Must a family judge recuse whenever a former law-firm colleague, former client and campaign committee member appears?

Plain-English summary

A child-support agency lawyer routinely appeared before a family judge. Decades earlier, the lawyer had been an associate at the judge’s firm; the judge later represented the lawyer briefly in a domestic matter; and the lawyer had served on the judge’s campaign committee.

The Commission found the judge was not disqualified from the lawyer’s cases on those facts. It nevertheless required full relationship disclosure and compliance with Family Court Rule 58 and Trial Court Rule 17 where applicable.

In practice

The opinion rejects per se recusal while requiring disclosure of the prior professional and campaign relationships.

Common questions

Q: Is the judge automatically disqualified?

A: No. The Commission found no blanket disqualification on the stated facts.

Q: What must be disclosed?

A: The nature of the judge’s prior relationship with the appearing lawyer.

Background and rules framework

Rule 2.11(A) governs reasonably questioned impartiality, and Rule 2.11(C) addresses disclosure and waiver. The Commission discussed Brown v. Dietrick and Tennant in applying a case-specific standard.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Court rules:

• Family Court Rule 58 and Trial Court Rule 17, disqualification procedure.

Cases:

• State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), case-specific recusal.
• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), objective recusal and disclosure.

See also

• WV JIC Advisory Opinion 2017-13
• WV JIC Advisory Opinion 2017-21

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-12, 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

May 8, 2017

Re: JIC Advisory Opinion 2017-12

Dear

Your request for an advisory opm1011 was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: You were elected to your position in May 2016 and took office on January 1, 2017. Lawyers for the local WVDHHR/Bureau for Child Support Enforcement ("BCSE") routinely appear before you. For a couple of years in the 1990s, one of the lawyers worked as an associate in a law firm where you were a paiiner. In 2015, you briefly represented the same lawyer in a domestic matter, appearing at one hearing that lasted for approximately one hour. More recently, the lawyer served on your campaign committee for Family Comt Judge. You want to know if you are disqualified from handling any cases involving this BCSE attorney.

To address your question, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which provides in pertinent part:

A judge shall disqualify himself or herself in any proceeding in which the judge's impatiiality might reasonably be questioned, including but not limited to the following circumstances:

JIC Advisory Opinion 2017- 12
May 8, 2017
Page 2 of 4

(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.

(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic pa1tner of such a person is (a) a patty to the proceeding or an officer, director, general partner, managing member, or trustee of a party, (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(l ), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or comt personnel, that the judge should not be disqualified, the judge may pmticipate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

Comment 2 to the Rule notes that "[a] judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed." Co1mnent 5 states that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification."

When a question of disqualification arises an analysis must be made of when a current or former relationship causes a reasonable questioning of a judge's impartiality.

JIC Advisory Opinion 2017-12
May 8, 2017
Page 3 of 4

In State ex rel. Brm11n v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit comt was correct in holding that a search wanant issued by a magistrate was void because the magistrate was married to the Chief of Police and one of his officers had obtained the warrant. The Court held that in any criminal matter where the magistrate's spouse was involved the magistrate would be disqualified from hearing that matter. The Comt declined to extend a per se rule to other members of the police force. The fact that the magistrate's spouse was the chief of police of a small agency did not automatically disqualify the magistrate who could be otherwise neutral and detached from issuing a warrant sought by another member of the police force.

In Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), the Court held that a judge should disqualify himself or herself from any proceeding in which his impartiality might reasonably be questioned. The Comt noted that the avoidance of the appearance of impropriety is as important in developing public confidence in the judicial system as avoiding actual impropriety and that the judge should take appropriate action to withdraw from a case in which the judge deems himself or herself biased or prejudiced. Tennant cited the commentary to former Canon 3E(l) which states that a judge should timely disclose on the record information which he/she believes the parties or their lawyers might consider relevant to the question of disqualification. Litigants and counsel should be able to rely on judges complying with the Code of Judicial Conduct. There is no obligation imposed on counsel to investigate the facts known by the judge which could possibly disqualify the judge. The judge has a duty to disclose any facts even if the judge does not feel that they are grounds for disqualification sua sponte.

Tennant also addressed the rule that a judge has an equally strong duty to sit where there is no valid reason for recusal. In so doing, the Court set forth a balancing test between the two concepts. While giving consideration to the administration of justice and the avoidance of the appearance of unfairness, a judge must also consider whether cases may be unfairly prejudiced or delayed or discontent may be created through unfounded charges of prejudice or unfairness made against the judge. The Court noted that the standard for recusal is an objective one. Facts should be viewed as they appear to the well-info1med, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, it is the decision of the Commission that you are not disqualified from handling cases involving the BCSE attorney. However, the Commission is of the opinion that you should fully disclose the nature of the relationship with the attorney and follow the tenets of Rule 58 of the Rules of Practice and Procedure for Family Court and West Virginia Trial Court Rule 17 where applicable.

JIC Advisory Opinion 2017-12
May 8, 20 17
Page 4 of4

We hope this opinion fully addresses the issue which you raised. If there is any fmther question regarding this matter do not hesitate to contact the Commission.

Sincerely,

Ronald E. Wilson Chairperson
Judicial Investigation Commission

REW: tat