May a family court judge appoint lawyers from the judge’s former nonprofit employer to represent children?
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This page answers the general question as of 2006. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A newly appointed family court judge had previously worked for a nonprofit that represented children. The judge asked whether attorneys still employed there could receive custody-evaluator, guardian-ad-litem, or child-counsel appointments.
The Commission permitted their appointment under former Canon 3C(4) if the judge used a fair and equal system giving all interested attorneys who practiced before the court access to those roles.
In practice
The opinion allowed former-employer attorneys into the appointment pool; it required impartial and merit-based selection through a fair system open to other eligible lawyers.
Common questions
Q: Were the former employer’s lawyers categorically excluded?
A: No. The Commission permitted their appointment under the stated fair-system condition.
Q: What system did the opinion require?
A: A fair and equal system allowing all attorneys practicing before the judge who wished to serve in those roles access to appointment.
Q: Which former Canon governed?
A: Canon 3C(4), on impartial appointments, merit, nepotism, and favoritism.
Background and rules framework
Former Canon 3C(4), quoted by the Commission, required appointments based on merit without nepotism or favoritism. The request also identified West Virginia Code sections 48-9-301 and 48-9-302 as the appointment provisions.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3C(4).
Statutes: West Virginia Code §§ 48-9-301, 48-9-302.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2006-09, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
Post Office Box 1629
Charleston, West Virginia 25326-1629
(304) 558-0169 • FAX (304) 558-0831
August 9, 2006
Re: JIC Advisory Opinion 2006-09
Dear
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. In that correspondence you stated that you have been appointed as Judge of the Circuit Family Court. You were employed by a nonprofit legal services agency that represents children in both circuit court and family court. Employees of that agency regularly were appointed by the family court judge to serve as custody evaluator, guardian-ad-litem or attorney for the child pursuant to West Virginia Code §48-9-301 & 302. You asked as a Family Court Judge whether you would be precluded from appointing the attorneys who work for your former employer to represent children pursuant to the referenced West Virginia Code sections.
To address the question which you have raised, the Commission has reviewed Canon 3C(4) of the Code of Judicial Conduct. That Canon states in relevant part:
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 approve compensation of appointees beyond the fair value of services rendered.
August 9, 2006
Page Two
Based upon the language contained in that Canon, it is the opinion of the Commission that you could appoint attorneys who work for your former employer to represent children pursuant to the referenced West Virginia Code sections. You would need to do so based on a fair and equal system allowing access to all attorneys who practice before you and who wish to serve in those roles to be appointed. As long as you made the appointments under such system and within the confines of the language contained in Canon 3C(4) of the Code of Judicial Conduct you would not be precluded from appointing attorneys of your former employer.
It is hoped that this opinion fully addresses the question which you have raised. If you have any further question regarding this matter, do not hesitate to contact the Commission.
Very truly yours,
Fred L. Fox, II, Chairperson
Judicial Investigation Commission
FLF,II:nb
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