Did hiring a former prosecutor’s office secretary require a judge to recuse from criminal cases?

Plain-English summary

A judge hired a secretary who had recently worked for the county prosecutor. The prosecutor’s office questioned whether the judge could keep hearing criminal cases. The requester said the secretary had handled no grand jury investigations and very few indictments.

The Commission applied former Canons 3B(1) and 3E(1), which required judges to hear assigned matters unless recusal was required. It found no reasonable question about impartiality or conflict from this secretary’s former job, distinguishing secretarial duties from a prosecutor lawyer’s case preparation and confidential work.

Currency note

This opinion was issued in 1995, 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: Did the secretary’s former job create a conflict?

A: No, on the facts the requester supplied.

Q: What facts mattered?

A: The secretary had handled no grand jury investigations and very few indictments, and the Commission distinguished those duties from an attorney’s work.

Background and rules framework

Former Canon 3B(1) required hearing assigned matters except where disqualification was required; Canon 3E(1) required recusal when impartiality might reasonably be questioned.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3A, judicial duties.
• Canon 3B(1), duty to hear assigned matters.
• Canon 3E(1), disqualification.

See also

• WV JIC Advisory Opinion 1995-07: Spouse at State Police

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1995-04, 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.

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JUDICIAL INVESTIGATION COMMISSION
212 Dickinson Street
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 FAX {304) 558-0831

March 9, 1995

Re: JIC Advisory Opinion 1995-04

Dear
Your letter to Counsel dated March 8, 1995, in which you ask for an advisory opinion has been reviewed by the Judicial Investigation Commission. In that correspondence you state that the Office of the Prosecuting Attorney of County h~~ ~nncern about your presiding over criminal cases in County as a result of your hiring a secretary from the Prosecuting Attorney's office effective January 31, 1995. You indicate that the secretary worked in the Prosecuting Attorney's office from September 1, 1988, until January 4, 1995. She handled no grand jury investigations and very few criminal indictments.
The language contained in canon 3 A and B(l) and Canon 3 Eis relevant to the opinion which you seek based on the facts which you have presented to the Commission. Those sections of canon 3 state in relevant part:
CANON 3

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY
A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties the following standards apply.

• 2 - March 9, 1995

B. Adjudicative Responsibilities.
(1) A judge shall hear and decide matters assigned to the jud9e except those in which disqualification is required.
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . .
The lan9uage set forth in these sections of Canon 3 place a responsibility on a judge to hear and decide all matters assi9ned to the judge except when disqualification is required. The duty to sit on cases is mandated by Canon 3 B(l). Canon 3 E requires a jud9e to disqualify himself or herself from a proceeding in which the judge's impartiality might reasonably be questioned.
Based on the facts which you have presented in your request and on the information contained in the request that your current secretary handled no grand jury investigations and very few criminal indictments, there would not be raised a situation which brought your impartiality into reasonable question. Furthermore, the duties of a secretary would not place her in the same position as an attorney in that office who would be preparing an investigation or case by developing strategies, interviewing witnesses, and receiving confidential information. For these reasons the commission can find no conflict as a result of your current secretary's former employment. If there is any additional question about the issues which you have raised or the opinion of the Commission, do not hesit te to ntact the Commission. yours,

FLF,II/bl
cc: Members, Judicial Investigation Commission