial Activities.

• 2 - March lr 1993

(1) A judge shall not engage in financial and business dealings that:

(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.

Based upon the language contained in that Canon the Commission believes that the leasing arrangement which you have described in your letter would be improper. While all of the arrangements for renting the building would be handled by your partner pursuant to your leasing arrangement, you would receive the equity in the asset involving the rental paid by the attorney. Since you have a one-judge circuit, it is likely that the attorney would be appearing before you on frequent occasions.

. The second issue which you discuss in your letter deals with vour brother who is the attendance director for the County Board of Education. In your letter you state that in his capacity he has previously signed the juvenile petitions and testified at truancy hearings. You state that you realize that he may not appear before you as a party, but ask if you would still be allowed to hear cases in which the principal of the school signed the petition and testified at the hearing concerning factual matters even though your brother would still have an overall interest in the outcome of the case because of his position which the Board of
Education.
·

You ask whethec. your brother would be permitted to testify before you concerning dispositional issues. And finally you ask whether a full disclosure to the parties with waivers would have any bearing on the issue.

After discussing the issues which you have raised, the Commission determined that the language in Canon 38 of the Code of Judicial Conduct addressed the questions you have. That Canon states in pertinent part:

CANON 3

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

• 3 - March 1, 1993

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proc"eeding in which the judge's impartiality might reasonably be questioned • • • •

The Canon goes on to set forth various specific instances which apply. However, the commentary to Canon 3E (1) states that under that rule the judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Canon 3E (1) apply.

Based upon the information which you have given and the language and commentary to Canon 3E (1), the Commission believes that any time your brother is a party or has to testify in a matter it would be improper for you to hear the case.

If there is any further question concerning the issues which you have raised, please to not hesitate to contact the Commission.

CRG/bl
Enclosures