Lawyer spouse appearing in same jurisdiction

July 13, 2004

Opinion 2004-3

Dear Clerk:

This letter is in response to your June 14, 2004 request for an opinion from the Committee. In your request you relayed the following facts. You are the Clerk of the District Court, where there are two Assistant Clerks who help you conduct show cause hearings. Your spouse is a lawyer who was recently retained on a matter that was scheduled for a show cause hearing in the court where you are the Clerk. You stated that you would not conduct the show cause hearing in that matter, and asked whether one of your Assistant Clerks could hold the hearing, or whether you should request assistance from another court to handle the show cause hearing in which your spouse represents the defendant.

By this letter, the Committee confirms the advice that was provided to you by telephone from the Secretary prior to the show cause hearing. In the view of the members, the provisions of the Code of Professional Responsibility for Clerks of the Courts require that the show cause hearing at issue be conducted by a clerk who is not under your supervision or control. The Committee believes this result is required by the provisions of Canon 4:

"A Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government.
(A) Appearance of Impartiality. A Clerk-Magistrate shall not convey the impression that any person is in a special position to influence the Clerk-Magistrate, and the Clerk-Magistrate should discourage others from suggesting that they are in a position to exert such influence."

As the Committee has observed in a recent opinion, "[t]he purpose of the norms of conduct and practice set out in the Code of Professional Responsibility for Clerks of Court, articulated in Canon 1, is to 'contribute to the preservation of public confidence in the integrity, impartiality, and independence of the courts.' The principles of impartiality that underlie all the Canons, and Canons 4 and 5 in particular, are directed to actual and perceived impartiality." Opinion No. 2003-10 . It is our opinion that a reasonable observer could say that an assistant clerk who is under your supervision and control would not be unbiased in ruling on a matter in which your spouse is involved. Therefore, it is our view that it would be improper under the Code for you to assign to an assistant clerk in your office the adjudication of any matter in which your spouse plays a role. This result is required to preserve the appearance of impartiality that is essential to the public's trust and confidence in our justice system.