Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff
March 5, 1992
CJE Opinion No. 92-1
You have written to this Committee for advice regarding the propriety of hearing cases in two particular District Courts by reason of the fact that your father is the senior attorney in the office of the District Attorney that handles cases in those District Courts. You ask two questions, one quite specific and the other more general.
The first question relates to your ability to hear de novo retrials of cases originally tried by your father. Your father will not appear in cases that you hear and unless someone informs you, you will not know as a matter of course whether you are hearing a case tried originally by your father.
The relevant Canons of Judicial Ethics are Canons 3(C)(1) and (3)(D), which provide in relevant part:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where: . . .
(d) . . . a person within the third degree of relationship . . .
(ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . . .
(D) A judge disqualified by the terms of . . . Canon 3(C)(1)(d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the lawyers, after consultation with their clients independently of the judge's participation, agree in writing that the judge's relationship is immaterial . . ., the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all lawyers, shall be incorporated in the record of the proceeding.
Canon 3(C) has both a general prohibition and specific applications. The former covers all situations in which a judge's impartiality might reasonably be questioned. The latter cover a wide range of which the two subsections quoted above seem most relevant. Whether your father "is" acting as a lawyer in the proceeding because he tried the case in the primary court can be argued both ways. In our view, that language should be read to cover any relevant, substantial prior involvement of your father in any case in which you are sitting. While the case may be before you for trial de novo, the work done by your father in the bench trial is presumptively relevant to the lawyer trying the de novo appeal. That lawyer would presumably be working from the file prepared by your father as the person who tried the case below.
Our interpretation is reinforced by the advice given by the Federal Advisory Committee on Judicial Activities in its Advisory Opinion No. 38 (1974). A judge inquired whether he would be disqualified in all cases in which the United States Attorney's Office appeared if his son were to accept a position as an Assistant United States Attorney. The Advisory Committee noted the difference between the obligations of the United States Attorney's Office and a private law firm and the different nature of the associations between government lawyers. It went on to advise that automatic disqualification was not called for in view of the fact that the son intended neither to appear before his father nor to perform any services in cases assigned to the father. Moreover, the fact that the court worked on an individual assignment calendar would make it possible to "avoid the appearance that the judge's son may have inadvertently worked on briefs or investigations in cases heard before his father." The implication of this Opinion is that the advice would have been different if the son had performed any work in cases heard before his father. In trying the case below, your father certainly has performed work on the case that will be relevant to the trial before you.
Even if we were to read Canon 3(C)(1)(d)(ii) very literally to cover only the case where your father was acting as a lawyer in the de novo appeal, we would nevertheless conclude that his past work in the very case brought the matter within the general rule of Canon 3(C)(1) as a matter in which your "impartiality might reasonably be questioned." The reason for reading subsection (d)(ii) broadly is the very same reason for concluding that the situation you pose falls within the general prohibition.
Canon 3(C)(1)(d)(iii), quoted above, may also be relevant to this case. Since your father tried the case and secured a conviction below, it could be argued that he had an interest that could be substantially affected by the retrial. The term "interest" arguably covers reputation interest as well as financial or other property interest. In one sense, a prosecutor who secures a conviction at an initial trial has an "interest" in seeing his work vindicated on appeal de novo. That might be argued to be sufficient to invoke this subsection. (1) Our interpretations of Canon 3(C)(1) and 3(C)(1)(d)(ii), however, resolve the present inquiry. We merely note the problem of Canon 3(C)(1)(d)(iii) and reserve a resolution for the future.
If we are correct in our interpretation of Canon 3(C)(1)(d)(ii), there is still the matter of Canon 3(D) to be considered. It gives you the option of disclosing the basis of your disqualification on the record and permitting the lawyers, after consultation with their clients, to waive the disqualification. Whether a judge should seek remittal is a sensitive matter that is left to the judge's discretion.
We should mention the following matters in connection with your decision. The United States Judicial Conference in 1971 adopted a resolution, applicable to Federal judges, stating that judges should reach their own decisions with respect to recusal without calling on counsel to consent because a consent request was "fraught with potential coercive elements which make this practice undesirable." (Resolution L.) Thereafter Canon 3D was removed from the United States Code of Conduct for Judges. On the other hand, it has not been removed from Rule 3:09, and is therefore still available for use in appropriate cases. Judges should, however, be alert to the potentiality that coercion might be perceived by counsel who constantly appear before the judge.
We are also concerned about cases -- and this appears to be one -- in which the factual situation calling for disqualification relates not only to the particular parties but also has broader public aspects. Consent of the parties is less of a cure in such cases. We therefore suggest that you consider most carefully whether this is a situation in which remittal of disqualification is appropriate.
We now turn to your second, more general question, the question whether any impropriety is involved simply by reason of your hearing cases in the primary court when your father is senior attorney in the office of the District Attorney. That question is much more difficult for us to answer. We agree with the general tenor of the advice given by the Federal committee in its Advisory Opinion No. 38. There the ability of the father to sit turned on the son's lack of involvement in cases in which the United States Attorney's Office was appearing before him. The touchstone in the rule, in that opinion, and in the first part of our opinion is the involvement of the relative in the particular matter. If the son in Advisory Opinion 38 had been appointed the United States Attorney, with supervisory authority over every case, we believe that the advice would have been quite different and would have mirrored the action that occurred when Charles Evans Hughes became Chief Justice of the United States at the time that his son was Solicitor General. To avoid the disqualification of his father in cases in which the Solicitor General's Office appeared for the United States, the son resigned.
The issue with respect to your inquiry turns on the responsibility of your father as senior attorney for each case that comes before you in which his office is involved. Your letter states that supervision will come from someone other than your father in all such cases. We believe that it must be not only that supervision comes from another attorney but that your father must have no involvement in, or responsibility for, any case heard by you. It would be consistent with the spirit of the Canons that arrangements to that effect be formalized in a public manner so that the actuality and the public perception coincide.
Advisory Opinion 38 raises one further issue about which you have not inquired, the relation between the practicing lawyer-son in that inquiry and judicial colleagues of his father. We subscribe to the following views expressed in that Opinion.
If the Judge has been on the bench for a number of years or if he is a close friend of one or more members of the bench, an additional problem may arise relating to the son's appearance before other judges of the court. The problem, however, is no different from that encountered when a judge's son or daughter is with a private law firm and must appear before other members of a court. Just as in those other instances, the problem of avoiding the appearance of partiality in this instance must be dealt with depending upon the individual relationships between the son and his father's colleagues.
1. Advisory Opinion No. 38, however, took the opposite view. It noted that the Commentary under Canon 3(C)(1)(d) speaks of the lawyer-relative having "an interest in the law firm" and then makes the argument that a lawyer in the United States Attorney's office does not have an interest in the office as that word is used in the Commentary and the Office is not ordinarily substantially affected by the outcome of a proceeding. The Canon itself, however, does not refer to an interest "in the law firm." It simply speaks of the lawyer having "an interest." That is a different and more general concept, and it is one that might be substantially affected by the outcome of the de novo appeal. We do not need to determine in this inquiry whether the Commentary (which was not adopted by the Supreme Judicial Court) has accurately interpreted the text.