Could a judge hear civil cases against a person prosecuted during the judge’s earlier prosecutor service?

Plain-English summary

A circuit judge asked about two civil cases whose defendant had also faced criminal proceedings while the judge was county prosecuting attorney.

The Commission applied former Canon 3E(1)(b) on prior lawyer service and concluded that continuing to preside in these civil matters was inappropriate. It said the Canon’s reasoning extended to these facts even though earlier JIC opinions had addressed criminal or quasi-criminal matters.

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 judge continue with the two civil cases?

A: No. The Commission concluded that the judge should not preside.

Q: Did the civil posture change the conclusion?

A: No. The Commission said the prior-lawyer-service Canon extended to the described civil matters.

Background and rules framework

Former Canon 3E(1)(b) addressed disqualification where a judge had served as lawyer in the matter in controversy, or related specified prior practice or witness roles. The Commission applied it to the described former-prosecutor situation.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E(1)(b), prior lawyer service and disqualification.

See also

• WV JIC Advisory Opinion 1994-10: Former child advocate cases

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1993-20, 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

September 17, 1993
JIC Advisory Opinion 1993-20

Dear Judge

Your recent letter to the Judicial Investigation Commission in which you sought an advisory opinion was reviewed by the Commission at its most recent meeting. In that corresponden ce you requested an advisory opinion as to whether you must voluntarily recuse yourself from two pending civil cases currently assigned to your division of the County Circuit Court. You stated that in both civil cases the defendant had also been a defendant in criminal proceedings while you were Prosecuting Attorney for County.

Based upon the representatio ns made in your letter as well as a review of the Code of Judicial Conduct and other advisory opinions issued by the Commission, the Commission feels that your continued presiding in these cases would be inappropriat e. Canon 3E(l) (b) states in pertinent part:

CANON 3
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY

E. Disqualifica tion.

The Honorable

• 2 - September 17, 1993

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited
to instances where: -

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning; • . . .
The language contained in this Canon would prohibit you as circuit Judge from presiding in these cases.
Also enclosed for your review are advisory o~inions previously issued by the Commission on matters similar to your situation. While you are involved in civil cases and the advisory opinions address criminal matters or quasi- criminal matters, the Commission felt that the language contained in the Canon would extend to your facts as well.
It is hoped that this opinion adequately addresses the concerns which you have raised. If there is any further question concerning these matters, do not hesitate to contact the Commission.

Chairman
FLF,II/bl
Enclosures