Disqualification: Judge's Spouse Previously Represented a Defendant
December 9, 2016
Your spouse, an attorney engaged in the private practice of law, expects to enter appearances in criminal matters in district courts in the county where you sit. Some, perhaps a majority, of these appearances will be criminal defense appointments made as a result of your spouse's participation in your county's bar advocate program.
You seek guidance on the application of Rule 2.11(A)(2)(b), which requires disqualification in any case in which the judge's spouse(1) "is acting as a lawyer in the proceeding." You acknowledge your obligation to disqualify yourself in a case if your spouse is the current counsel of record. You raise a series of questions regarding instances where your spouse previously represented a defendant, but no longer has an active appointment, and another lawyer has filed an appearance on the case. We offer the following guidance(2).
1. Your spouse is appointed to represent, or hired to represent, a defendant at his arraignment. The defendant defaults at the next scheduled event (e.g., a pre-trial conference). Sometime later, the default is removed, and a new lawyer is assigned to represent the defendant. May you hear the case?
2. Your spouse represented a defendant in a criminal matter and the disposition included a term of probation. The defendant now faces a hearing on a probation violation. A new attorney has been appointed to represent the defendant at this hearing. May you handle the matter?
Answer to Questions 1 and 2: No. Although Rule 2.11(A)(2)(b) prohibits representation where your spouse "is" acting as an attorney, we read that language to cover any known prior involvement of your spouse in a proceeding, even if a different attorney is now appearing in the proceeding or a matter related to the original proceeding (e.g., a probation revocation hearing). This bright line distinction applies even if your spouse's previous role in the case was minor or involved an uncontested matter. Public confidence in the integrity of the judiciary requires that a judge not hear any matter in which the judge's spouse has acted as an attorney(3).
3. Your spouse represented a defendant in a criminal matter. The defendant seeks admission into Drug Court,(4) and the trial judge, probation department, and treatment providers endorse this recommendation. You preside over a Drug Court. May this defendant take part in the Drug Court over which you preside?
Answer: No. The answer is the same as to Questions 1 and 2, above. Public confidence in the integrity of the judiciary requires that a judge not hear any matter in which the judge's spouse has acted as an attorney.
4. Do you have any obligation in a case not being handled by your spouse to review a defendant's file (or ask a clerk to do so) to see if your spouse was ever assigned and filed an appearance?
Answer: Yes. Rule 2.11(A)(2)(b) applies if the judge has actual knowledge that the judge's spouse acted as a lawyer in the proceeding. A judge whose spouse appears in courts where the judge sits must review (or ask court personnel to review) the file for each case to ascertain the identity of the attorney(s) who entered an appearance in the matter. A judge must also disqualify himself or herself if the judge knows or later learns that the judge's spouse has contributed to the preparation of the case, even if the spouse did not enter an appearance.
5. Do you have any obligation to require your spouse to provide a list of names of all defendants your spouse has been appointed to represent (or represented privately)?
6. If you are not initially aware but later become aware that your spouse previously represented a defendant in the case now before you, do you have any obligation to disclose that fact?
Answer: You must disqualify yourself when you learn of your spouse's prior involvement. Rule 2.11 provides that a judge subject to disqualification under this Rule, other than for bias or prejudice under Paragraph (A)(1), may invoke the provisions of Paragraph (C). Paragraph (C) permits a judge to disclose on the record the basis of the judge's disqualification and ask the parties and their lawyers to consider, outside the presence of and without participation by the judge and court personnel, whether to waive disqualification. Although the decision to invoke Paragraph (C) is left to the judge's discretion, we discourage you from seeking a waiver in a matter in which your spouse has had prior involvement. Counsel who regularly appear before you may perceive such an inquiry to be potentially coercive.
7. What is your obligation if you become aware that your spouse previously represented a defendant in a different, unrelated case?
Answer: Many defendants in District Court have prior, unrelated cases, and this fact alone does not warrant disqualification or disclosure. There may be circumstances, however, in which you conclude that disqualification or disclosure may be appropriate. See Rule 2.11, Comments  and .
(1) Rule 2.11(A)(2)(b) applies to 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 person.
(2) Although the Committee is not authorized to answer hypothetical questions, we believe that the scenarios contemplated are sufficiently foreseeable to permit us to advise you.
(3) Comment  to Rule 2.11 states that the "rule of necessity may override the rule of disqualification." One example where the rule of necessity may be invoked is if the judge is the only judge available in a matter requiring immediate judicial action. Where circumstances require an otherwise disqualified judge to take immediate action, the judge "must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable."
(4) All Drug Courts in District Court are post-dispositional.