Disqualification: Litigants are Clients or Employees of Agency Employing Judge's Spouse
December 9, 2016
You have requested updated guidance regarding Opinion No. 2003-04 in light of the 2016 Code of Judicial Conduct. In addition, you have provided updated facts concerning your spouse's current employer and her current job responsibilities.(1)
At the time of the prior opinion, an acquiring agency had acquired your wife's employer. Your spouse continues to be employed by that acquiring agency (the "Agency").
The Agency has an approximate $86 million budget and continues to provide services such as individual, family, group and couples therapy; parental education and support; substance abuse assessment and treatment; medication, prescription and monitoring; community education; psychological testing and psychiatric assessment; residential care; and forensic services. The Agency's offerings include services for individuals with developmental disabilities.
Your spouse is currently Senior Program Manager for Developmental Services and is supervised by a senior vice-president of the Agency. She is a salaried employee of the Agency, and is directly involved in the provision of services only in the area of developmental disabilities. She is not an officer, director, or trustee of the Agency. Your spouse has over-all responsibility for approximately $10 million of the Agency’s budget, two hundred employees, five hundred clients, twenty-four residential sites, and three offices.
As a Probate and Family Court judge, you may hear matters in which a party is a client or employee of the Agency. You write "[s]uch involvement may include existing relationships, new services through court referrals; participation or compliance with service referrals and evaluations. Such cases include petitions for guardianship, domestic relations (including divorce, paternity, and abuse prevention actions), and termination of parental rights and other child welfare matters."
You request answers to a series of questions, which are largely the same as the questions you posed in 2003.
We begin by noting that Rule 2.11 of the 2016 Code of Judicial Conduct clarified but did not substantively change the disqualification provisions in the 2003 Code of Judicial Conduct. See Final Report of the Committee to Study the Massachusetts Code of Judicial Conduct. In general, the 2016 Code incorporates the black letter rules from the 2003 Code, makes explicit some of what was implicit in that Code, and provides additional examples and clarifications.(2) Our answers today are consistent with the advice provided by Opinion 2003-4. We offer the following guidance.
1. Are you permitted to hear cases in which the litigant is an employee of the Agency, but is not directly or indirectly supervised by your spouse?
2. Are you permitted to hear cases in which the litigant is an individual served by the Agency, but is not directly or indirectly served by your spouse?
Answer to Questions 1 and 2: Yes. Recusal is not required by Rule 2.11(A)(2)(a) because your spouse is not an officer, director, general partner, managing member, or trustee of the Agency. Nor is recusal required by Rule (A)(2)(c) because your spouse is a salaried employee whose income is not contingent on the outcome of service referrals or the resolution of specific cases. The mere fact of your spouse's employment by the Agency is not an "interest" in a proceeding for purposes of Rule 2.11(A)(2)(c).
3. Are there circumstances in which you need to disclose that an attorney appearing before you is from the law firm that is corporate counsel for the Agency?
4. Are there circumstances in which you need to disclose that an attorney appearing before you is on the board of the Agency?
Answer to Questions 3 and 4: We agree with Opinion No. 2003-4 that the mere fact that an attorney's law firm is counsel to the Agency or that an attorney serves on the board of the Agency does not require disqualification or disclosure.
5. May you order referrals of the parties for services to be performed by the Agency that are outside of your spouse's area of responsibility whether (a) by agreement or (b) on a contested basis?
Answer: Yes. So long as your spouse would not be involved in the provision of services, or in the supervision of any person administering those services, you may make the referrals. In cases involving developmental disabilities, where your spouse is likely to be involved or to be involved with those who are involved, you should not participate in making referrals.
6. May you hear matters in which an employee of the Agency is (a) a substantive witness or (b) a keeper of records witness in a case before you, but is not an employee who works within the scope of your spouse's responsibility?
Answer: Yes. So long as the prospective witness is not an employee who is supervised or managed by your spouse, you may hear these matters.
7. If I am able to hear some but not all of these matters, in which instances must I make a disclosure?
As set forth above, you are permitted to hear the cases about which you have inquired. Comments  and  to Rule 2.11 furnish additional guidance to judges to assist them in assessing when disqualification is required or disclosure is advised.(3)
(1) This opinion relies on the facts you have provided to the Committee on Judicial Ethics. If material facts have been omitted or misrepresented, this opinion is without force and effect.
(2) The Final Report stated, "Rule 2.11 corresponds to Canons 3E and 3F [of the 2003 Code], but Rule 2.11 emphasizes that a judge is disqualified from any matter if the judge cannot satisfy both a subjective and an objective standard. Paragraph (A)(5)(b) is more expansive than the Commentary to Canon 3E, and Paragraph (A)(5)(d), which precludes a judge from hearing on appeal a case that he or she previously heard in another court, is new. Paragraph (C) makes explicit the previously implicit requirement that the consultation must be free from coercion, express or implied. The Comments correspond to the Commentary to Canons 3E and 3F. The example in Comment  is new, as is Comment , which clarifies that a judge's obligation not to hear or decide matters when disqualification is required applies whether or not a motion to disqualify has been filed."
(3) The Committee has given you the best advice it is capable of giving in light of the facts you have presented. If your spouse's role evolves or expands, reexamination may be required.