Must a family law master disqualify when the master’s spouse’s associate serves as guardian ad litem in a case?
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This page answers the general question as of 1996. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The official archive labels this PDF 1996-06, while the opinion’s own header calls it 1996-01. A family law master asked whether a divorce case required disqualification because an associate at the master’s spouse’s law office had been appointed guardian ad litem for a defendant.
Applying former Canon 3E(1) and its commentary, the Commission said the master had to disclose the relationship on the record so parties and counsel could decide whether to move for disqualification. It concluded that the master was not disqualified automatically.
Currency note
This opinion was issued in 1996, 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 disqualification automatic?
A: No. The Commission said the family law master was not disqualified per se.
Q: What disclosure was required?
A: The master had to disclose on the record that the spouse’s associate served as guardian ad litem.
Background and rules framework
Former Canon 3E(1) required disqualification when impartiality could reasonably be questioned. Its commentary required disclosure of relevant information even where the judge saw no real basis for recusal.
Citations and references
West Virginia Code of Judicial Conduct (former):
- Canon 3E(1) and commentary, disqualification and disclosure.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 1996-01, 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
February 19, 1996
Re: JIC Advisory Opinion 1996-01
Dear
Your letter to Counsel for the Judicia l Investig ation Coll\ll\iss ion was reviewed by the Commiss ion at its recent meeting . In your letter you stated that you are one of two family law masters for Region 1. You further indicate d that one of the associat es in your husband 's law office has been appointe d guardian ad litem for a defenda nt appearin g in a divorce action schedule d on your docket. You asked whether you are required to disqual ify yoursel f from the proceed ing since your husband 's associa te is acting as a guardian in the matter.
As you state in your letter Canon 3E of the Code of Judicia l Conduct addresse s the question of disqual ificatio n. Canon 3E(l) states:
CANON 3
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY
E. Disqual ificat'io n. - (1) A judge shall disqual ify himself or herself in a proceed ing in which the judge's imparti ality might reasonab ly be question ed, ...
- 2 - February 19, 1996
The commentary to this section of canon 3 also states that "a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualificatlon." The language set forth in this canon and recent case law require you to disclose on the record the fact that your spouse's associate is serving as a guardian ad litem in this matter. The parties and their attorneys would then be able to make an informed decision on whether to file a motion to disqualify you from hearing the case. S.U Brown y. Qietrick, 191 w. Va. 169, 444 S.E.2d 47 (1994): Tennant v. Marian Health case Foundation. Inc., 194 w. va. 97, 459 s.E.2d 374 .,..,_,...., tioai:::) .
The holding in Brown would suggest that you are not disqualified per se from hearing the case. The holding in Tennant placed the burden of disclosing relevant information concerning the question of disqualification on the ~udicial officer and not counsel. While you are not disqualified per se from hearing the matter you must disclose the fact that your husband's associate is serving as a guardian ad litem.
If rou have any other question regarding this matter, do not hesitate to contact the Commission.
tru! ;rs,
Fre L. ~ ' II, Chairman
FLF,II/bl
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