May a magistrate hear cases in which the magistrate assistant’s attorney spouse is counsel?
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
A circuit judge asked whether a new magistrate could hear cases involving the magistrate assistant’s husband, a criminal defense lawyer, after the previous magistrate had avoided them.
The Commission’s majority said the magistrate should always disclose the relationship. Recusal was not automatic, but had to be decided in each case after disclosure. The letter also records a minority view that it would never be proper for the attorney to practice before that magistrate.
In practice
The majority rule calls for disclosure and case-specific review; the minority view is identified as such in the source.
Common questions
Q: Must the relationship be disclosed?
A: Yes, whenever the lawyer appears.
Q: Is recusal automatic under the Commission’s majority view?
A: No. It is assessed case by case.
Q: Was the Commission unanimous?
A: No. A minority would have barred the lawyer from appearing altogether.
Background and rules framework
Former Canon 3E(1) addresses disqualification when impartiality might reasonably be questioned; its comment supports disclosure of facts parties might consider relevant.
Citations and references
West Virginia Code of Judicial Conduct (former): Canon 3E(1) and its comment.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2009-09, 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
March 23, 2009
Re: JIC Advisory Opinion 2009-09
Dear Judge
You have recently asked for an advisory opinion from the Judicial Investigation Commission. In your letter you stated that one of the newly elected magistrates in your circuit employs, as his magistrate assistant a woman whose husband is an attorney. The assistant’s attorney husband does a significant amount of criminal defense work in both magistrate and circuit court. When the magistrate assistant worked for the previous magistrate, the practice was for that magistrate to not handle cases in which the assistant’s husband served as counsel. The new magistrate wants to know if this is still the required procedure or is this a conflict that may
be disclosed and waived by the parties.
To address the question which you have raised, the Commission has reviewed Canon 3E of the Code of Judicial Conduct. Canon 3E 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...
The commentary to this Canon states that “[a] judge should disclose on the record information that the judge believes the parties or their lawyer’s might consider relevant to the question of disqualification even if the judge believes there is no real reason for disqualification.”
March 23, 2009
Page Two
Based on the language contained in the Canon and the information which you have provided, it is the opinion of the Commission that the magistrate should always disclose the relationship when the attorney appears. Recusal is not absolutely required but the decision must be made on a case by case basis. The magistrate assistant is not the judicial officer involved but the relationship is close enough to require that each case be reviewed after a disclosure has been made. A minority of the Commission felt that it would never be proper for the attorney to
practice before the magistrate.
It is hoped that this opinion addresses the question which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.
Very truly yours,
nie
Fred L. Fox, I, Chairperson
Judicial Investigation Commission
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