Recusal: Spouse is Employed by Nonprofit Organization Serving the Disabled

March 14, 2003

CJE Opinion No. 2003-4

You have asked a series of questions regarding the propriety of your hearing cases involving the agency that employs your spouse. Your spouse is currently the associate executive director of a nonprofit corporation that serves the disabled. Her position is the equivalent of being a senior manager. You and your spouse anticipate that this entity, which you have characterized as the "existing agency," will be acquired by a somewhat larger nonprofit corporation that provides a variety of services. The "acquiring agency" in turn is a wholly owned subsidiary of a much larger nonprofit corporation, the "umbrella agency."

The umbrella agency is a family of sixty community-based service agencies that strive to provide cost-effective services in the region in which you sit as a judge in the Probate and Family Court Department. Your spouse will be employed by the acquiring agency as a program manager and will be supervised by the vice-president of the agency. She will not be an officer, director, or trustee of the acquiring agency. She will perform her existing duties and "some expanded ones in the mental retardation field, which are currently provided by the acquiring agency." She would be on the payroll of the acquiring agency and would not be directly involved in the provision of services other than the areas of developmental disabilities and mental retardation. It is your understanding that the acquiring agency does not derive its funding from the umbrella agency.

In the past, there have been circumstances in which you became aware that a litigant was a client of the existing agency. Those cases have usually arisen in the context of guardianship proceedings and sometimes in domestic relation actions. On other occasions you have become aware that an employee of the existing agency was a party and have not heard the matter. You state, without elaboration, that there are also two current areas of litigation against the existing agency in which your spouse is involved. You have recused yourself in one of those areas. In the other, you have disclosed to the attorney appearing on behalf of the claimant that your spouse is a senior manager of the agency and that you have no "personal problem hearing the attorney in this unrelated matter." You further state that in such circumstances you have given counsel and the parties the opportunity to appear before another a judge, and that option has invariably been declined.

Both the acquiring agency and the umbrella agency are providers of services far beyond the scope of those now provided by the existing agency. You have informed the committee that, in one fashion or another, these agencies provide such services 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. As a Probate and Family Court judge you are understandably concerned that the new corporate arrangement will affect a significant number of the cases that may come before you. The agencies involved in the new arrangement provide services that are utilized by litigants who appear before you. Services may also be accessed through court referrals. Participation or compliance with service referrals and evaluations are factors that you consider in deciding cases that regularly come before you. These cases include petitions for guardianship, domestic relation and custody decisions, and termination of parental rights.

Against this backdrop, you have asked this committee to respond to the following questions:

1. Are you permitted to hear cases in which the litigant is an employee of the acquiring agency, but is not directly or indirectly supervised by your spouse?

2. Are you permitted to hear cases at all in which the litigant is an individual served by the acquiring agency, but is not directly or indirectly served by your spouse?

3. Are you permitted to hear cases at all in which the litigant is an employee of the umbrella agency, but is not directly or indirectly supervised by your spouse?

4. Are you permitted to hear cases at all in which the litigant is an individual served by the umbrella agency, but is not directly or indirectly served by your spouse?

5. 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 either agency?

6. You are aware that a number of local attorneys serve on the boards of the acquiring agency and the umbrella agency. Given that information, are there circumstances in which you need to disclose that an attorney appearing before you is on the board of either agency?

7. May you order referrals of the parties for services to be performed by any of the entities outside of your spouse's area of responsibility whether (a) by agreement or (b) on a contested basis?

8. May you hear matters in which an employee of the acquiring 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?

9. May you hear matters in which an employee of the umbrella 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?

10. If you are able to hear some but not all of these matters, in which instances must you make a disclosure? (1)

The relevant Canon is 3 (C) (1), which provides in pertinent part that:

"(1) A judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned, including but limited to instances where:

* * * * *

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial or other property interest in the subject matter in controversy or in a party to the proceeding, which interest could be substantially affected by the outcome of the proceedings;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party; [or]

* * * * *

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

The nature of your spouse's relationship to the agencies described in your letter is central to the analysis of the questions you have posed. Given the fact that your spouse is not an officer, director, or trustee of any of the agencies involved in the acquisition, the mandatory recusal provision of Canon 3 (C) (1) (d) (i) is not implicated. As a salaried employee of the acquiring agency, your spouse's income will not be contingent on service referrals or the resolution of specific cases that may come before the court. As a consequence she does not have a "financial or other property interest in the subject matter . . . which interest could be substantially affected by the outcome of the proceedings" as contemplated by Canon 3 (C2019073) (1) (c).

As to whether your spouse, pursuant to Canon 3 (C) (1) (d) (iii), "is known by [you] to have an interest that could be substantially affected by the outcome" of a matter that might come before you, the committee refers you to CJE Opinions 92-1, 96-3 and 2001-16 for guidance. Those opinions address the question whether a spouse or family member within the third degree of relationship was acting as a lawyer in given circumstances, but also provide some guidance as to what constitutes an "interest" in a proceeding.

In CJE Opinion 92-1, the committee addressed the propriety of a judge hearing cases in District Courts in the county where his father was a senior attorney in the office of the district attorney. The committee concluded that, as employed in Canon 3 (C) (1) (d) (ii), the disqualifying phrase "acting as a lawyer in the proceeding" prohibited the son from presiding over cases in which his father had any substantial involvement at any preparatory stage. Similarly, in CJE Opinion 96-3, the committee addressed the propriety of a District Court judge hearing cases in a county where his or her spouse served as the first assistant district attorney. The scope of the spouse's responsibilities, including case assignment and attorney supervision, required the judge's recusal even though the spouse did not actually try cases before the judge. These opinions show that conflict with the relevant Canons may arise not only from a family member's appearance before a judge or his or her supervision of attorneys who appear before the judge, but also from the family member's substantial involvement in any stage of the proceeding. This might encompass implementation of policy in the context of specific cases.

In CJE Opinion 2001-16, the committee addressed the question of a judge hearing cases in a District Court in the county to which his son, who had recently become a member of the bar, was to be assigned as an assistant district attorney. The son would not be assigned to the judge's session, nor would he have any supervisory authority over the district attorney's staff in that court. The fact that the son would not appear before the judge and would not exercise any supervisory authority over persons who did appear, and would not have any substantial involvement at any stage of the proceedings with cases that came before the father, obviated any ethical concerns. The "mere fact" of the son's employment in the prosecutor's office did not require recusal from criminal proceedings in which other attorneys from the same office appeared.

Opinion 2001-16 was cited in CJE Opinion 2002-17, which addressed the propriety of a judge sitting on criminal cases in the county in which her fiance was an assistant district attorney. The judge's fiance was assigned to a specific unit within the district attorney's office, but he held no administrative or supervisory position. The committee concluded that the fiance's interest in the success of the district attorney's office, and in units other than his, was attenuated absent a showing of direct or supervisory involvement in a proceeding before the court. The judge's fiance received no financial or direct professional benefit from the success of the district attorney's office. While he may or may not have had a personal preference for the overall development of the law from a prosecutorial perspective, the fact that a spouse or prospective spouse has a point of view on particular legal issues has not traditionally been a basis of disqualification without a showing that he or she has a more direct interest in, or connection to, the proceeding.

Extrapolating from these opinions, it is the opinion of this committee that there is no problem with your hearing the matters described in your questions one through four, as your spouse does not, directly or indirectly, supervise any employee involved with litigation with the acquiring or umbrella agency. Likewise, your spouse would not be involved in overseeing services provided to any consumer of either the acquiring or umbrella agency with any substantial involvement in any proceeding that comes before your court.

Questions five and six concern the need to disclose that an attorney appearing before you is from the law firm that is corporate counsel for the acquiring or umbrella agency or is on the board of directors of either entity. Assuming that your spouse has no interest in the outcome of the proceeding, the mere fact that the attorney's law firm is counsel to the agencies would not require recusal or disclosure.

Question seven raises the issue of agreed to or contested referrals to the agencies "outside" of your spouse's area of responsibility. Given the subject matter jurisdiction of your court, such service referrals are routinely made and, as you have noted, the scope of the new corporate arrangement encompasses a large number of the service providers in the region in which you sit. In CJE Opinion 2001-5, which you have cited, the committee responded to a judge's query concerning the appropriateness of making service referrals. The judge was a member of the board of directors of a health care organization that was a component of a parent company engaged in the delivery of health care services of various kinds and descriptions. The panoply of services provided by the health care providers is not dissimilar to the type of services described in your letter. The salient difference, however, is that neither you nor your spouse is a board member, officer, or director of any of the agencies involved in the acquisition. Neither of you has any fiduciary or proprietary interest in the agencies or the proceedings in which they are involved. If your spouse would not be involved in the provision of services in cases you refer, or in the supervision of any person administering those services, the committee is of the opinion that you may make the referrals. In cases involving developmental disabilities and mental retardation, where your spouse is likely to be involved, or to be involved with those who are involved, the committee advises that you should not participate in making referrals.

Questions eight and nine concern appearances of employees of the acquiring or umbrella agencies as substantive witnesses or as keepers of records. In both situations, the primary concern remains the nature of your spouse's interest or involvement in the litigation. As long as the prospective witness is not an employee who is supervised or managed by your spouse, neither disclosure nor recusal is necessary.

Although the committee has given you the best advice it is capable of giving in light of the facts you have presented, the committee is also aware that the environment in which are operating is not static, and many situations may arise in which you will be required to reexamine the general principles the committee has outlined here. All of them will clearly require reexamination if and when your spouse's role as the project manager becomes more clearly delineated or evolves.

Finally, as noted in CJE Opinion 2001-16, even when there is no per se requirement for recusal, the question whether you should nevertheless disqualify yourself from a case or a particular series of cases is left to your discretion. You have, for example, exercised this discretion on prior occasions when you have ascertained that an employee of the existing agency was a party in a matter that came before you. In regard to the question of the exercise of judicial discretion, the Supreme Judicial Court has stated, if "[f]aced . . . with a question of his capacity to rule fairly, the judge [should] . . . consult first his own emotions and conscience. If he passe[s] the internal test of freedom from disabling prejudice, he must next attempt an objective appraisal of whether this [is] 'a proceeding in which his impartiality might reasonably be questioned.'" Lena v. Commonwealth, 369 Mass. 571, 575 (1976).

 


1. Although some of these questions have characteristics of hypotheticals, which the committee cannot answer, see Supreme Judicial Court Rule 3:11 (2), the committee believes that your overall request and your specific questions are concrete enough to permit the committee at least to advise you regarding what the committee believes are the governing principles.