Must a judge recuse from a new case involving the son and former codefendant of a person the judge represented before taking the bench?
Apply this to your situation
This page answers the general question as of 2011. 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 judge had previously represented a criminal defendant who was the father and codefendant of a person now indicted in the judge’s court. The judge said there had been no attorney-client relationship with the current defendant and had told the parties voluntary disqualification might be needed.
The Commission quoted former Canon 3E(1)(a) and (b), covering impartiality, personal knowledge, and earlier work as a lawyer in the matter. It directed the judge to review those provisions against the facts, and said a party could file a recusal motion for handling under the applicable procedure. It did not declare recusal either required or unnecessary on the supplied record.
In practice
The advice is to make a fact-specific Canon 3E assessment and use the motion procedure if a party seeks disqualification.
Common questions
Q: Did the Commission decide that recusal was mandatory?
A: No. It directed a review of former Canon 3E against the case facts.
Q: Had the judge represented the current defendant?
A: The request said no; the judge had represented the current defendant’s father and codefendant.
Q: What if a party moves for recusal?
A: The applicable motion procedure would govern.
Background and rules framework
Former Canon 3E(1)(a) and (b) cover reasonable questions about impartiality, personal knowledge, and prior service as a lawyer 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 2011-02, 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
January 4, 2011
Re: JIC Advisory Opinion 2011-02
Dear Judge
In a recent letter you asked for an advisory opinion. You stated that you have a recently indicted defendant in your court who was a co-defendant of a man you represented before you took the bench in Family Court. The two men were related and charged in a combined indictment. You represented the co-defendant, who happens to be the father of the currently indicted defendant (and co-defendant in the prior case). You have no connection with the newly indicted defendant through an attorney client relationship or otherwise. You have advised the parties that you may have to voluntarily disqualify yourself in this matter.
The Commission has reviewed your request at a recent meeting. During the review the Commission looked at Canon 3E of the Code of Judicial Conduct. Canon 3E stated 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;
The Honorable
January 4, 2011
Page Two
(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 been a material witness concerning Te ses
After reviewing your letter and the relevant sections of Canon 3, the Commission would advise that you review these sections of 3E to determined whether based upon the facts which you currently have before you, your recusal should be made. Since you have advised the parties about the situation, one of them may decide to file a Motion for your recusal and the provisions for handling such motions would them be followed.
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 the Commission.
Very truly yours,
[signature]
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW:nb
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