Must a family court judge recuse from a custody case after an initial consultation with one party before taking the bench?
Apply this to your situation
This page answers the general question as of 2009. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
Before becoming a family court judge, the judge had an initial custody consultation with the father in a case later filed through another lawyer. The judge did not remember the meeting; all parties and counsel agreed to the judge hearing the case.
The Commission applied former Canon 3E and advised recusal. It said the consultation likely exposed the judge to disputed evidentiary facts despite the lack of memory. It also said the then-current Code did not allow waiver of an existing conflict.
In practice
The prior consultation itself drove the recusal advice, and party agreement did not cure the conflict under the Code applied in 2009.
Common questions
Q: Does lack of memory avoid recusal?
A: No. The Commission still advised recusal.
Q: May party agreement waive the conflict?
A: The opinion says the former Code provided no waiver for an existing conflict.
Q: Why did the consultation matter?
A: The judge likely learned disputed facts from a party before taking the bench.
Background and rules framework
Former Canon 3E(1)(a) and (b) address reasonable questions about impartiality, knowledge of disputed facts, and prior legal work in the matter.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E(1)(a) and (b).
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-06, 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
March 6, 2009
Re: JIC Advisory Opinion 2009-06
Dear Judge
In a recent letter to the Judicial Investigation Commission you asked for an advisory opinion. You asked whether you are disqualified from presiding in a custody case pending before you. The parties are the parents of one minor child. On March 18, 2008, the father had an initial consultation with you while you were in private practice. You have no memory of the consultation. On May 12, 2008, the father filed for custody through a different attorney. On January 1, 2009, you became Family Court Judge for the Family Court Circuit. You asked whether the initial consultation approximately one year ago disqualifies you from hearing the
Case.
To address the question which you have raised, the Commission has reviewed Canon 3E 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.
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;
March 6, 2009
Page Two
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law serving during such association as a lawyer concerning the matter, or the judge has been a material witness concerning
ith...
After reviewing the language contained in Canon 3E, it is the opinion of the Commission that you should not continue to hear this matter. While you did not become counsel of record in the case, you did have an initial consultation with one of the parties and in all probability learned disputed evidentiary facts concerning the case. While you say you cannot remember the consultation, it is the position of the Commission that you should recuse yourself from this matter because of the consultation.
You mentioned in your letter that the parties and their respective counsel agree for you to hear the case. The Code of Judicial Conduct does not provide for the waiver for any conflict that may exist. Ifa judicial officer has a conflict in the matter then that officer must be recused from
the case.
It is hoped that this opinion fully addresses the question which you have raised. If there is any further question regarding this matter do not hesitate to contact this office.
Very truly yours,
Nixa.
Fred L. Fox, I, Chairperson
Judicial Investigation Commission
FLF:nb
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