You have requested the advice of this committee with respect to the applicability of the Code of Judicial Ethics to your ability to appoint a particular lawyer as guardian ad litem in very tough and sophisticated custody and visitation cases when the lawyer's spouse is your colleague on the Probate and Family Court. You have also informed this committee that before your colleague was appointed to the bench you had appointed the spouse as guardian from time to time. You wish to continue this practice in order to take advantage of the lawyer's special expertise.
The committee has addressed the general subject matter of this inquiry quite recently. In Opinion 89-5, it interpreted Canons 1 and 2, which address general standards of conduct and avoidance of the appearance of impropriety and in particular the prohibition imposed on a judge not to "lend the prestige of his office to advance the private interests of others . . . ." We advised that it would violate these canons for a judge to claim reimbursement from the Commonwealth for renting an apartment from the spouse of a colleague while assigned away from home when that apartment was not available for rental by the public generally.
The committee relied to some extent on Advisory Opinion No. 64 of the Advisory Committee on Judicial Conduct of the Judicial Conference of the United States. That Opinion addressed the circumstances in which it was proper to hire the child of a judge as a law clerk. The federal committee believed that Canons 2 and 3, which in their relevant portions were identical to our canons, were both involved. It advised that it was improper for a judge to hire the child of another judge of the same court but not the child of a judge of a separate, unrelated court.
Having referred to Advisory Opinion No. 64, however, this committee then went on to state explicitly that it did not "mean to suggest that the appointment of a judge's spouse or child as a master, receiver, or bar advocate on the same basis that other lawyers receive such appointments would violate Canon 2. There would be a Canon 2 problem only in an out-of-the-ordinary situation, such as that presented by excessive appointments given to such a spouse."
The present inquiry requires the committee to consider the special circumstance of the appointment of the spouse of a judge who sits on the same court. That requires consideration of both Canon 2 and Canon 3. We have already quoted the relevant language of Canon 2. Canon 3(B)(4) provides that a judge "should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism." Those rules led the federal advisory committee to draw a distinction in the matter of appointing judges' children as law clerks between a fellow judge sitting on the same court and a judge sitting on another court, forbidding the appointment in the former case but generally not in the latter case.
This committee believes, however, that the situation with respect to appointment of guardians is considerably different from that of appointment of a law clerk. Appointment of a law clerk involves selection of one person to work for the judge on a relatively long-term basis. Probate and Family Court judges appoint many guardians and the guardians do not work for the judge. Absent extraordinary conditions, such as excessive appointments, the committee believes that as a general rule appointment of the spouse of a colleague as a guardian on the same basis that other attorneys are appointed does not per se involve favoritism, nepotism, or the forbidden use of the prestige of the judicial office to advance the private interests of others. It should therefore not be precluded automatically.
When the federal advisory committee considered the propriety of a district judge hiring as a law clerk the child of a court of appeals judge in the same circuit, it declined to adopt an absolute prohibition but stated that the judge should consider the facts of the individual case before reaching a conclusion. In particular, the advisory committee stated that the judge should consider whether the appointment would "constitute favoritism, in fact or appearance. The hiring judge . . . should examine the personal and formal contacts he has with the parent of the applicant. Ethical questions cannot always be answered by per se rules and in this instance, as in others, the decision must of necessity be that of the judge."
The committee finds that advice to be useful for responding to this inquiry as well. It sees no per se impediment in the canons to your continued use of the lawyer as guardian so long as appointments are made on the same basis that other persons receive such appointments. We do believe, however, that each time a judge considers an appointment of a relative of a colleague, the judge should consider the particular circumstances of his or her relations with the colleague in making a determination whether the prohibitions of Canon 2 and Canon 3(B)(4) apply. In that regard, we consider it an important factor that you had already been appointing this lawyer as a guardian from time to time prior to the appointment of your colleague to the bench.