Could a judge appoint a nephew by marriage as defense counsel or hear cases where the nephew appeared?

Plain-English summary

A chief circuit judge responsible for appointing defense counsel asked about a nephew by marriage who was joining a local law firm. Another judge in the two-judge circuit could handle appointments and cases if needed.

Applying former Canons 3C(4) and 3E(1)(d)(ii), the Commission said the requester could not appoint the nephew in any matter and could not sit in proceedings where the nephew represented a party. It noted that the other judge could handle those duties.

Currency note

This opinion was issued in 1994, 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 appoint the nephew as counsel?

A: No. The Commission barred the judge from appointing him in any matter.

Q: Could the judge hear a case where the nephew appeared?

A: No. The Commission said the judge could not sit in that proceeding.

Background and rules framework

Former Canon 3C(4) required impartial appointments without nepotism or favoritism. Canon 3E(1)(d)(ii) addressed disqualification where a relative within the stated degree acted as lawyer.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3C(4), appointments and nepotism.
• Canon 3E(1)(d)(ii), a relative acting as lawyer.

See also

• WV JIC Advisory Opinion 1995-37: Judge’s son practicing in circuit

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1994-05, 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

February 25, 1994

Re: JIC Advisory Opinion 1994-05

Dear
Your correspondence to me in which you seek an advisory opinion has been reviewed by the Judicial Investigation Commission at its recent meeting. In that correspondence you state that you have a nephew by marriage who will becoming an
associate with a
County, West Virginia, law
firm. You state you are the Chief Judge in the Judicial
Circuit which includes
and as such you are
responsible for court appointments of panel attorneys to represent indigent persons charged with criminal offenses. You have no public defender system or office available in your circuit.
You indicate that you are in a two-judge circuit and that another judge is available for all matters and proceedings in which you might be disqualified and that the other judge could also handle the administrative duties of appointment of counsel if necessary.
As you state in your letter Canon 3C(4) and 3E(l) (d)(ii) of the Code of Judicial Conduct control the questions which you have raised. Those two sections of Canon 3 state:
CANON 3

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY c. Administrative Responsibilities.
(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not

• 2 - February 25, 1994

approve compensation of appointees beyond the fair value of services rendered.
. . ..
E. Disqualification.
(1) A judie shall disqualify himself or herself in a proceeding in which the ~udge•s impartiality might reasonably be questioned, including but not limited to instances where: (d) the judge or the judge's spouse, or a person with the third degree of relationship to either of them, or the spouse of such a person:
(ii) is acting as a lawyer in the proceeding.
The language in these pertinent sections of canon 3 address those concerns which you have raised in your letter.
After review of your request for an advisory o~inion and the relevant sections of canon 3 as set forth hereinabove, it is the opinion of the Judicial Investigation Commission that you would be prohibited from appointing your nephew by marriage in any matters. Also, you would be prohibited from sitting as a judge in those proceedings in which he was engaged as an attorney. The Commission feels that the ~rohibitions are mitigated somewhat since there is another Judge in your circuit who could handle any appointment duties and/or sit on cases in which your nephew by marriage was acting as an attorney.
It is hoped that this opinion addresses all of the matters which you have raised. If there is any further question concerning these matters or any other relevant concerns, please feel fr to contact the Commission. ly yours,

Chairman
FLF,II/bl