How long must a judge disclose that an appearing lawyer represented the judge in a completed personal injury case?

Plain-English summary

A lawyer had represented a judge once in a personal injury case. The representation ended in May 2022 and the lawyer was paid in full at or near that time. The judge had been disclosing the former representation when the lawyer appeared and asked when disclosure could end.

The Commission reviewed Rule 2.11 on disqualification and disclosure, including its comments, and discussed Brown and Tennant. It concluded that the judge must disclose the representation in cases involving the lawyer for one year measured from the later of the representation’s end or the lawyer’s final payment.

In practice

For the one-time representation described, the opinion measures disclosure from the later of completion or final payment. Its conclusion concerns cases involving the lawyer who represented the judge.

Common questions

Q: When does the one-year period begin?

A: It begins on the later of the date the representation concluded or the lawyer received final payment.

Q: Which appearances require disclosure during that period?

A: The opinion requires disclosure in any cases involving that lawyer during the stated period.

Background and rules framework

Rule 2.11(A) addresses proceedings in which a judge’s impartiality might reasonably be questioned. The opinion quotes Rule 2.11(C) and Comments 2 and 5 and discusses Brown and Tennant before setting the disclosure period.

Citations and references

West Virginia Code of Judicial Conduct:

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

Cases cited:

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

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 2023-03, redacted

Original opinion text

Reproduced from the official redacted PDF for research purposes. 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

January 26, 2023

Re: JIC Advisory Opinion 2023-03

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: You were represented by an attorney in a personal injury case. It was a one-time representation that concluded in May 2022 and the attorney was paid in full at or near that time. You have been disclosing the representation whenever the attorney appears in your courtroom. You want to know how long you must disclose the representation.

To address your questions, the Commission has reviewed Rule 2.11 of the Code of Judicial Conduct which states:

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 2023-03
January 26, 2023
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.

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.

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.

JIC Advisory Opinion 2023-03
January 26, 2023
Page 3 of 3

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 must disclose the representation in any cases involving the lawyer for a period of one year from the date the representation concluded or he/she received final payment whichever is greater. 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