LEO: Personal Interest Between Circuit Judge LE Op

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

become operative.

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

CROSS REFERENCES