Must a family law master recuse from cases begun while serving as child advocate and later cases with the same parties?

Plain-English summary

A family law master formerly worked as a child advocate and asked about cases initiated during that work, related later actions, and possible notice or motions for recusal.

The Commission applied former Canon 3E(1)(a)-(b), which addressed prior lawyer service and knowledge of disputed facts. It said recusal was mandatory in matters the master had handled as a lawyer and in subsequent Child Advocate Office actions involving the same parties.

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: Was recusal mandatory in cases the master initiated as advocate?

A: Yes. The Commission expressly required it.

Q: Did it extend to later actions?

A: Yes, to subsequent Child Advocate Office actions involving the same parties.

Background and rules framework

Former Canon 3E(1)(a)-(b) addressed disqualification for knowledge of disputed facts and prior lawyer service in the matter. The Commission applied those grounds to the requester’s advocacy role.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E(1)(a)-(b), disqualification for factual knowledge and prior lawyer work.

See also

• WV JIC Advisory Opinion 1995-27: Former child advocate disclosure

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1994-10, 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.

i
JUDICIAL INVESTIGATION COMMISSIO N

Room E-400, State Capitol

Charleston 25305

August 9, 1994
Re: JIC Advisory Opinion 1994-10

Dear
In recent correspond ence to the Judicial Investiga tion Commissio n, you requested an advisory opinion as to whether you should recuse yourself from cases that you initiated as a Child Advocate and would hear as a Family Law Master. You stated in that correspond ence that you are the Family Law Master for Region and you had served as the Child Advocate
for Region serving - · and Counties.
You asked if a recusal were mandatory would it apply only to the initial action or would it apply to all subsequen t actions brought by the Child Advocate Office that involved the same parties. You inquired if the recusal were not mandatory should the parties and their counsel be advised in writing of their right to request a recusal. And, you asked if a recusal were sought whether it would be mandatory , voluntary , or should be referred to the Circuit Judge for resolution .
After reviewing your request, the Commissio n has determine d that the questions which you have raised are addressed by the relevant language contained in Canon 3 of the Code of Judicial Conduct. canon 3 states in pertinent part:
CANON 3
A Judge Shall Perform the Duties of
Judicial Office Impartial ly and Diligently

• 2 - August 9, 1994

E. Disqualification.
(1) A jud9e shall disqt1.aliff himself or herself in a proceeding in which the judges impartiality mi9ht reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a ~arty•s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(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 it;
This language in Canon 3E of the Code of Judicial Conduct would require you to disqualify yourself in those actions in which you served as a laW¥er in a matter in controversy or a lawyer with whom you previously practiced law served during such association as a lawyer concerning the matter and in cases in which you have personal knowled9e of disputed evidentiary facts concerning the proceeding.
As you state in your letter, while you served as a Child Advocate you represented the interests of the State and the best interest of the child in a proceeding under the statutory authority set forth in West Virginia Code. Canon 3E (1) of the Code of Judicial conduct reqt1.ires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. Because of your role as an advocate in your former employment, your im~artiality would be questioned in those cases which you initiated. See~- State v. Flint, 301 S.E. 2d 765 (W. Va. 1983); Louk v. Haynes, 159 w. Va. 482, 222 S.E. 2d 780 (1976).
The Commission feels that recusal in these cases would be mandatory and would be required in any subsequent action brou~ht by the Child Advocate Office that involved the same ~arties. It is hoped that this opinion fully addresses those issues which you have raised. If you have further questions regarding these matters, do not hesitate to contact the commission. ery tr yours,
~

· .Ir, Chairman
FLF,II/bl
Enclosure