Could a judge sentence someone the judge represented in a different criminal matter?

Plain-English summary

A judge asked whether the judge could sentence a criminal defendant whom the judge had represented in another criminal matter before taking the bench.

The Commission applied former Canon 3E(1). On the facts supplied, it found no automatic disqualification and no reason the judge could not sentence the defendant. It instructed the judge to disclose the former representation on the record and allow parties and counsel to make appropriate motions.

Currency note

This opinion was issued in 1998, 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 found no automatic disqualification on the stated facts.

Q: What was the judge to disclose?

A: The former representation of the defendant, on the record, with an opportunity for parties or counsel to move as appropriate.

Background and rules framework

Former Canon 3E(1)(a)-(b) addressed disqualification for reasonably questioned impartiality, bias, personal knowledge of disputed facts, and prior legal work in the matter at issue. The opinion distinguished representation in another matter.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 3E(1)(a)-(b), disqualification.

See also

• WV JIC Advisory Opinion 1999-04: Former public defender cases

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 1998-11, 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
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 FAX (304) 558-0831

August 25, 1998

Re: JIC Advisory Opinion 1998-11

Dear

Your letter to the Chairman of the Judicial Investigation Commission was reviewed by the Commission at its recent meeting. In your letter you asked for an advisory opinion regarding whether a judge may sentence a criminal defendant whom the judge represented in another criminal matter when the judge practiced law.

The Commission looked to the relevant language in Canon 3E(l) to address the question which you have raised. That section of Canon 3 says in relevant part:

Canon 3. A judge shall perform the duties of judicial office impartially and diligently.

E. Disqualification. - (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:

(a) the judge has a personal bias or prejudice concerning a party or a party'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 a been a material witness concerning it; ...

The other provisions of Canon 3E set forth specific instances where a judicial officer may have a 12§: se requirement to disqualify in a case. The above cited provisions address a judge's question regarding disqualifications with no perse requirement exists.

August 25, 1998
Page Two

In the situation which you have described there is no~ se requirement that you disqualify yourself. The above cited sections of Canon 3 provided that if a judge has a personal bias or prejudice concerning a party or party's lawyer or personal knowledge of dispute of entry facts concerning a proceeding disqualification may be appropriate. The Commission can find no reason based on the information which you have provided why you may not sentence the defendant whom you represented in another matter while you were practicing law. You should, of course, disclose the former representation on the record and afford the parties and their counsel an opportunity to make any motions they feel are appropriate. If there is any further question regarding this matter, please do not hesitate to contact the Commission.

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