How should a judge handle an attorney married to a probation officer, a law clerk living with an attorney, and a former paralegal now on court staff?

Plain-English summary

A circuit judge asked about three staff ties to practicing lawyers. A probation officer’s husband appeared as counsel; the officer was already screened from his cases. A law clerk lived with an attorney. An employee described as an ERO had formerly worked as a paralegal for an appearing law firm.

The Commission approved the probation-officer screening policy and said to disclose the employment relationship to the attorney’s clients or co-defendants. For the law clerk, it applied the same procedures as for a clerk married to an appearing attorney, drawing no distinction based on cohabitation. For the former paralegal, it said the judge need not keep disclosing the past job because the employee did not research or decide cases like a law clerk. If disqualification was sought, the judge should follow the governing motion procedure.

In practice

The three employees receive different treatment based on their roles and relationships; the opinion points to the disqualification procedure for objections.

Common questions

Q: Is screening the probation officer from her husband’s cases enough?

A: The Commission approved that policy and also called for disclosure to relevant parties.

Q: Does cohabitation change the law clerk procedure?

A: No. It applied the procedure used for a law clerk married to an appearing attorney.

Q: Must the former paralegal’s past job keep being disclosed?

A: No. The Commission found no continuing disclosure need for that employee on the described duties.

Background and rules framework

The opinion gives case-specific court staff screening, disclosure, and disqualification-motion guidance. It cites procedures but no numbered Canon or named rule.

Citations and references

Authorities cited: The opinion refers to an earlier JIC advisory opinion on law clerk spouses and to the disqualification motion procedure without identifying either by number.

See also

• WV JIC Advisory Opinion 2011-05
• WV JIC Advisory Opinion 2011-06

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2011-04, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 ¢ FAX (304) 558-0831

March 21, 2011

Re: JIC Advisory Opinion 2011-04
Dear Judge

In a recent letter you asked for an advisory opinion. You asked first about one of your probation officers who is married to an attorney who practices and has offices in : County. You stated among other things, that the policy set by the prior circuit judge which you have continued is that the probation officer cannot work on any cases in which her husband is serving as counsel in any capacity.

You asked whether it is enough to require that the probation office “Chinese Wall” stating that the probation officer and her husband do not have over lapping cases in any capacity is sufficient. The Commission feels that the policy is satisfactory.

You asked whether disclosure needs to be given to any client of the attorney husband or any co-defendant. The Commission feels that disclosure should be given.

You asked whether if required to disclose the relationship in employment of the probation officer what the Commission would direct you to do in the event a party does seek you disqualification. The Commission suggests that you follow the Rule setting forth the procedures to be followed when disqualification of a judge is sought.

The Honorable
March 21, 2011
Page Two

Secondly, you state that your law clerk lives with her significant other, an attorney, and

they are not married.

firm in

You asked if it is enough that the law clerk does not work on any of her significant other’s cases (or his father’s cases)? You asked whether the relationship must be disclosed in any case where the attorney appears before you? And you asked what the Commission would direct you to do in the event a party does seek your disqualification after disclosure of the relationship of employment of the law clerk. The Commission feels that the advisory opinion setting forth the procedures to be followed when the spouse of a law clerk for a circuit judge appears before that judge should be followed in this case as well. The Commission draws no distinction between a law clerk who is married to an attorney and a law clerk who has a significant other and who is living with an attorney. As to the requirements placed on the Court by a Motion to Disqualify, the Rule setting forth the procedures to be followed when a motion for disqualification is made should be followed.

Lastly, you state that your ERO is a para-legal who worked for the past 15-years at a law County. The law firm practices in front of you. Since hiring the ERO you

have disclosed her prior employment in hearings of cases that involve her prior employers. You then give both sides an opportunity to object to you presiding as judge in that specific case. You also privately ask her about her involvement in the cases and if she has actually worked ona specific case you intend to recuse yourself in that particular case.

You asked whether your policy is appropriate. The Commission feels that you do not need a policy in this matter since the ERO is no longer serving as a para-legal and is not in any decision making capacity or involved in doing research or discussing the outcome of any case with you like a law clerk.

You asked how long you must continue to disclose this information. The Commission feels that there is no need to disclose this information. And you asked what the Commission would direct you to do in the event a party seeks your disqualification. Again, the Commission would suggest your follow the rule and procedure set forth when a Motion to Disqualify is made.

The Honorable
March 21, 2011
Page Two

It is hoped that this opinion fully addresses the questions which you have raised. If there is any further question regarding this matter, do not hesitate to contact the Commission.

Very truly yours,

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

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