Can a lawyer appear before a probate judge who employs the lawyer's spouse as a staff attorney?

Plain-English summary

A husband practiced probate law in a county where the probate judge employed the husband's wife as a staff attorney. The question was whether the husband was prohibited from appearing before that probate judge.

The committee concluded a lawyer is not disqualified merely because the judge employs the lawyer's spouse. The Rules of Professional Conduct do not expressly address the situation, but Appellate Court Rule 506 (the Code of Conduct for Staff Attorneys and Law Clerks) requires a staff attorney or law clerk to disqualify himself where his impartiality might reasonably be questioned, including where he is related by blood or marriage to a lawyer in the proceeding. The committee read the inclusion of that standard as indicating that the proper action is to disqualify the staff attorney or law clerk, not the lawyer, to avoid any appearance of partiality when the lawyer and staff attorney are spouses.

The committee added that if the judge does not believe disqualifying the law clerk or staff attorney would be sufficient to avoid an appearance of partiality, the judge may have to consider recusal under the Code of Judicial Conduct (Appellate Court Rule 501); but no rule appears to require disqualification of the lawyer appearing as counsel. It noted practical reasons for this result: automatic disqualification of the lawyer would bar him from nearly all probate work in the county (which has only one probate judge), including uncontested matters, and automatic disqualification of the judge would complicate court administration; disqualifying the law clerk or staff attorney in the affected matters is the least disruptive way to remove the potential taint.

Currency note

This opinion was issued in 1999, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer appear before a judge who employs the lawyer's spouse as a staff attorney?

A: The committee concluded yes: the lawyer is not disqualified simply because the judge employs the lawyer's spouse.

Q: Who is disqualified instead?

A: The committee concluded the staff attorney or law clerk should be disqualified in matters where the spouse is counsel, under Appellate Court Rule 506.

Q: When might the judge need to recuse?

A: The committee noted the judge may have to consider recusal under the Code of Judicial Conduct (Rule 501) only if disqualifying the staff attorney is not sufficient to avoid an appearance of partiality.

Background and rules framework

The opinion turned not on a Rule of Professional Conduct but on Appellate Court Rule 506 (Code of Conduct for Staff Attorneys and Law Clerks), which requires a staff attorney or law clerk related by blood or marriage to a lawyer in a proceeding to disqualify himself, and Appellate Court Rule 501 (Code of Judicial Conduct), governing judicial recusal.

Citations and references

Other authority:

• S.C. Appellate Court Rule 506, Canon 2 (Code of Conduct for Staff Attorneys and Law Clerks): disqualification for blood or marriage relationship to a lawyer in the proceeding.
• S.C. Appellate Court Rule 501 (Code of Judicial Conduct): judicial recusal.

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-02/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 99-02

Husband practices probate law in a county in which the probate judge employs Husband's wife as a staff attorney.

Question:
Is Husband prohibited from appearing before the probate judge?

Summary:
A lawyer is not disqualified from appearing before a judge simply because the judge employs the lawyer's spouse as a staff attorney.

Opinion:
The South Carolina Rules of Professional Conduct, S.C. App. Ct. R. 407, do not expressly address whether a lawyer may appear before a judge who employs the lawyer's spouse. Appellate Court Rule 506, Code of Conduct for Staff Attorneys and Law Clerks, however, provides that a "staff attorney or law clerk shall disqualify himself in a matter in which his impartiality might reasonably be questioned, including but not limited to instances where: ... (4) he is related by blood or marriage ... to a lawyer in the proceeding." S.C. App. Ct. R. 506, Canon 2. The inclusion of this standard in the professional rules governing the conduct of law clerks and staff attorneys suggests that the proper action is to disqualify the staff attorney or law clerk, not the lawyer, in order to avoid any appearance of partiality when the lawyer and staff attorney are husband and wife.

If the judge does not believe that the disqualification of the law clerk or staff attorney would be sufficient to avoid an appearance of partiality, the judge may have to consider whether to recuse himself or herself from consideration of a particular matter under the Code of Judicial Conduct, S.C. App. Ct. R. 501. No rule, however, appears to require the disqualification of the lawyer appearing as counsel.

Although the relationship between a lawyer and the judge's legal staff might suggest the possibility of partiality, the rules resolve that concern in an appropriate manner. If the lawyer were automatically disqualified, the lawyer could do little or no probate work in the county, including even uncontested matters, because a county has only one probate judge. Similarly, if the judge were automatically disqualified, court administration would be complicated by the lack of other probate judges in the county. The least disruptive manner in which to remove the essence of the potential taint is the disqualification of the law clerk or staff attorney in those matters in which the spouse is counsel.