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Connecticut Committee on Judicial Ethics
Informal Opinion Summaries

2014-12 (July 15, 2014)
Disclosure/Disqualification; Family
Rules 1.2, 2.4, 2.7 & 2.11
 
Issue:
An appellate level Judicial Official’s relative within the first degree of kinship is a first year associate in a large, multi-office Connecticut law firm which regularly appears before the Judicial Official.  Should the Judicial Official recuse himself or herself when other members of the firm appear before the Judicial Official?
 
Additional Facts:
The Judicial Official had the clerk’s office notify the parties in a multi-party case that to the best of the Judicial Official’s knowledge, the relative was not involved in the case, had no interest that could be substantially affected by the proceedings, did not reside in the Judicial Official’s household, and had no economic interest in the subject matter in controversy or in a party to the proceeding and that the Judicial Official believed that he or she could decide the matter impartially.  A party advised the Clerk’s Office that it objected, citing Canon 2 and Rule 2.11(a)(2)(C) and the Comments to that Rule, as well as noting that the relative’s law firm had represented the party in the trial court and that it was objectively reasonable to question whether the Judicial Official might be influenced by, or could appear to be influenced by, the possibility that the relative’s interests could be affected by the outcome of the proceedings.
 
Response:
Rule 1.2 states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.  The test for appearance of impropriety is 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, impartiality, temperament, or fitness to serve as a judge.” 
 
Rule 2.4 states, in relevant part, that “(b) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.  (c) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge’s judicial conduct or judgment.”
 
Rule 2.7 states that a judge “shall hear and decide matters assigned to the judge except when disqualified by Rule 2.11 or other law.”

Rule 2.11(a) states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned ….”  Two of the specifically identified circumstances requiring disqualification are when the judge knows that the judge’s “spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is … acting as a lawyer in the proceeding … [or] a person who has more than a de minimis interest that could be substantially affected by the proceeding”.   Rule 2.11 (a) (2) (B) and (C).  An additional circumstance requiring disqualification occurs when the judge knows that the judge, “individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.”  Rule 2.11 (a) (3).  Comment (4) to Rule 2.11 states as follows: “The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge.  If, however, the judge’s impartiality might reasonably be questioned under subsection (a) or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under subsection (a) (2) (C), the judge’s disqualification is required.”  Comment (7) to Rule 2.11 states that an appellate level judge is not disqualified from sitting on a proceeding merely because, inter alia, the Judicial Official or the Judicial Official’s spouse, domestic partner, parent, child, or other member of the Judicial Official’s family residing in the Judicial Official’s household is practicing or has practiced law with a firm or attorney who filed an amicus brief in a matter before the Judicial Official.

Rule 2.11 (c) states that a judge subject to disqualification under this Rule, except for bias or prejudice under subsection (a)(1), “may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive the disqualification, provided that the judge shall disclose on the record the basis of such disqualification.  If, following the disclosure, the parties and lawyers agree, either in writing or on the record before another judge, that the judge should not be disqualified, the judge may participate in the proceeding.”

The Connecticut Supreme Court has articulated the following standard for recusal or disqualification of a judge:


The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case.  … “Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s ‘impartiality might reasonably be questioned’ is a basis for the judge’s disqualification….”

Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-746 (1982) (internal citations omitted).

Based upon the information provided for the particular case pending before the Court, the Committee unanimously determined that the Judicial Official is not disqualified subject to the following conditions:

1. The Judicial Official, through the clerk’s office, inquires of the relative or the relative’s firm whether the relative was involved in any manner with the acquisition or representation of the client; has more than a de minimis interest that could be substantially affected by the proceeding; or has an economic interest in the subject matter in controversy or in a party to the proceeding.

2. If the relative was involved in the acquisition or representation of the client, or has more than a de minimis interest that could be substantially affected by the proceeding, the Judicial Official should recuse him or herself or follow the procedure set forth in Rule 2.11(c) to request the parties to consider whether to waive the Judicial Official’s disqualification. 

3. If the relative had no involvement in the acquisition or representation of the client, does not have more than a de minimis interest that could be substantially affected by the proceeding, and does not have an economic interest in the subject matter in controversy or in a party to the proceeding, the Judicial Official is not disqualified.

In reaching its opinion, the Committee considered its opinion in JE 2013-48 and the materials cited therein.

Committee on Judicial Ethics

 

 

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