Recusal: Judge's Family Member is Member of Committee for Public Counsel Services; and Judge Formerly Accepted Appointments from Committee for Public Counsel Services

December 13, 2004

CJE Opinion No. 2004-10        

You have asked this committee's advice regarding the applicability of the Code of Judicial Conduct to having attorneys provided by the Committee for Public Counsel Services (CPCS) -- both CPCS staff attorneys and private attorneys appointed by CPCS -- appear before you, given that a member of your family(1) is a committee member of CPCS and that you regularly accepted appointments from CPCS when you were practicing law. You have also asked whether your making a decision to recuse or not recuse in a specific case is subject to the oversight of the State Ethics Commission. With the information you have provided we shall answer your first question. However, your second question is beyond the jurisdiction of this committee, and we therefore decline to answer.

The pertinent facts are these. You are a judge in the Superior Court. Attorneys provided by the CPCS public defender division and through its private counsel division regularly appear before you, particularly in the busy first criminal sessions of Middlesex and Suffolk counties, where cases involving assigned and appointed counsel account for at least seventy-five per cent of the daily docket.

Your family member, an attorney, currently is a committee member of CPCS. He was appointed several years ago by the Supreme Judicial Court. Also, during your years of private practice before becoming a judge, you regularly accepted appointments from the Massachusetts Defenders Committee and its successor, CPCS.

You state that if CPCS ever appeared before you as a named party, you would certainly recuse yourself. You ask whether, because of your family member's current relationship with CPCS or your prior relationship with CPCS, you have a duty to disclose and recuse in all cases where attorneys are appointed or assigned by CPCS.

Section 3 E of the Code of Judicial Conduct, entitled "Disqualification," provides in pertinent part:

"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
 

"(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer; [or]

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"(h) the judge's spouse or domestic partner, as well as a person within the third degree of relationship to the judge . . . , (i) is a party to the proceeding or an officer, director, or trustee of a party, (ii) is acting as a lawyer in the proceeding, (iii) is known by the judge to have any more than de minimis interest that could be substantially affected by the outcome of the proceeding, or (iv) is to the judge's knowledge likely to be a material witness in the proceeding."

The standard for determining whether a judge should disqualify himself or herself from hearing a matter is both subjective and objective. If the judge determines subjectively that he or she is not impartial for any reason, not just one of the listed reasons, then it is his or her duty to disclose and disqualify. If the judge believes subjectively that he or she can be impartial, then the facts need to be examined objectively to determine whether the judge's impartiality might reasonably be questioned. Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). Lena v. Commonwealth, 369 Mass. 571, 575 (1976)

You were never an employee or staff attorney at CPCS. You, like many other sitting judges, accepted appointments from CPCS or its predecessor while you were a practicing attorney. It would be objectively unreasonable to assume that there is a significant relationship between you and any current CPCS appointed or assigned attorney simply because of your prior service. Likewise, it appears objectively unreasonable that you would have any interest in how a given case is resolved merely because a party in the case is represented by a CPCS appointed attorney or staff attorney. Your prior activities as a CPCS appointed attorney while you were in practice would not rise to the level where your impartiality might reasonably be questioned and, therefore, do not require disclosure or recusal under the Code of Judicial Conduct.

Your family member, an attorney, was appointed by the Supreme Judicial Court to serve as a committee member of CPCS, pursuant to G. L. c. 211D. The committee consists of fifteen uncompensated members. Its charge is to "plan, oversee, and coordinate the delivery of criminal and certain noncriminal legal services by all salaried public counsel, bar advocate and other assigned counsel programs, and private attorneys serving on a per case basis." G. L. c. 211D, § 1. The CPCS committee makes overall policy determinations, such as defining, and establishing uniform standards and procedures for determining, indigency (id. at § 2); monitoring and evaluating compliance with the standards and the performance of counsel (id. at § 10); and setting compensation rates (id. at § 11). The committee does not assign or appoint individual lawyers to specific cases. Rather the committee is charged with establishing a system for the provision of counsel; the actual assignment of counsel, whether from its public defender division or private counsel division, is made by CPCS staff. All of the CPCS committee's responsibilities and duties are statutory.

When CPCS provides an attorney to represent a party, either from its public defender division or private counsel division, CPCS does not thereby become a party in the case. Your family member, serving in the role of committee member, is not a party to any case in which a litigant is represented by a CPCS attorney. Your family member, serving in the role of committee member, is not an attorney in any case in which a party is represented by a CPCS attorney. And in the role of committee member, your family member does not have an interest in any case in which a party is represented by a CPCS attorney. Consequently, your family member's involvement with CPCS does not trigger disclosure or recusal obligations under Section 3 E of the Code of Judicial Conduct.

In sum, as long as you have satisfied yourself that you have no personal bias or prejudice, we see no conflict with the Code of Judicial Conduct in your continuing to hear cases in which parties are represented by attorneys provided by CPCS.


1. Your family member is a person within the third degree of relationship to you, as defined in the terminology section of the Code, but presumably does not reside in your household.