CJE Opinion No. 99-9
Serving as Adjunct Professor and Sitting on Cases Involving Firm of a Trustee
May 27, 1999
CJE Opinion No. 99-9
You have asked for our advice about the effect of your service as an adjunct professor at a law school in Massachusetts on your ability to sit on cases in which the firm of one of the trustees of the law school appears. You also inquired about two other situations involving that trustee, but we have decided not to address them since you have indicated that they are unlikely to occur.
You have furnished us with copies of the by-laws of the school, which vest operating powers in the board of trustees, including the power to approve salary schedules and salary policies for the faculty. You have informed us that your contract provides that it is subject to ratification by the board. But you have also provided us with an affidavit of the Dean that states that as a matter of practice the terms of employment for adjunct faculty are handled solely by the Dean and that the board of trustees is involved only in general policies and not in the day-to-day operation of the school.
You inquire specifically whether Canon 3(C) precludes you from sitting in a case in which the firm of the law school trustee represents a party. Canon 3(C) requires disqualification of judges in proceedings "where [their] impartiality might reasonably be questioned." From its beginning the Committee has been careful in giving advice to judges about disqualification under the criteria listed in Canon 3(C), which contain both subjective and objective features. We elaborated our views in Opinion 89-8:
"In CJE Advisory Opinion 89-2 (1989), we indicated that we would be reluctant as a committee to advise judges in making recusal decisions on a case-by-case basis. Obviously this committee is not in a position to advise a judge with respect to the subjective test; here, '[i]n general, the question of disqualification is left to the judge's discretion.' Commonwealth v. Gogan, 389 Mass. 255, 259 (1983). The same is true, although to a lesser extent, of the general objective inquiry - Might the judge's impartiality reasonably be questioned? - where none of the specific examples listed in the canon is applicable. These are questions of judgment which will often turn on slight differences of factual context, including such factors as the inconvenience to the court and the parties if the judge should decide to recuse himself or herself. Doubtless there will be situations presenting a general question of a type apt to recur where the objective appearance of partiality is so manifest as to call for expansion of the canon's list of particular factual contexts in which recusal is called for. If particular cases should arise presenting such situations, we will of course so inform a judge who seeks an advisory opinion on the subject. Except in such cases where recusal is called for automatically on the basis of an objective criterion, we shall, as indicated in CJE Advisory Opinion 89-2 (1989), decline to furnish a recommendation as to how a judge should exercise his judgment in deciding whether to recuse himself . . . ."
We do not think that the situation you present to us calls for automatic disqualification. The trustees have formal power with respect to your contract as adjunct professor, but you and the Dean of the law school both describe the relationship between that contract and the board of trustees as non-existent. Consequently, the only possible issue that could be raised is one of appearance. Given that the question to which we are responding involves representation only by members of the trustee's firm and not the trustee herself, we believe that no reasonable issue of your impartiality could be raised solely by reason of an appearance in your court by a member of the firm in which a trustee of the law school is a partner. You will have to answer for yourself whether there are additional facts or circumstances not mentioned in the letter that could raise a problem.