The Code defines three different categories of family relationships: member of the judge’s family, member of the judge’s family residing in the judge’s household, and relatives within the third degree of relationship. Different ethical obligations apply to each group. Some individuals may be in all three groups (e.g. a child, grandchild, parent, grandparent, or sibling who is a member of the judge’s household).
I. Member of the Judge’s Family
This group of family members is any of the following: a spouse or domestic partner; a child, grandchild, parent, grandparent, or sibling, whether by blood, adoption, or marriage; or any other relative or person with whom the judge maintains a close family-like relationship. Residence in the household of a judge may be relevant but is not dispositive when determining whether a judge maintains a close family-like relationship with another relative or person.
Certain relatives, such as cousin, niece, and nephew, are covered by this definition only if the judge maintains a close family-like relationship with that person. In the past, the Committee on Judicial Ethics has considered eight factors to distinguish a close family-like relationship from “mere friendship.” These factors are:
- Intimacy of address
- Recognition by others of a close relationship
- Shared meals
- Frequent in person or phone contact
- Shared holidays
- Shared family events
- Assistance with physical, medical, legal, or emotional needs
- Longevity of the relationship.
The presence of fewer than all the factors has sufficed where the essence of the relationship is nurturing.
The Code creates exceptions to some prohibitions when a judge is interacting with members of the judge’s family. Assuming there is no violation of the Code’s overarching principles, a judge may:
- Solicit members of the judge’s family to join or contribute to legal, educational, religious, charitable, fraternal or civic organizations (Rule 3.7(A)(4));
- Serve as a fiduciary for members of the judge’s family (Rule 3.8(A));
- Give legal advice and draft and review documents for members of the judge’s family (Rule 3.10(A)); and
- Hold and manage investments for members of the judge’s family, including managing or participating in a business entity primarily engaged in investment of the financial resources of members of the judge’s family (Rule 3.11).
A judge may not avoid the restrictions of Rule 4.1 (Political and Campaign Activities) by making contributions or endorsements through a member of the judge’s family. Rule 4.1 also provides that a judge may not endorse, appear to endorse, become involved in, or publicly associate with a family member’s political activity or campaign for public office.
Rule 2.11 requires a judge to disqualify himself or herself if the judge’s impartiality might reasonably be questioned. Disqualification is discussed further in II and III below.
II. Member of the Judge’s Family Residing in the Judge’s Household
This group of family members is any of the following persons who resides in the judge’s household: a relative of a judge by blood, adoption, or marriage; a domestic partner; or a person with whom the judge maintains a close family-like relationship. So long as there is a shared residence, this definition includes, for example, an aunt, uncle or cousin even if the judge does not have a close family-like relationship with that person.
The Code identifies this group to address the possibility that the activities of any family (or family-like) member residing in the judge’s household may be viewed as an attempt to influence the judge directly or otherwise lead to the appearance of impropriety. A judge must disqualify himself or herself if the judge knows that any 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 (Rule 2.11(A)(3)). (See III below for disqualification when a relative is within the third degree of relationship.)
The Code addresses gifts or benefits associated with the business, profession, or other separate activity of a member of a judge’s family residing in the judge’s household that may incidentally benefit the judge. Although the judge may accept and not disclose these gifts or benefits, a judge should remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits (Rule 3.13(B)(8)).
III. Relatives within the Third Degree of Relationship
This broad group of relatives includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. The Code requires a judge to disqualify himself or herself if the judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a 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 in the proceeding. (Rule 2.11(A)(2)).
Rule 2.13, which pertains to a judge’s making administrative appointments, cautions judges to avoid the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.
IV. Other Rules Pertaining to Family Members
Rule 2.11(B) requires a judge to keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse or domestic partner and minor children residing in the judge’s household.
Rule 3.7(C) permits a judge, as a parent or guardian, to assist minor children in their fund-raising activities if the procedures employed are not coercive and the sums solicited are modest.