May a judge hear cases involving and appoint a lawyer representing the judge’s secretary’s son?

Plain-English summary

A judge recused from a juvenile criminal matter involving the judge’s secretary’s son. The secretary was considering retaining a local lawyer who regularly appeared before the judge and took court appointments. The judge asked whether that representation would bar the judge from the lawyer’s other cases or from appointing the lawyer while the juvenile case was pending.

The Commission reviewed Rules 2.11 and 2.13 and discussed Brown and Tennant. It found no automatic disqualification from cases involving the lawyer. It required disclosure in every such case and Trial Court Rule 17 where applicable. The judge could continue appointing the lawyer, provided appointments followed Rule 2.13 and court-appointed attorneys were treated fairly and equitably.

In practice

The opinion separates the secretary’s son’s matter, from which the judge had recused, from other cases involving his lawyer. It requires disclosure in the latter cases and permits established appointments subject to Rule 2.13.

Common questions

Q: Is the judge automatically disqualified from every case involving the lawyer?

A: No. The Commission instead requires disclosure in every such case and Trial Court Rule 17 where applicable.

Q: Can the judge continue appointing the lawyer?

A: Yes, if the appointments comply with Rule 2.13 and court-appointed attorneys receive fair and equitable treatment.

Background and rules framework

Rule 2.11 governs disqualification and disclosure. Rule 2.13(A) requires impartial, merit-based administrative appointments and forbids nepotism, favoritism and unnecessary appointments.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 2.11(A), (C) and Comments 2 and 5, disqualification and disclosure.
• Rule 2.13(A), impartial administrative appointments.

Other rule cited:

• Trial Court Rule 17, procedure where applicable after disclosure.

Cases cited:

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

See also

• WV JIC Advisory Opinion 2023-05
• WV JIC Advisory Opinion 2023-06

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2022-32, redacted

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
WV Judicial Tower - Suite 700 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169

December 15, 2022

Re: JIC Advisory Opinion 2022-32

Dear Judge

Your request for an advisory opinion to Counsel was recently reviewed by the Judicial Investigation Commission. The factual scenario giving rise to your request is as follows: Your secretary's son is a minor and has been charged with a criminal offense as a juvenile. You have recused yourself, and the matter has been assigned to another judge within your circuit. Your secretary is contemplating hiring a local attorney to represent her son. The attorney regularly appears in front of you and accepts criminal appointments in your circuit. You want to know if you are disqualified from presiding over any cases involving the lawyer and whether you are precluding from appointing him to any criminal cases during the pendency of his/her representation of your secretary's son.

To address your questions, the Commission has reviewed Rules 2.11 and 2.13 of the Code of Judicial Conduct which state:

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 party or a party's lawyer, or personal

JIC Advisory Opinion 2022-32
December 15, 2022
Page 2 of 3

knowledge of facts that are in dispute in the proceeding....

(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), 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 JIC participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding.
The agreement shall be incorporated into the record of the proceeding.

Rule 2.13 - Administrative Appointments

(A) In making administrative appointments, a judge:

(1) shall exercise the power of appointment impartially and on the basis of merit; and
(2) shall avoid nepotism, favoritism, and unnecessary appointments.

Comment 2 to Rule 2.11 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." Comment 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. In State ex rel. Brown v. Dietrick, 191 W. Va. 169, 444 S.E.2d 47 (1994), the Court considered whether the circuit court was correct in holding that a search warrant 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 Court 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.

JIC Advisory Opinion 2022-32
December 15, 2022
Page 3 of 3

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 Court 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(1) 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-informed, thoughtful and objective observer rather than the hypersensitive, cynical and suspicious person.

Based upon the foregoing, the Commission is of the opinion that you are not per se disqualified from presiding over cases involving the lawyer. However, you must make a disclosure in each and every case involving the lawyer and follow Trial Court Rule 17 where applicable. Moreover, since the lawyer is already someone who you appoint to cases, you may continue to do so as long as you follow Rule 2.13 of the Code of Judicial Conduct and treat all court appointed attorneys in your jurisdiction in the same fair and equitable manner. The Commission hopes that this opinion fully addresses the issues which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns.

Sincerely,

Alan D. Moats, Chairperson
Judicial Investigation Commission

ADM/tat