Must a judge recuse when the judge's law clerk hires a lawyer who appears in pending cases?

Plain-English summary

The judge's law clerk retained an attorney for a personal legal matter. That attorney regularly practiced before the judge. The judge had reassigned newly filed cases involving the attorney and asked about older matters already pending before the clerk hired counsel.

The committee said the judge should immediately screen the clerk from all cases involving the retained attorney. It reasoned that a law clerk's close work with a judge can affect the perception of judicial independence, and that the screen protects against an appearance of outside influence.

The opinion distinguishes the clerk's screening from the judge's own disqualification. It concludes that the clerk's relationship with the retained attorney does not, by itself, require the judge to leave the older pending cases once the clerk is completely screened. The judge denied actual bias or prejudice, and the committee found no mandatory Rule 2.11(A) disqualification on the stated facts.

Because the opinion found disqualification unnecessary with the screen, it also found the Rule 2.11(C) disclosure and waiver procedure unnecessary. The judge could still elect to use that procedure; the committee described that choice as discretionary and explained that the parties and lawyers would consider waiver outside the judge's presence.

In practice

The holding concerns cases pending before the law clerk hired the attorney. It conditions the judge's continued participation on screening the clerk from every matter involving that attorney. The committee also recommended that the judge not discuss those matters with the clerk.

Common questions

Q: Must the law clerk be screened from cases involving the clerk's attorney?

A: Yes. The committee says the judge should immediately screen the clerk from all such cases.

Q: Must the judge leave cases that were already pending before the clerk hired counsel?

A: No, under the opinion's stated facts, the judge may continue to preside if the law clerk is screened from every case involving that attorney.

Q: Is Rule 2.11(C) disclosure and waiver mandatory here?

A: No. The committee says it is unnecessary after the clerk is screened, although the judge may choose to disclose and seek a waiver through that procedure.

Background and rules framework

The opinion applies Wyoming Code of Judicial Conduct Rules 1.2 and 2.4(B) on public confidence and outside influence, Rule 2.7 on a judge's responsibility to decide assigned matters, and Rule 2.11(A) and (C) on disqualification and waiver. It also cites Rule 2.2 on impartial performance of judicial duties.

Citations and references

Wyoming Code of Judicial Conduct:

• Canons 1 and 2, judicial independence and duties.
• Rules 1.2, 2.2, and 2.4(B), public confidence, impartiality, and outside influence.
• Rule 2.7, responsibility to decide assigned matters.
• Rule 2.11(A) and (C), disqualification and discretionary waiver procedure.

See also

No sibling opinions yet indexed.

Source

• Landing page: Judicial Ethics Advisory Committee opinions
• Original PDF: Advisory Opinion 2019-02