When may a mental hygiene commissioner’s law partner appear in a guardianship case before another commissioner?
Apply this to your situation
This page answers the general question as of 2019. 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 mental hygiene commissioner asked whether lawyers at the commissioner’s firm could file guardianship cases to be heard by other commissioners.
The Commission relied on Rule 1.2 and JIC Opinion 2014-21. It said the law partner’s appearance would create an appearance of impropriety unless three earlier safeguards were satisfied: the appointment order limits the commissioner to involuntary hospitalization hearings, the commissioner has not served as a guardianship fact-finder, and the commissioner recuses whenever a conflict develops.
In practice
The opinion permits the firm lawyer’s appearance only under the three specific safeguards from the earlier opinion.
Common questions
Q: May the law partner appear before another commissioner?
A: Only if the safeguards from JIC Opinion 2014-21 are satisfied.
Q: What must the appointment order say?
A: It must limit the commissioner’s authority to involuntary hospitalization hearings.
Q: May the commissioner have acted as a guardianship fact-finder?
A: No. The earlier opinion’s conditions require no such fact-finding.
Background and rules framework
Rule 1.2 addresses public confidence and apparent impropriety. The Commission applied the conditions of JIC Opinion 2014-21 to a commissioner whose law partner would appear before another commissioner.
Citations and references
West Virginia Code of Judicial Conduct:
- Rule 1.2 and Comments 3 and 5, impartiality and apparent impropriety.
Other opinions cited:
- JIC Advisory Opinion 2014-21, three conditions on law-firm colleagues in guardianship cases.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2019-07, 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 26, 2019
Re: JIC Advisory Opinion 2019-07.
Dear
Your recent request for an advisory opm10n was reviewed by the Judicial Investigation Commission at its March 22, 2019 meeting. The factual scenario giving rise to your request is as follows:
You are one of three Mental Hygiene Commissioners ("MHC") in Han-ison County. Each MHC reports to a specific Circuit Court Judge. One MHC is a solo practitioner. The other MHC and you are partners in two separate law firms. Each MHC hears guardian/conservator cases on a rotating basis and presides over mental hygiene proceedings when available during the day. Each MHC is also on-call for after-hours hearings four (4) months out of the year.
You want to know if other lawyers in your finn can fi le f,'1.lardianship cases in Harrison County as long as they are heard by another MHC. In JIC Adviso,y Opinion 2014-21, the Commission said that a co-worker may appear in front of another MHC in guardian/conservator cases as long as (1) the appointment order limits the MHC's autho1ity to preside only over involuntary hospitalization heatings; (2) the MHC has not acted as a fact-finder in any guardianship/conservator matter; and (3) the MHC disqualifies himself whenever a confli ct develops."
Based upon the foregoing, the Commission is of the opinion that an appearance of impropriety occurs whenever a law partner of an MHC appears in front of other Commissioners in !,'1.lardianship cases without having first satisfied the prerequisites of JIC Advisory Opinion 2014-21. Rule 1.2 of the Code of Judicial Conduct states that "[a]
judge shall act at all times m a manner that promotes public confidence 111 the independence, JIC Advisory Opinion 2019-07 March 26, 20 19 Page 2 of2
integrity and impartiality of the judiciary, and shall avoid impropliety and the appearance of impropriety." Comment [3) to the Rule notes that "[c]onduct that compromises or appears to compromise the independence, integrity and impartiality of a judge unde1mines public confidence in the judiciary." Comment [5] sets forth the test for appearance of impropriety - "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, impaliiality, temperament, or fitness to serve as a judge." Given your scenario, reasonable minds could perceive that the MHC presiding over the case lacks impartiality because his fellow MHC works for the same firm. Therefore, the Commission finds that a co-worker of an MHC can only appear in guardianship cases if the parameters contained in JJC Advisory Opinion 2014-21 are met.
It is hoped that this opinion fully addresses the issues which you have raised.
Please do not hesitate to contact the Commission if you have any other questions regarding this matter.
Sincerely,
The Honorable Alan D. Moats, Chairperson Judicial Lnvestigation Commission
ADM/tat
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