Recusal: Proceeding Involving Former Partners
March 6, 1989
CJE Opinion No. 89-2
You have stated that you were sworn in as a justice of a Juvenile Court in late 1986. A final accounting between yourself and your former partners occurred six months later. Your former partners have served, and are expected to serve in the future, as attorneys and court-appointed investigators in care and protection cases in your Juvenile Court. You indicate that you have recused yourself in cases where your former partners appear as counsel and will continue to do so. You ask, however, whether you need recuse yourself in cases where they have been appointed (after January 1, 1988) as investigators. (It is assumed that the appointment was made by another judge.)
You also state that in 1984 you were appointed as one of three representatives of a county bar association to the board of directors of a legal services organization (LSO). LSO provides legal services to indigent people in your area on such civil matters as landlord/tenant, social security, welfare, elderly, homeless and domestic relations cases. LSO does not represent any party that has a right to a court-appointed attorney and its staff members do not appear in juvenile court. You ask whether you may continue to serve on the board of directors.
With respect to your first question, Canon 3(C) of the Code of Judicial Conduct (Supreme Judicial Court Rule 3:09) provides:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(b) he served as a lawyer in the matter of controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
A court-appointed investigator in a care and protection case "may be called as a witness by any party for examination as to the statements made in [his] report." G.L. c. 119, §21. Consequently, it must be determined whether the disqualification set out in Canon 3(C)(1)(b) applies to all cases where one of your former partners may be called as a witness in his capacity as investigator or whether the disqualification relates only to a case where one of your former partners served as investigator during his association with you.
The language of Canon 3(C)(1)(b) is somewhat ambiguous. "[S]uch lawyer" could refer only to "a lawyer with whom [the judge] previously practiced law" or to incorporate also the notion in the previous clause that the matter was in the office during their association. The committee concludes that the latter interpretation is more reasonable. There do not appear to be substantially greater reasons for wholesale disqualification of a judge when a former partner appears as a witness than when a former partner appears as a lawyer. Moreover, use of the past tense ("has been a material witness") seems to refer back to a prior time period. Compare the more inclusive use of the present tense in Canon 3(C)(1)(d)(iv). Finally, Canon 3(C)(1)(b) appears particularly concerned with the effect a judge's personal knowledge of the facts or parties in a case may have on his impartiality. The Canon deals with situations where the judge, himself, was a lawyer or a witness in the case and goes on to impute the knowledge of an associate to the judge. It is a reasonable concern that knowledge of an associate might have been (or might be perceived to have been) the subject of office discussion. However, knowledge gained by a former associate after the association ended would pose significantly less concern.
Since the committee concludes that there is no across the board disqualification from a care and protection case in which one of your former partners is the investigator, "the question of disqualification is left to . . . [your] discretion" in those cases where your former partner was not an investigator during his association with you. Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). As the Supreme Judicial Court has indicated, 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), quoting Canon 3(C)(1). (1)
With respect to your service on the board of directors of LSO, Canon 5(B) provides that "[a] judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members . . . ." Subparagraph (1) of Canon 5(B) further provides, however, that
[a] judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court. (Emphasis supplied.)
The first part of Subparagraph (1) does not apply here since LSO attorneys do not appear in the juvenile courts. As to the second prong of the prohibition, to be "regularly engaged" means more than to appear on occasion or even frequently. The organization must appear in adversary proceedings in any of the courts of the Commonwealth as a substantial part of its overall activities. From what you have stated, it appears that LSO is so engaged. It is true that a judge may serve as a director of "an organization devoted to the improvement of the law, the legal system, or the administration of justice." See Canon 4(C). However, even if LSO was deemed such an organization, the specific prohibition in canon 5(B)(1) would be controlling. Accordingly, that provision bars your service as director. (2)
1. Generally, unless specific language of a canon is implicated or unusual circumstances are present, the committee will not render advice on recusal issues and judges should continue to be guided by the case law in this area.
2. It is unnecessary to determine whether LSO is "conducted for the economic or political advantage of its members." In that regard, the Commentary to the A.B.A. Code of Conduct and the Code of Conduct for United States Judges have noted with reference to their identical Canon 5(B) that "the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication."