LEO: Personal Interest Between Circuit Judge LE Op. 845
Personal Interest Between Circuit Judge and Employee
of Law Firm Which May Preclude Representation.
February 27, 1989
Subject: Personal Interest Between Circuit Judge and Employee of Law Firm
Which May Preclude Representation.
Conclusion: It is not improper for a member of a law firm to appear
before a judge whose wife is employed as an office administrator by that
firm as long as the judge complies with the requirements of the Canons of
Judicial Conduct and the law firm is sensitive to the requirements of DR:
5-101(A) which, under certain circumstances, may require disclosure to the
client of the relationship.
Discussion: Disciplinary Rule 9-101(C) of the Virginia Code of
Professional Responsibility prohibits a lawyer from stating or implying
the ability to influence improperly a tribunal, legislative body or public
official. The committee feels that DR:9-101(C) does not require
disqualification of a law firm simply because a personal relationship
exists between members or employees of the law firm and the judge.
Disciplinary Rule 5-101(A) prohibits a lawyer from accepting employment if
the exercise of his professional judgment on behalf of his client may be
affected by his own financial, business, property or personal interests,
except with the consent of his client after full and adequate disclosure
under the circumstances. The Committee is of the opinion that the law firm
must be sensitive to the requirements of DR:5-101(A) and make
appropriate disclosures, while recognizing, however, that inappropriate or
unnecessary disclosures could be violative of DR:9-101(C).
Several Legal Ethics Opinions dealing with familial relationships between
a judge and members or employees of a law firm are based upon Disciplinary
Rule 9-101(C) and Canon 3 of the Canons of Judicial Conduct.
LE Op. 624 provides that it is not improper for a lawyer to appear
before a judge even though the lawyer's law partner is married to the
judge. Disclosure must be made pursuant to Canon 3 of the Canons of
Judicial Conduct and the judge must be disqualified if his/her
impartiality might reasonably be questioned.
LE Op. 676 provides that there is nothing inherently unethical in a
lawyer appearing before a judge whose brother, brother-in-law or son is in
the attorney's firm. However, it is incumbent upon the judge in those
circumstances to make disclosure on the record, and, unless the parties
and counsel agree, disqualify himself from further participation. LE Op.
676 also states that it is not improper for a judge's wife, who is the
receptionist in the law firm of the judge's son, to handle case files in
the son's law office so long as the judge's wife does not handle cases
which have been assigned to her husband. Furthermore, the sole fact of the
employment of the judge's wife in the law office of the judge's son would
not require disclosure by the court.
LE Op. 750 states that a lawyer may appear before a judge even though
the lawyer practices law with the judge's daughter.
Pursuant to DR:9-101(C), DR:5-101(A), the Canons of Judicial Ethics,
and the above-cited legal ethics opinions, the committee opines that it is
not improper for a lawyer to represent clients before a judge when the
judge's wife serves as an administrator of the law firm. It is the opinion
of the committee, therefore, that, under certain circumstances, the law
firm should make disclosure of the judge's wife's employment with the firm
on the record. In this situation, if the objectivity and independence of
the judiciary is questioned, then the Canons of Judicial Conduct would
Modified and Approved by Council October 23, 1987
In situations where there is an appearance of impropriety, the burden to
correct this lies with the court. The need for disclosure, waiver or
recusal are matters of judicial ethics, not lawyer ethics, and, therefore,
beyond the purview of the Committee.
Committee Clarification February 27, 1989
See also LE Op. 881.