Must a family judge recuse from every case involving the lawyer representing the judge’s daughter in her divorce?

Plain-English summary

A judge had given money to a daughter for legal counsel in a divorce pending before a different judge. The daughter’s chosen lawyer frequently appeared before the requesting judge.

The Commission found no per se disqualification from cases involving that lawyer or other members of the firm. It directed the judge to disclose the relationship on the record to all parties and follow Trial Court Rule 17 when applicable. Its analysis relied on Rule 2.11, the appearance-of-impropriety standard and Tennant v. Marion Health Care Foundation.

In practice

The opinion requires disclosure in matters involving the daughter’s lawyer while rejecting blanket recusal on the stated facts.

Common questions

Q: Is the judge automatically disqualified from the lawyer’s cases?

A: No. The Commission rejected per se disqualification.

Q: What must the judge disclose?

A: The relationship involving the daughter’s counsel, on the record to all parties, with Trial Court Rule 17 followed where applicable.

Background and rules framework

Rule 2.11(A) governs proceedings where impartiality may reasonably be questioned, and Rule 2.11(C) addresses disclosure and possible waiver. The opinion also cites Rule 1.2 and Tennant on appearance and the objective recusal standard.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.2 and Comment 5, public confidence and appearances.
• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.

Court rules:

• Trial Court Rule 17, disqualification procedure.

Cases:

• Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995), disclosure and objective recusal standard.

See also

• WV JIC Advisory Opinion 2021-12
• WV JIC Advisory Opinion 2021-08

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2017-21, 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

October 19, 2017

Re: JIC Advisory Opinion 2017-21.

Dear

Your recent request for an advisory opm1on was reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: Your daughter is a patty to a current divorce proceeding before another family court judge. She is represented by a lawyer who frequently appears in front of you. Your daughter does not reside in your household. You stated that you "indirectly funded [your] daughter's acquisition of her cmTent and past legal representation." Upon closer inspection, you indicated that you gave your daughter some money to hire the lawyer of her choice. You want to know if you are precluded from presiding over all cases involving your daughter's lawyer and/or members of his fam during the pendency of her divorce.

To address the questions, the Commission has reviewed Rules 1.2 and 2.1 1 of the Code of Judicial Conduct which provides in pertinent part:

Rule 1.2 - Confidence in the Judiciary

A judge shall shall avoid impropriety and the appearance of impropriety.

JIC Advisory Opinion 2017-21
October 19, 2017
Page 2 of4

Rule 2.11- Disqualification

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

(1) The judge has a personal bias or prejudice concerning a pmiy 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 pmtner, or a person within the third degree of relationship to either of them or the spouse or domestic pmtner of such a person is: (a) a party to the proceeding, or an officer, director, general pmtner, 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.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, domestic partner, pm·ent, or child, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or is a party to the proceeding.
(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particulm result or rule in a pmticular way in the proceeding or controversy.
(5) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who pmiicipated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the pmticular matter in controversy; (C) was a material witness concerning the matter; or (d) previously presided as a judge over the matter in another court.

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(l), may disclose on the

JIC Advisory Opinion 2017-21
October 19, 2017
Page 3 of4

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 paiticipation by the judge or court personnel, that the judge should not be disqualified, the judge may paiticipate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

(emphasis added).

Thus, pursuant to Rule 2.1 l(C), the only time a judicial officer should voluntarily disqualify himself oi· herself is when the judge has an actual or perceived personal bias or prejudice concerning a patty or a patty's lawyer, or personal knowledge of facts that are in dispute in the proceeding. Comment 5 to Rule 1.2 notes:

Actual improprieties include violations of law, comt rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impaitiality, temperament, or fitness to serve as a judge.

Meanwhile, Comment 2 to Rule 2.11 states 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." Comment 5 provides 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."

Tennant v. Marion Health Care Foundation, 194 W. Va. 97, 459 S.E.2d 374 (1995) is instructive to the two issues at hand. In Tennant, plaintiff brought a medical malpractice suit against defendant doctors and hospital. In January 1994, the medical malpractice case went to trial. Following the presentation of evidence, the jury found in favor of the defendant. Meanwhile, in March 1993, the law firm representing defendant was retained by the liability ca1Tier for the state to defend the Judge and others in a civil rights claim in federal court. In February 1994, summai·y judgment was granted in the federal case. When the judge received a copy of the federal order, he realized he had a potential conflict and immediately disclosed the nature of the relationship with defense counsel to the patties in the medical malpractice action. The Chief Justice of the Supreme Court of Appeals of West Virginia pe1mitted the judge to recuse himself in the malpractice action and appointed another judge to hear post-trial motions. Following entry of the judgment order, plaintiff filed a motion to set aside the verdict or grant a new trial on the basis that he was prejudiced by the Judge's relationship with defense counsel in the civil rights case. The new judge in the medical malpractice action granted a new

JIC Advisory Opinion 20 I 7-21
October 19, 2017
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trial based on the appearance of impropriety. The defendant appealed the ruling to the Supreme Court which reversed the decision of the trial com1.

The Court held that a judge should disqualify himself/herself from any proceeding in which his/her impaitiality might reasonably be questioned. The Comt noted that the avoidance of the appearance of impropriety is as impo1tant in developing public confidence in the judicial system as avoiding actual impropriety itself and that the judge should take appropriate action to withdraw from a case in which the judge deems himself/herself biased or prejudiced. Tennant cited the commentary to 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 lmown 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 sh·ong duty to sit where there is no valid reason for recusal. In so doing, the Comt set fo1th 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-inf01med, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission finds that a per se disqualification is not required in cases where a party is represented by your daughter's lawyer or other members of his finn. Instead, you should disclose the matter on the record to all parties and follow Trial Court Rule 17 where applicable. It is hoped that this opinion fully addresses the issues which you have raised. If there is any fw.ther question regarding this matter do not hesitate to contact the Commission.

Sincerely,

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat