Opinion  CJE Opinion No. 2023-01

Date:	05/04/2023
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Disqualification: Litigant is Employed by Entity that also Employs Judge’s Child

You seek guidance from the Committee on Judicial Ethics (CJE or Committee) regarding whether the Code of Judicial Conduct (Code) requires you to disqualify yourself from matters involving individuals who are employed by the same governmental department (Department) that employs your child and with which you have had a number of additional contacts over the years. As explained below, we decline to declare that you should disqualify yourself as a matter of course from all such matters.  Instead, where you have conducted a subjective analysis and determined that you can be impartial, you should conduct an objective analysis by carefully considering the facts and subject matter of each case that comes before you to determine whether your impartiality may be reasonably questioned by a fully informed disinterested observer. We offer several factors to aid you in this fact-specific assessment and note that disclosure may be an appropriate course even where you do not believe there is a basis for your disqualification.    

1. Background.¹ You reside in an area served by the Department and, over the years, have had several connections with the Department. Your child, who lives with you, is employed by the Department. Your father is a retired Department employee. Three cousins (your first cousin-in-law, first cousin once removed, and second cousin once removed) are also employed by the Department.  You state that you do not regularly socialize with these cousins. Additionally, your long-time next-door neighbor holds a leadership position at the Department. While you do not socialize, you communicate in a neighborly fashion and are generally aware of each other’s comings and goings due to your adjacent yards.

Since childhood, you have participated in a public annual event organized by an entity that is closely affiliated with the Department and have attended an informal reception following the event. To recognize your contributions to this annual event, you were made an honorary member of this affiliated entity. As an honorary member, you did not attend meetings, receive communications, or otherwise participate in the entity’s activities. To the best of your recollection, you resigned from this honorary position when you were appointed to the bench many years ago. 

Now, a party to a case pending before you seeks your recusal because, “on information and belief,” another party to the proceeding and your child are employed by the same Department, are in the same unit or division, and have attended the same social events. For your part, you state that you have no independent knowledge of these assertions. While the fact of the non-moving party’s employment and incidental details related to that employment may be relevant to resolution of the pending matter, it is not evident to the Committee that the identity of that party’s employer is itself particularly central to resolving any of the questions at issues. 

In accordance with the guidance set forth by the Code, our prior opinions, and the Supreme Judicial Court’s decision in Lena v. Commonwealth, 369 Mass. 571 (1976), you have conducted a subjective analysis by consulting your “own emotions and conscience” and have concluded that you can hear this case impartially, free from “disabling prejudice.”  Lena, 369 Mass. at 575.  However, you have asked the Committee whether an objective analysis nonetheless requires you to disqualify yourself from hearing the case now pending before you and, more broadly, whether your connections with the Department are such that you should disqualify yourself from any matter in which a party is an employee of the Department. 

2. Discussion. “An independent, fair, and impartial judiciary is indispensable to our system of justice.”  Code, Preamble. See also Rule 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”); Rule 2.4(C) (a judge “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge”). Therefore, Rule 2.11 requires that "[a] judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge's impartiality might be reasonably questioned.”  Rule 2.11(A). The test for disqualification requires that the judge satisfy both a subjective and an objective standard. “The subjective standard requires disqualification if the judge concludes that he or she cannot be impartial. The objective standard requires disqualification whenever the judge’s impartiality might reasonably be questioned by a fully-informed disinterested observer, regardless of whether any of the specific provisions of Paragraphs (A)(1) through (5) apply.” Rule 2.11, Comment [1].

Rule 2.11(A)(1)-(5) provide examples of circumstances in which disqualification is required, including when:

• “The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.” Rule 2.11(A)(1).
• “The judge knows that the judge, the judge’s spouse or domestic partner, or a person within a third degree of relationship to either of them, or the spouse or domestic partner of such person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis financial or other interest that could be substantially affected by the proceeding; or (d) likely to be a material witness to the proceeding.” ² Rule 2.11(A)(2).
• “The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or is a party to the proceeding.” ² Rule 2.11(A)(3). 

Where disqualification is required for reasons other than prejudice or bias, Rule 2.11(C) permits a judge to disclose on the record the basis of the disqualification to give the parties an opportunity to waive disqualification. However, judges are cautioned against over-reliance on this waiver provision.  See CJE Opinion No. 2018-04. But even if a judge does not believe that there is a basis for disqualification under either the subjective or objective standard, the judge must disclose on the record information that the judge believes the parties or their lawyers may reasonably consider relevant to a possible motion for disqualification. Rule 2.11, Comment [5]. 

Where, as here, no specific provision of Rule 2.11(A) applies and you have represented that you have satisfied the subjective standard, the Committee is generally reluctant to set forth bright-line rules concerning whether the objective standard requires disqualification, as the assessment of whether the appearance of partiality exists in any particular proceeding is highly fact specific. However, prior Committee opinions, under the current Code and analogous provisions of prior Codes, provide guidance regarding factors a judge should consider in evaluating his or her own impartiality and whether the judge's impartiality may be reasonably questioned with respect to any particular matter.

See CJE Opinions No. 2018-04 (individualized, multi-factor analysis is a better approach to evaluating questions of disqualification than a bright-line rule), No. 2016-12, No. 2016-11, and No. 2006-01. 

While the Committee has not yet formally answered the precise question now before us, we have had opportunities to consider disqualification in circumstances in which a judge’s relative is associated with a party to a proceeding before the judge. In CJE Opinion No. 2016-12, for example, we confronted the question of disqualification when a litigant appearing before a judge was employed by the same nonprofit organization that employed the judge’s spouse. There, we concluded that recusal was not required so long as the judge’s spouse was not an officer, director, general partner, managing member, or trustee of the organization, the spouse did not directly or indirectly supervise the litigant, and the spouse did not have a financial interest in the resolution of the proceeding. The mere fact of the spouse’s employment by the organization was not itself a sufficient “interest” in the proceeding to necessitate disqualification. See also CJE Opinion No. 2003-04 (evaluating the same circumstances and reaching the same conclusions under analogous provisions of a prior version of the Code); Frequently Asked Questions at pp. 11-12.  Cf. Rule 2.11, Comment [4] (“The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge.”). And in CJE Opinion No. 2006-06, decided under the prior Code, the Committee advised that a judge need not disqualify himself or herself from hearing guardianship cases brought by a hospital on behalf of patients who were to be discharged solely because the judge’s child’s spouse was employed by the hospital. The Committee was so persuaded because the hospital had no financial or other identifiable interests in the outcome of the proceedings and the child’s spouse was neither an officer, trustee, or member of the hospital board of directors nor directly involved in the guardianship proceedings before the judge. 

Here, consistent with our prior opinions, we decline to declare a bright-line rule that you should disqualify yourself anytime a litigant appearing before you is employed by the same Department that currently employs your child. Instead, we distill from the Code and our prior opinions the following relevant factors that will aid your fact-intensive assessment of the objective standard:

• Whether the Department’s interests are likely to be affected by the proceeding, and, if so, to what degree;
• Whether your child’s interests are likely to be affected by the proceeding, and, if so, to what degree;
• Whether any party to the proceeding is known to you by virtue of their relationship or association with your child and, if so, the nature of that relationship or association;
• Whether you are independently aware of any information that would be relevant to the proceeding as a result of your associations with the Department; and
• Whether any party to the proceeding has direct or indirect supervisory authority over your child.

In addition to your child’s current employment, you have enumerated several other connections that you have had with the Department over the years. But where your child’s current employment with the Department does not trigger application of a per se rule of disqualification, your distant cousins’ employment and your father’s former employment with the Department are even less likely to cause a reasonable disinterested observer to question your impartiality absent unique circumstances. And while “[a] judge must also bear in mind that social relationships may contribute to a reasonable belief that the judge cannot be impartial,” Rule 2.11, Comment [1], here, it does not appear that your relationship with your neighbor, though cordial, rises to that level at this time. Finally, you believe that you resigned from the honorary position with the affiliated entity when you became a judge several years ago.  Moreover, this position does not appear to have conferred any substantial benefits and your participation appears to have been limited to public involvement with events open to anyone who chose to attend.  We therefore conclude that these additional touchpoints, whether considered separately or together, are insufficient to tip the scales in favor of requiring disqualification in all matters concerning individuals who are employed by the Department. ³  

We note, however, that even where a judge concludes that disqualification is not required, disclosure may nonetheless be appropriate. Rule 2.11, Comment [5]. Particularly here, where a party has sought your recusal because of your child’s employment with the Department, it may be advisable to disclose on the record the additional points of contact you have with the Department, even if you ultimately conclude that there is no basis for disqualification under either the subjective or objective standards. 

3. Conclusion. Where you have conducted the requisite subjective analysis and determined that you can remain impartial, the fact that an individual appearing before you is employed by the same Department that employs your child is insufficient standing alone to compel your disqualification from any particular proceeding. Instead, the objective standard requires that you consider the totality of circumstances to determine whether a reasonable observer may have cause to question your impartiality in that proceeding, including if your child’s interests could be affected by the outcome or your associations with the Department have given you special insight into any question or fact at issue in the proceeding. In all cases involving a Department employee, it would be advisable to disclose on the record your connections with the Department, as the parties or their lawyers may reasonably consider that information relevant to a possible motion for disqualification.

1. This opinion relies on facts you have provided. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force or effect.

2. The “third degree of relationship” includes great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Code, Terminology.

3. Of course, should the nature of your child’s employment or your other associations with the Department change, the analysis of the subjective and objective standards may likewise evolve.