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Ethical Opinions for Clerks of the Courts
This opinion is in response to your inquiry dated December 16, 2016. You seek an opinion regarding what implications arise as a result of your appointment as ________ of the ______________ Court. Your spouse is currently a Committee for Public Counsel (CPCS) staff attorney specifically assigned to your court. You state that as ___________ you would be "making probable cause determinations following arrests, conducting show cause hearings" and hopefully acting as a session clerk if staffing issues require. You report that because of your appointment as ____________, arrangements are being made to transfer your spouse outside of the jurisdiction of the court where you work.
You have inquired: (1) whether you will need to recuse yourself from all cases involving CPCS if your spouse continues to practice within the _____________ Court Department but outside your court’s jurisdiction; (2) if you will need to recuse yourself from all CPCS-related cases if your spouse continues to be a CPCS employee; and (3) if you will be required to recuse yourself from CPCS-related matters if your spouse remains employed by the Committee but in a role other than staff attorney for the particular Division that serves your court department.
These questions concern the interpretation of Canon 4 of the Code which addresses impartiality and disqualification. It requires that the "Clerk-Magistrate shall perform the duties of Clerk-Magistrate impartially and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch of government." Citing this Canon, this Committee has issued recent decisions that indicate that it would not be appropriate for a Clerk-Magistrate to handle cases involving a close family member. See Opinion 2013-2. You state, however, that your spouse will not be working within the jurisdiction of the court where you serve, and you ask instead whether you need to recuse yourself from all CPCS cases
while your spouse continues to be employed by CPCS. All three of your questions inquire about your duty to recuse if your spouse remains employed by CPCS either as a staff attorney or in another role.
In the view of the Committee, the fact that your spouse is employed by CPCS does not in and of itself require your recusal from all matters involving this statewide agency provided that your spouse does not work in the jurisdiction of your court. Although in Opinion 2013-2 the
Committee opined that it would not be appropriate for an Assistant Clerk to exercise magisterial functions in matters involving other members of the firm where the clerk's spouse was employed, the Committee believes that your situation is different. Unlike in Opinion 2013-2 where the Committee found that the clerk's economic interest in work from the spouse’s firm could give rise to an appearance of impartiality, your spouse obtains no financial benefit from the success of other CPCS lawyers. Unlike in a law firm, your spouse's interest in the success of CPCS cases unconnected to his/her personal work is more attenuated, and does not present the type of interest that would implicate or appear to implicate your partiality. Therefore, without a more direct interest or connection, the Committee does not believe that your recusal from all cases involving CPCS is required.
There are circumstances, however, where your recusal may be appropriate. Should your spouse have a supervisory or other role involving a matter or a lawyer appearing in your court, your recusal may be required. Also, you may have a relationship with certain colleagues of your spouse that would make recusal appropriate. You inquire about your spouse taking on a role other than staff attorney. A managerial or supervisory role that would give your spouse a direct interest in matters coming before the court where you serve would require your recusal.
In short, it is the view of the Committee that if your spouse is transferred by CPCS outside of the jurisdiction of the court where you are ___________, you would not be required to automatically recuse yourself from all matters involving CPCS. If your spouse takes on a supervisory or managerial or other role related to matters that are in your court, recusal would be appropriate. In other circumstances, on a case by case basis, Canon 4 would require your recusal in any matter where your impartiality might reasonably questioned. This is necessary because, as often stated by the Committee, "the appearance of impartiality is as important as actual impartiality in promoting public trust and confidence in the courts." Finally, the Committee notes that in certain circumstances, the provisions of Canon 4(E) of the Code regarding disclosure may be appropriate. This Canon, relative to Disqualification, states in part that "A Clerk-Magistrate who would be so disqualified may, instead of withdrawing from the proceeding, disclose on the record the basis of disqualification."
Christine P. Burak, Esq.
Secretary, Advisory Committee on Ethical Opinions